Defence Minister Wayne Mapp faces his final torture test this week, when UNAMA releases a critical report on mistreatment of prisoners in Afghan detention centres.

Top of Wayne Mapp’s things-to-do list before he turns in his Ministerial ticket and leaves Parliament should be the release of the findings of inquiries he instigated in August last year into the possibility that prisoners arrested by an Afghanistan military unit being “mentored” or “supported” by New Zealand troops were handed over for detention in jails where they were known to be at risk of torture.

Since the New Zealand SAS was redeployed to Afghanistan in 2009, its troops have been based in Kabul supporting an Afghan Crisis Response Unit that routinely delivers its captives to the National Directorate of Security for interrogation and detention. The New Zealand Defence Force PRT also supports Afghan police, security, and army personnel in making arrests in and around Bamyan,

Mapp’s concerns about the process were prompted by a United Kingdom High Court decision in June last year. The court found that:

“On the available evidence, there is, in our judgment, a real risk that UK transferees will be subjected to torture or other serious mistreatment at NDS Kabul.”

The UK Court determined it would be unlawful for the transfers to continue. Mapp confirmed that the Afghan unit being mentored by the NZ SAS had transferred prisoners to NDS Kabul, and told Radio New Zealand’s Morning Report it was not possible to rule out that, in the past, New Zealand soldiers may have been involved in securing prisoners who went into facilities where they were tortured.

According to figures released in June by Mapp, the Afghan Crisis Response Unit has arrested people on 35 occasions when the SAS troops had been in support. He was at pains to point out that the Afghans made the arrests, not the New Zealand troops – a recurrent theme in the rhetoric of the war.

New Zealand and Australian governments have been dodging behind the legal fiction of not being “detaining authorities” for the last 10 years. They are both involved in combat and security actions that result in captives being taken – but pretend they have no responsibility for what happens to them in American or Afghan detention. When armed New Zealand troops support arrests, it is a very moot point to suggest that their mentoring and support status absolves New Zealand of responsibility for the captives’ treatment under international humanitarian and human rights laws from then on.

It is an equally moot point for the government to wash its hands of further responsibility because it has agreements from the governments of Afghanistan and the United States that detainees transferred to their custody will enjoy the protections afforded under international humanitarian and human rights law. In the UK case, the mere existence of an agreement was not regarded as sufficient assurance.

Our government refuses to release copies or summaries of its agreements on the grounds that it would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand.

How an agreement to abide by international law becomes so sensitive that it could damage the interests of any decent government is quite beyond me. It is also beyond the understanding of High Court judges in the United Kingdom, who ruled last April that this was not sufficient grounds for withholding a memorandum of understanding between the UK and US governments on the treatment of detainees. Their decision is instructive and should be considered carefully by our government.

“We very much doubt that the terms of a memorandum of understanding or similar agreement that is designed to ensure compliance with human rights and similar legal obligations in respect of people whose detention is transferred to another state could be perceived as confidential in nature or something the existence of which embarrasses foreign states. Protection of human rights is a fundamental duty of all state parties to the United Nations.”

The history of detainee torture and abuse in the early years of the war is now largely undisputed, even by the “detaining authorities”. However, a new fiction has been created that the situation has improved since then. In May, Newstalk ZB reported Prime Minister John Key saying there had been problems with the NDS in the past, but “that’s all been cleared up now and they are now the place of choice to take detainees.” That might have been true once – but not now.

In January, the United Nations Commissioner for Human Rights tabled a worrying report with the UN General Assembly.

"Limited information is available from the Afghan authorities on the conditions and treatment of detainees transferred by ISAF to the Afghan authorities, in particular to NDS. Reliance on this institution, in particular is of concern, as NDS continues to operate without an explicit, public legal framework stipulating its powers of investigation, arrest, and detention. The operational rules and procedures of NDS regulating detention facilities under its control are classified and are not available to the public, defence counsel or detainees."

In April, the US State Department published its 2010 Country Report on Human Rights Practices in Afghanistan. It records a continuing pattern of prisoner abuse in Afghanistan.

"The [Afghan] constitution prohibits such practices; however, there were reports of serious abuses by government officials, security forces, detention center authorities, and police. Nongovernmental organizations reported that security forces continued to use excessive force, including torturing and beating civilians. Human rights organizations reported that local Ministry of Interior (MOI) and NDS detention center authorities tortured and abused detainees. Torture and abuse methods included, but were not limited to, beating by stick, scorching bar, or iron bar; flogging by cable; battering by rod; electric shock; deprivation of sleep, water, and food; abusive language; sexual humiliation; and rape."

Last month, the British Broadcasting Corporation claimed to have an advance copy of a major report by the United Nations Assistance Mission to Afghanistan describing how prisoners had been abused in a wide range of detention centres throughout the country. The UNAMA report is believed to cite detention facilities run by the NDS in Herat, Khost, Lagman, Kapisa, and Takha, its counter-terrorism prison in Kabul, known as Department 124, as well as two prisons run by local Afghan police in Kunduz and Tarin Kowt. Brigadier General Carsten Jacobsen, a spokesman for the International Security Assistance Force in Kabul, confirmed that ISAF has suspended the transfer of captives to a number of Afghan detention centres.

"We have stopped the transfer of detainees to certain installations, as a precautionary measure. We are awaiting and we are aware that a UN report will come out and we will look into that report. We have not stopped the overall transfer of detainees, but to certain installations only."

UNAMA in Kabul has advised me its report is due to be released this week. On 12 August, I asked Minister Mapp for a copy of his report on detainee treatment, and on 8 September I asked him for copies of communications with NZDF over ISAF’s suspension decision. He has yet to respond. I hope he reads this and reflects on a comment he made in his recent valedictory speech to Parliament:

“We do not honour our fallen by running when the going gets tough. We do not honour our country by shirking from our responsibilities. And we do not honour each other when we resile from our principles.”