International Law: Has Gov-General Designate Jerry Mateparae Misled The Nation?
Analysis – By Selwyn Manning.
A major Metro Magazine investigation by award winning investigative journalist Jon Stephenson argues that the incoming Governor-General, Jerry Mateparae, has been implicated in a controversy involving New Zealand’s SAS troops and their role in handing innocent prisoners to American and Afghan forces, knowing they might be tortured.
If this had occurred it is, as Metro claims, a breach of several international covenants, including the Geneva Conventions, which New Zealand has signed. It is also a breach of the NZ Defence Force’s own rules.
Image: NZ SAS soldiers. By Jon Stephenson.
In 2010, in a report to Parliament's Foreign Affairs, Defence and Trade Committee, Lt. General Jerry Mateparae said defence personnel (including the NZ SAS) require his permission before “handing over any detainee to the Afghan authorities. His decision is based on an assessment of the circumstances of the detention, New Zealand’s ability to monitor the human rights of the detainee, and the legitimacy of the detaining institution”.
As Metro Magazine states: The Geneva Conventions, to which New Zealand, the United States and Afghanistan are all signatories, form part of the Law of Armed Conflict. Common Article III prohibits the torture and degrading treatment of prisoners. The conventions also say that any country transferring prisoners to the authority of another country must be “satisfied” the receiving country is “willing and able” to abide by the conventions.
Major concerns arise from Metro's investigation including findings like this: that since 2001 “the New Zealand Special Air Service (SAS) has been required, in effect, to ignore these rules. This has led to the torture of innocent civilians, helped build support for the Taliban in Afghanistan, and exposed New Zealand troops to the risk of criminal prosecution”.
Metro accurately adds that every government, including the Labour-led governments under Helen Clark, have denied that New Zealand's soldiers have been involved with dispatching prisoners (Afghani or otherwise) on to interrogators that may use torture.
In the investigative report, SAS soldiers confirm their unease over handing over detainees to US interrogators and the feared Afghani security units. The Kiwi soldiers discovered the prisoners were being tortured.
Detainees spoken to by Jon Stephenson spoke of how a village leader was murdered by being struck in the face with a rifle-butt. A 12 year old boy was held along with a 70 year old elder, both witnessed and suffered physical and psychological torture. Metro quotes a detainee recounting the ordeal: “He was tortured a lot, and he couldn’t move his hands or legs...” Jon Stephenson writes: "Ishaqzai told me that after Mohammad Sadiq was released, he was taken to Pakistan for medical treatment and is now in a wheelchair. Abdul Wahid says he, too, was beaten, but he found the psychological trauma worse. 'We didn’t know what was going on,'” he says. 'We didn’t know where we were. We didn’t know when the sun was rising and when it was setting. For seven days we didn’t know what was happening in our village.'”
The Metro investigation tells of how SAS soldiers were concerned, and the SAS commander at the time, Lieutenant-Colonel (now Colonel) Jim Blackwell then spoke to a US military police commander outside a detention centre, apparently “raising concerns about the way a few prisoners were handled”.
Blackwell also spoke to fellow commanders of other forces including those of Canada, Danish, German and Norwegian special forces. But SAS soldiers were dissatisfied with their commander's assurances.
The Metro investigation suggests, NZ Defence officials knew it was an offense for New Zealand personnel to hand over prisoners to the US and Afghani units, so it sought a protective cloak, a legal loophole of sorts. For the loophole to work, NZ SAS soldier units could continue to seize, detain, and transport suspects, with a member of US or Afghan forces tagging along. That individual would become a signatory signing the necessary documents when handing prisoners over to interrogators. That way Kiwi soldiers were not officially recorded as being legally responsible for the prisoners nor legally culpable under international law.
Such a practice, if correct, would demonstrate a jaundiced attitude by those representing New Zealand, its Government and its Defence Force toward international law and the covenants that ensure prisoners not be subjected to torture, degradation, and in some cases murder.
What was Parliament told?
Here Scoop quotes in full the minutes of a report to Parliament's Foreign Affairs, Defence and Trade Committee.
In the report titled: 2009/10 Finance Review of the Ministry of Defence and of the Defence Force, the Parliament select committee notes:
- “We asked the
New Zealand Defence Force whether its personnel stationed in
Afghanistan have handed over any detainees to the Afghan
authorities; we note that in the past the Special Air
Service has been present when Afghan authorities have
detained citizens. We were told that the SAS has no
authority to exercise control over detainees, even when its
personnel are present at the arrest, as the detainees are
subject to Afghan law. The SAS’s role is to provide
support and training for the Afghan authorities. The
Provincial Reconstruction Team, however, conducts
independent activities and it is possible that they could
detain an Afghan citizen. We were told that New Zealand
Defence Force personnel operate under rules of engagement
wherever they are deployed, and receive training on their
obligations under international law.
“We asked the New Zealand Defence Force about its protocols or contingency plans for handing over a detainee to the Afghan authorities, knowing that New Zealand is a signatory to the United Nations Human Rights Committee Optional Protocol to the Convention against Torture, whereas Afghanistan is not. The Chief of Defence Force told us that defence personnel require his permission before handing over any detainee to the Afghan authorities. His decision is based on an assessment of the circumstances of the detention, New Zealand’s ability to monitor the human rights of the detainee, and the legitimacy of the detaining institution. We are aware that the Governments of Afghanistan and New Zealand have an agreement that both parties will comply with their obligations under international law in respect of the treatment of any detainee handed over to Afghan authorities by New Zealand Defence Force personnel.”
The Metro Magazine investigation - a work that contains interviews with Kiwi SAS personnel and individuals who were detained and tortured – raises questions about whether the former head of NZ Defence and Governor General designate, Lt. General Jerry Mateparae, had misinformed Parliament and both prime ministers Helen Clark and John Key, and a series of ministers of defence.
Or, were the politicians also aware of the difficult and potentially illegal activities? Were they complicit in a serial tale of deceit, of legal loopholes that abandon humanitarian ideals, place possibly innocent people into the hands of torturers, while keeping the New Zealand public in the dark?
If so, this could be New Zealand's darkest hour of modern times?
At the very least, a full and transparent ministerial inquiry ought to be established with terms of reference that do not aide the creation of a whitewash of events, but tests the claims made in the Metro article, and seeks the absolute truth irrespective of who or whom could become the casualty/ies of this most disturbing conflict.
Scoop Editor's Recommendation: Obtain a copy of Metro Magazine and read the investigation into this most concerning issue.
Questions remain: Has the PM and Defence Minister been misled over this issue? Is there a satisfactory explanation for the information irregularities? Or is this situation a matter of incompetence or corruption?