The Prime Minister’s announcement that the SAS will return to combat duties in Afghanistan leaves too many of the outstanding questions from the last tour of duty unanswered

Will the SAS conduct more “snatch and grab” raids among civilians? What will happen to their prisoners? And who are they authorised to “ capture or kill”?

These are three fundamental questions that should have been answered in Prime Minister Key’s announcement that New Zealand SAS troops are returning to the battle fronts in Afghanistan .

After their first tour of duty started in December 2001, the SAS was involved in actions where “individuals were temporarily detained in order to capture Taliban and for [sic] Al Qaeda suspects believed to be among them.”

There was no hard evidence that the 50 to 70 detainees captured by the SAS were Taliban or Al Qaeda. They were simply living in areas where enemy combatants were known to be active. The SAS had no resource to identify their detainees properly and handed them over to American allies for interrogation and custody as quickly as possible.

As a result, the NZ Defence Force had no means of tracking the fate of those detainees – and no means of ensuring that they were treated humanely according to the requirements of international humanitarian and human rights laws.

Has this deficiency been addressed? And will the SAS continue to mount these highly dubious “snatch and grab” raids on its return to Afghanistan ?

We cannot be sure. The government is refusing to comment on what it calls “the operational aspects of the SAS deployment”. Its announcement this week even fails to mention whether the SAS will rejoin the battle as part of the US-led Operation Enduring Freedom or the UN mandated International Security Assistance Force.

Under ISAF rules, the SAS would, at least, be required to identify their captives and alert the Red Cross before transferring them to the custody of Afghan authorities. Even if our troops do observe ISAF rules, it is far from clear that New Zealand would fulfil its obligations under international law.

Since the beginning of 2001, the New Zealand government has been trying – unsuccessfully – to obtain a formal agreement from the government of Afghanistan to ensure that detainees captured by our troops will not be abused, tortured, or executed after transfer to its custody.

On the same day that Prime Minister Key announced the SAS would be returning to action in Afghanistan , Foreign Affairs Minister Murray McCully signed out the following response to my Official Information Act request for a progress report on the negotiations.

“The New Zealand government is negotiating with Afghanistan to update the Military Technical Arrangement to include provisions requiring that any detainees transferred by New Zealand personnel to Afghan authorities are treated in accordance with applicable humanitarian and human rights laws. These negotiations are still continuing and as recently as July 2009 our Embassies in Tehran and Washington were in discussions with the Afghan Government on this issue."

Apparently, we are repeating the same mistake that was made in 2001. New Zealand troops are being committed to combat in Afghanistan without any formal agreement or means of ensuring that their captives will be treated humanely after they have been transferred to the custody of our allies.

But worse news is coming. Even if New Zealand had such an agreement, it is still questionable that we would be meeting our responsibilities under international law.

At the beginning of this year, UN Human Rights Commissioner Nevanethem Pillay issued the following blunt warning to countries committing troops to combat in Afghanistan .

“They may hold detainees for only 96 hours; the International Committee of the Red Cross must be informed; after 96 hours, detainees are to be either released or transferred to the Afghan authorities, generally, the National Department of Security.

NDS continues to operate without a public legal framework clearly defining its powers of investigation, arrest and detention, and rules applicable to its detention facilities.

UNAMA [United Nations Assistance Mission to Afghanistan ] has received complaints from individuals previously detained by NDS that they were tortured. The treatment of detainees by NDS, including those transferred from international military forces’ control, raises questions concerning responsibility of the relevant troop contributing countries under principles of international humanitarian and human rights law.”

United Nations officials also have particular concerns about the operations of special forces such as the SAS in Afghanistan . In June, the UN secretary general’s special representative in Kabul , Kai Eide, called for an urgent review of how special forces could "afghanise” their operations and to reduce the soaring rate of civilian casualties.

Now, the New York Times is reporting that the Senate Foreign Relations Committee is about to release details of a new US special forces’ mission in Afghanistan .

According to the NYT, two American generals have advised the committee that 50 Afghans, believed to be drug traffickers with ties to the Taliban, have been placed on a Pentagon target list to be captured or killed. Names will be added to the list on the basis of information from two credible sources and substantial additional evidence.

Is this the kind of mission that the New Zealand SAS might be called upon to perform?

I would like to think not – but I would prefer to be told, to have a clear descriptive of the enemy that our troops have been sent to capture or kill, and to know that they are properly trained and equipped to perform their duties in compliance with the laws of armed conflict.

John Key is correct when he says “we have some of the best people in the world and we're now asking them to complete a very difficult task." We deserve to know exactly what the task is – and the location of our nearest exit.