Amnesty International Public Statement

02 April 2012

Failure To Provide Independent Investigation Leaves New Zealand In The Dark Over Its Human Rights Record

Amnesty International reiterates its long-standing call for an independent investigation into New Zealand’s compliance with international humanitarian and human rights obligations following the completion of the Special Air Service’s (SAS) mission to Afghanistan.

“Amnesty International has repeatedly raised concerns of New Zealand’s potential complicity in torture through its role in Afghanistan, and an independent investigation would address this” said Amanda Brydon, Amnesty International’s Advocacy and Government Relations Manager.

The publication of two memorandums in October last year, by then Defence Minister Dr Hon Wayne Mapp, failed to answer key questions regarding this role including:

• Whether the decision to provide "technical" support or "engagement" in relation to arrests made on joint operations between the SAS and the Crisis Response Unit (CRU) of the Afghan National Police complied with New Zealand’s international obligations to ensure that detained individuals are not transferred to situations where they are at substantial risk of torture; and

• The failure of New Zealand to track or monitor the subsequent situation of the individuals detained during the 58 joint operations since September 2009.

“Only an independent and transparent investigation has any chance of giving the public clear answers of whether the Defence Force in Afghanistan met New Zealand’s human rights obligations.
Such information will be vital in ensuring human rights are to the fore of any future engagements,” said Amanda Brydon.

Background Information

The two brief memorandums Dr Hon Wayne Mapp received from the Chief of New Zealand's Defence Force confirmed that one person detained by the SAS during its operations since September 2009 was in a joint US-Afghan facility and being monitored by the Defence Force.

They crucially failed however, to provide factual or legal clarity in relation to the 58 occasions where individuals were detained during joint operations by the SAS and the Crisis Response Unit (CRU) of the Afghan National Police.

The memorandums claimed that in the joint operations between the SAS and the CRU the "actual arrest of a person subject to Afghan jurisdiction is conducted by a member of the CRU" while SAS members "may provide certain technical capabilities and assistance". It was also noted that the SAS "may need to become engaged or act in self-defence when a person poses an immediate threat to which the CRU cannot respond”.

The memorandums relied on this technical distinction to claim that, as a visiting force, the Defence Force can assert no rights to protect people "arrested by the authorities of the host state" in this manner (and, by implication, that New Zealand can bear no responsibility for what subsequently happens to them).

Nevertheless, if a state transfers someone to the effective control of another state where there are substantial grounds to believe he or she would face a real risk of torture or ill-treatment, they would be violating their legal obligations under the Geneva Conventions and Protocols, the UN Convention Against Torture, the International Covenant on Civil and Political Rights or customary international law.

ENDS

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