Defence Minister Wayne Mapp flunked his final Afghan Torture Test last Friday when he slid the long awaited New Zealand Defence Force Report on detainee treatment into the public domain under the cover of the Grand Final of the Rugby World Cup.

If you want to try and bury bad news around Parliament, release it on the Friday before a holiday weekend. The hapless, retiring Defence Minister Wayne Mapp tried to go one better when he dropped his bundle as the most intense bout of rugby fever seen in our nation’s history was reaching its peak. Nice try, Wayne. You almost got away with it. But you simply can’t escape attention when you come out with a hyperbolic horror like this:

“New Zealand, along with other nations contributing to the International Security Assistance Force in Afghanistan, ensures that the wellbeing of the persons they have captured is monitored.”

Unfortunately, most of the monitoring is carried out by Afghanistan’s National Directorate of Security – the jailer of choice for the Crisis Response Unit (CRU) that our NZ SAS mentors and supports – and well-being is not running rife among NDS detainees. There isn’t enough whitewash in the can to obscure the bad news delivered by the United Nation’s Assistance Mission to Afghanistan earlier this month.

 “UNAMA’s detention observation found compelling evidence that 125 detainees - 46percent - of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.”

Wayne’s next problem arises from the NZDF. His Chief of Defence, Lieutenant General Rhys Jones, simply does not have enough troops to carry out the monitoring role.

“Given the size and nature of the force deployed, it is not within the NZDF’s capability to unilaterally assume a comprehensive monitoring role.”

The Chief of Defence has banned the transfer of NZDF detainees to the black hole facilities listed in the UNAMA report, and, since early September, he has required the SAS in Kabul to know where the people who are arrested during CRU operations are taken after their arrest.

Anyone who reads the reports from UNAMA and the NZDF will quickly realize that these new measures are simply feel-good fluff that offers little or no protection to the detainees. First, they do nothing for the 193 or so detainees who were arrested in the presence of the NZ SAS before September. Second, the NZDF, by its own admission, does not have the legal ability or mandate to maintain oversight of the detainees once they leave the custody of the CRU.

The Chief of Defence admits that “a small number of the persons detained by the CRU” are transferred to the NDS in Kabul. UNAMA concedes its impotence in dealing with the NDS.

“Although the [Afghan] Constitution prescribes that investigation of criminal conduct by police, armed forces, and national intelligence officials shall be regulated by a “special law,” the legal basis for the internal accountability framework of NDS is unknown and not public. While the bulk of the mandate of NDS is covered under the National SecurityLaw, oversight and accountability measures are not set out in the law.”

 Senior NDS officials told UNAMA they have investigated only two claims of torture in recent years, neither of which led to charges being pursued against the accused NDS official. Despite repeated requests, NDS did not provide UNAMA with any information on any other disciplinary or criminal action against NDS officials for torture and abuse.

 In short, New Zealand is engaged in a partnership with an Afghan unit that feeds some detainees to an instutition that is unable or unwilling to address the high incidence of torture and abuse in its detention facilities. But does that make our troops complicit in a gross breach of our own commitments to international human rights and humanitarian law? Not so, according to the NZDF.

 “Complicity in torture requires knowledge that torture is taking place and a contribution by way of assistance which has a substantial effect on the perpetration of the crime. The person must know the aims of the criminal activity and intend to contribute to its commission.”

 Well, that is the legal advice currently guiding the NZDF in its decision-making. But is it that simple? Can the defence of ignorance stand in the face of all the evidence that is accumulating on the continuing incidence of torture and abuse within the detention facilities of Afghanistan. Wayne is a lawyer – but, strangely, he says nothing on this important topic. I hope Pundit’s legion of lawyers will fill the vacuum that he has created.

 

 Meantime, General Jones has dropped his own bomb on Minister Mapp. This month, the General sent me “an expanded summary” of two NZ SAS operations in 2002, where between 50 and 70 Afghan detainees were taken and handed over to the custody of US authorities. Here is what Mapp told Parliament during Question Time on 3 May this year:

“It is certainly acknowledged that there was mistreatment in 2002. That was complained of at the time by our senior officers present at the time. Subsequently over the years under the previous Government, which included the current Leader of the Opposition, procedures were improved on the part of the New Zealand Government in that regard. But essentially that is the responsibility of the United States Government, which realises of course that the events that occurred back then would not meet appropriate standards.”

Not so, according to the new summary provided by General Jones.

“NZSOF noted that the techniques employed by the coalition authorities to restrain and move the detainees differed from those they used. The matter was raised with the commander of US forces in the area, who assured the NZ officer that the practices were consistent with US procedures. The NZ officer observed that the detainees were not struck at any time and was satisfied that, although robust, practices were not inhumane. Detainee handling methods were not further reported or protested.”

Now one of these gentlemen has to be wrong. The retiring Mr Mapp may be very lucky that he will not be back in Parliament next year.