Keith Locke debates the responsibility of the SAS and the chain of torture under International Criminal Law

Our forces knew for certain that they were likely to be tortured



Over the last couple of days I have questioned the Minister of Defence about revelations that our SAS has been taking prisoners in Afghanistan and handing them over to agencies that either have tortured them or might well have tortured them. As a result of journalist Jon Stephenson’s interviews with Afghans whom our SAS has handed over to US forces in 2002, we know that they were, in effect, tortured, and some of them were sent to Guantanamo Bay.

I think an apology from us as a country is due, and possibly some compensation. I do not accept the Minister’s view that this is purely a US problem, because when the prisoners were handed over by us in 2002, our forces knew for certain that they were likely to be tortured in Kandahar. There were plenty of reports of torture at the US detention centre at Kandahar.

In respect of the SAS deployment since 2009, the Minister and the New Zealand Defence Force have long claimed that they have not been taking prisoners. When pushed, they have responded by saying that, yes, the SAS soldiers have been “in the vicinity” on 22 occasions in operations the SAS did with the Crisis Response Unit. Yesterday the Minister said that the SAS was “in support” of the Crisis Response Unit on 24 occasions. It stretches credibility to claim that in all the detaining that was done in those joint operations, it was always done by the Crisis Response Unit, on 24 separate occasions. Clearly that is just a legal deception so that our Government can say that however badly those prisoners were subsequently tortured, we bear none of the responsibility, and we had none of the responsibility for following up the fate of those prisoners, because the Crisis Response Unit was the “detaining authority”. I am afraid that legal sleight of hand will not wash with the International Criminal Court if New Zealand is brought before it in relation to the torture of any of those prisoners. The chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, is right now looking at the role of US-led forces in prisoner abuse.

In fact it is likely that our SAS took the lead in a number of raids with the Afghan Crisis Response Unit, as they did in the raid last Christmas on the Kabul offices of Tiger International Armor. When interviewed by Jon Stephenson the Tiger International Armor people said it was the SAS that entered their building and detained them at gunpoint, and the Minister today has confirmed that. Later those prisoners—and they were prisoners—were handed over to the National Directorate of Security, which in this occasion let them go because it found they had nothing to do with the Taliban. Instead, they were just innocent contractors for the United States.

The Minister mentioned yesterday a case in which one prisoner was taken on 31 January this year, which could not be avoided because it was not a joint operation with the Crisis Response Unit, and he claimed that the proper post-arrest monitoring had been done by the Defence Force. That may be so, but there is no guarantee or evidence of proper monitoring on other occasions from 2002 to the present, including the 24 joint operations of the SAS and the Crisis Response Unit, when prisoners were taken and our SAS was only “in the vicinity”.

Torture continues in Afghan prisons. Jon Stephenson’s on-the-spot interviews have brought out the extent of torture that took place following the SAS handing over prisoners in 2002 to the US authorities. He has shown that prisoners were taken and handed over by our SAS at Tiger International Armor. He has challenged the credibility of many of the New Zealand Defence Force denials made over the years that prisoners were taken or its claims that they were properly followed-up, if they were taken. What we clearly need is an independent inquiry, where Jon Stephenson and the New Zealand Defence Force can put all the evidence on the table, so that we as a nation can go forward, absolutely sure that our troops will not be handing over Afghan prisoners to torture. If we are simply unable to guarantee that the prisoners whom our forces take and hand over are not mistreated, that is another reason why our SAS should not be in Afghanistan.