Phil Goff has left some messy unfinished business for his successors to the Foreign Affairs and Defence portfolios after nearly three years of fruitless negotiations with the Karzai government

New Zealanders have been conditioned to think that we enjoy a respected position as peace-builders in Afghanistan . Unfortunately, this view is not confirmed by the facts of our negotiations with the government in Kabul .

Since the beginning of 2006, Labour’s foreign affairs and defence specialist Phil Goff has been embroiled in protracted and fruitless negotiations with the Karzai Government in Kabul to strike a new deal over the treatment of detainees captured by NZ Defence Force personnel.

In 2006, New Zealand troops serving in Afghanistan were transferring out of their partnership with the United States in Operation Enduring Freedom and into the NATO-led International Security Assistance Force (ISAF).

There was just one problem: as ISAF members, the New Zealand troops were bound to follow the ISAF policy that the government of Afghanistan “has overall responsibility for the maintenance of law and order” and detainees would be transferred to Afghan custody.

ISAF procedures state that: “When transferring a detainee to the control of the Host Nation, ISAF cannot seek to constrain the freedom of action of the Afghan authorities. However, bilateral agreements may be concluded between the TCNs and the Host Nation, according to national requirements.”

Phil Goff’s problem was that his government had negotiated a Bilateral Military Technical Arrangement with the Afghan Transitional Authority led by Hamid Karzai before serious concerns about detainees surfaced.

The New Zealand Arrangement contained no provisions to ensure that detainees transferred to Afghan custody were treated in accordance with international human rights or humanitarian law, could be tracked by the International Committee for the Red Cross (ICRC) or the Afghanistan Independent Human Rights Commission, or that New Zealand’s opposition to the death penalty would be respected.

Such safeguard provisions were a feature of bilateral agreements negotiated by the governments of other nations participating in ISAF, including Britain , Canada , Denmark , Norway and the Netherlands .

By 2006, the omission in the New Zealand bilateral agreement with Afghanistan was a sensitive issue for the Labour-led coalition.

New Zealand was planning to enact a Crimes of Torture Amendment Bill, ratify an optional protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and - in its own words - cement its position as “a global leader in human rights protection”.

The grand ambition for global leadership would be threatened by any looseness in New Zealand ’s arrangements with Afghanistan for the care of detainees taken by our troops – and the Karzai Government was not known for respecting the human rights of detainees.

In 2004, the Afghanistan Independent Human Rights Council had warned that “torture continues to take place as a routine part of police procedures. The AIHRC has found torture to occur particularly at the investigation stage in order to extort confessions from detainees. Forced confessions are clearly in violation of the Universal Declaration of Human Rights.”

The same year,the United Nations Special Rapporteur on Torture, and Cruel, Inhuman and Degrading Treatment condemned interrogation practices used on Afghani and Iraqi detainees. The practices included “depriving them of sleep or light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked, and threatening them with dogs.”

US Department of Defence documents confirm that these practices were applied at the Bagram Base in Afghanistan by interrogators under the leadership of Captain Carolyn Wood, who was transferred to Iraq in August 2003 to control interrogation operations at the now more infamous Abu Ghraib prison.

The Bagram Base has been used by senior NZDF liaison staff since December 2001 and by the NZDF logistics team supporting the Kiwibase provincial reconstruction operation since August 2003.

Because of the secrecy surrounding operations by the New Zealand SAS troops, it is not possible to confirm if Bagram was the centre used to process the 50 to 70 detainees that they captured in 2002 and turned over to US custody – but Bagram was the main US detainee processing centre in Afghanistan at the time.

However, in January 2006 New Zealand had an opportunity to open negotiations on new arrangements for NZDF detainees with the Afghan Government.

Defence Minister Goff met Afghanistan ’s Foreign Minister Dr Abdullah Abdullah at a Donor Nations Conference in London . After the meeting, a New Zealand Ministry of Foreign Affairs and Trade memo states that “the Minister of Defence obtained an assurance from the Afghan Foreign Minister that the death penalty would not be applied to any detainee transferred to them by NZ personnel. Abdullah was agreeable to recording this in a memorandum of understanding.”

The issue was pursued in a series of diplomatic contacts with Afghanistan during 2006 and 2007 without success.

On 7 October 2007, the Karzai government executed 15 prisoners who had been sentenced to death. Kabul security chief Alishah Paktiawal was quoted saying he was confident the roadside executions would send a clear message to would-be criminals.

All insurgents, terrorists, and anti-government forces in Afghanistan are, of course, criminals now. The unresolved issue is whether those executed were given the legal rights expected in terms of international humanitarian and human rights law.

Four months after the executions, Minister Goff confirmed in a letter to me that New Zealand was still in the process of formalising amendments to the Bilateral Military Technical Arrangement with Afghanistan .

Since then, there have been no reports of progress, and I did ask for a copy of the amended agreement if and when it was finalised.

Goff’s successors in foreign affairs and defence would be well advised to exercise extreme caution in our continuing relationship with Afghanistan .