An investigation into the detention of over 50 Afghanis by New Zealand troops in 2002 has revealed that New Zealand may have failed to meet its obligations under the Geneva Conventions

In August, Defence Minister Phil Goff told Radio New Zealand News that the Government was considering a paper that proposed an increase in New Zealand’s military commitment to Afghanistan. [Radio New Zealand News, 14 August 2008].

With the recent deterioration of security in Afghanistan and US Defense Secretary Robert Gates yesterday saying he needs 10-12,000 more troops to confront a resurgent Taliban, the military boost may come soon, and perhaps during Campaign 08.

It provides a rare opportunity to talk about New Zealand's involvement in a war that has continued for seven years with little public debate, and an opportunity too for the Defence Minister to explain why he gave misleading advice to a Parliamentary Select Committee last year on the fate of between 50 and 70 Taliban and Al Qaeda “suspects” captured by the NZSAS in 2002 and why we failed to meet our obligations under the Geneva Conventions.

Goff’s problem starts with a letter he wrote to Parliament’s Select Committee on Foreign Affairs, Defence and Trade in February 2007. He wrote: “NZSAS troops have … been involved in actions where individuals were temporarily detained in order to capture Taliban and for Al Qaeda suspects believed to be among them … The number detained was in the range of fifty to seventy in total. The NZDF understands that no person who has ever been held, even temporarily, in New Zealand custody is currently in the hands of the United States or other nations represented in the international forces.”

The same day the Select Committee received Goff’s letter, newswires carried a story from “Danish military sources” claiming that the NZSAS unit deployed in Afghanistan had complained about the handling of its captives during their transfer to US forces for “processing” and detention.

Confronted with this news, Goff disavowed any knowledge of the SAS protest. However, he provided some other notable quotes about the detainees that are now coming back to haunt him.

On February 28, 2007, he was reported in the New Zealand Herald as saying, “We followed up to see what had happened to those people and to the best of our knowledge, none of those people are still in custody in the hands of US authorities." He claimed former NZ Defence Chief Bruce Ferguson had put arrangements in place with the International Committee of the Red Cross (ICRC) to follow up on the treatment of any prisoners New Zealand forces helped to capture.

“We were uncomfortable with the fact that we didn’t have a procedure whereby people could be immediately followed up and that’s why … that arrangement was made with the ICRC.”

So, detainees captured – no longer in custody – Red Cross in the loop - end of story. Goff went back to his office and sought a further briefing on the NZSAS protest from his NZ Defence Force advisors.

Unfortunately for Goff, this is where the contradictions begin.

After seven months of probing under the Official Information Act, Goff has been forced to confirm that the NZSAS did complain about the “robust” handling of their detainees by US forces.

In a letter to me on September 3, 2007, he admitted that, “Following the transfer, the New Zealand officer in command of the NZSAS element informally raised the issue of the handling of detainees with the local US command, because the handling was more robust than the New Zealand approach. He was assured that the practice observed was consistent with US procedures prior to internment in a detention facility and was satisfied that the treatment was not inhumane.

Goff had also learnt by that time that—contrary to his earlier statement—no arrangements had been made with the Red Cross to follow up on the subsequent treatment of the NZSAS' detainees in US custody. Asked what steps he had taken to obtain information from the Red Cross, the Afghan authorities, and other coalition forces about the detainees' welfare, he replied with a single word.

“None.”

A check with the Red Cross office in Kabul confirmed that the NZ Defence Force had made no follow-up arrangements with ICRC.

“As far as I know, the NZ Defence Force did not have any arrangement in place in Afghanistan with ICRC prior to its incorporation in the NATO ISAF in November 2006," Kathleen Lawand, the ICRC's legal adviser in Kabul, told me in an email on March 24 this year.

The Chief of Defence has confirmed the advice provided by the ICRC. “As far as I can ascertain," current Defence Force chief Lieutenant General Jerry Mateparae wrote on April 16, "no member of NZDF has ever made any request to the International Committee of the Red Cross for information relating to the whereabouts or condition of prisoners or detainees.”

The information grudgingly released so far indicates that no-one really knows what happened to the NZSAS' detainees—and that the NZ Defence Force version of that story differs significantly from the account Goff provided to the Select Committee in February 2007

“US authorities were not able to provide any information relating to persons in their custody, as they had no information to suggest any of those persons had been captured by New Zealand Forces," Lieutenant General Mateparae wrote in that same letter.

It took another five months of probing to find out why. The NZSAS was simply not equipped to identify or “process” its 50-70 detainees.

In a second letter last month, Lieutenant General Mateparae wrote, “Processing detainees implies interrogation or questioning of individuals and the recording of their identities, detailed searching, removal and safe custody of their possessions… Because of the nature and size of the NZSAS groups involved in the operations in which detainees were likely to be taken, there were no SOPs or instructions in place for this activity since it was beyond the capability of the group to conduct such processing.

“From the inception of the deployment it was expected that persons captured would be handed across to other coalition forces who had the necessary specialist personnel to conduct these processes.”

The problem for Goff, and the New Zealand forces, is that without information on the identity of the NZSAS' detainees, the New Zealand government was not able to meet its obligations under the Geneva Conventions to ensure that prisoners or detainees captured by the NZ Defence force were treated humanely and in accordance with international law. These obligations continue even if the detainees have been transferred to the custody of others.

Get ready for the questions, Mr Goff, and there are more to come.