New Zealand stands accused of "war crimes" for handing over prisoners who were mistreated by the American military during George W Bush's so-called war against terror in Afghanistan.
International legal experts say New Zealand broke the Geneva Convention and laws against torture when, from 2002, our elite SAS troops transferred 50-70 prisoners to the Americans at the Kandahar detention centre in southern Afghanistan.
The centre was known by US soldiers as "Camp Slappy", and prisoners there have described being severely beaten and tortured, drenched with water and left to freeze outside in winter.
The Geneva Convention and the UN Convention against Torture prohibit signatories such as New Zealand from torturing, humiliating or degrading prisoners, and from transferring them to countries that do so. Investigations are under way in the US and other countries into Geneva Convention abuses in Afghanistan at the time New Zealanders were transferring prisoners there.
There is no evidence that the SAS was directly involved in torture, but New Zealand stands accused of creating "ghost detainees" by handing prisoners to the Americans without recording their names. SAS sources said that while height, eye colour and place of detention were recorded, the prisoner's name and date of birth were not.
Top US international human rights lawyer Michael Ratner said that by failing to accurately document the names of transferred prisoners, New Zealanders were effectively enablers of abuse.
"It's a war crime to keep a ghost detainee; it's a war crime to let them be abused," he said. "I've come to expect bad of the United States post-9/11, but I would have hoped New Zealand, which is a signatory to the [Geneva] Convention, would have obeyed the Convention."
The revelations come as Prime Minister John Key considers sending the SAS back to Afghanistan. A decision is due this month, and yesterday Key would not discuss the war crime allegations. Labour leader Phil Goff, whose party was in government at the time, did not return calls.
An SAS member in Afghanistan in 2002, when asked if there was concern about how prisoners would be treated at the Kandahar detention centre, said: "We sort of knew what would happen to the prisoners, Americans being Americans."
A senior SAS source told the Sunday Star-Times he was "pretty sure" some of the prisoners ended up being sent to America's notorious Guantanamo Bay prison in Cuba.
Torture and mistreatment of prisoners at Guantanamo has been criticised by the Red Cross and a wide variety of human rights groups, with Amnesty International calling it "the gulag of our times". Yet prisoners transferred to Guantanamo in 2002 from Afghanistan have said the physical abuse they experienced at the Kandahar detention centre was even more brutal.
SAS sources say none of the Kiwis visited the Kandahar detention centre. "We weren't allowed inside," said one. Another SAS member said the detention centre was at least half a kilometre away from the SAS quarters, and the soldiers could not hear anything or see much.
One SAS member who served at Kandahar in 2002 told the Star-Times the New Zealanders treated all their prisoners well.
Another SAS member said that when New Zealanders took prisoners in the field they treated them in a "firm but fair" manner. On one occasion they gave them chocolate, he said, while waiting for helicopters to transfer the prisoners to Kandahar.
"The real fun would have happened at the other end [at the detention centre], I dare say."
Ratner, who teaches at Yale and Columbia law schools and is president of the New York-based Center for Constitutional Rights, says the New Zealand government should have heard alarm bells as early as February 2002, when Bush and US defence secretary Donald Rumsfeld said that alQaeda and Taliban prisoners were not entitled to prisoner-of-war status or the legal protections of the Geneva Convention.
"It was obvious to everybody what was going on," says Ratner. "The New Zealand authorities knew that turning prisoners over to the Americans was very likely or very possibly going to cause inhumane treatment.
"How could New Zealand, no matter what the United States said, give up their obligations under the Convention?"
The Star-Times understands the issue of the American treatment of prisoners came up in April 2002 at a meeting called by the SAS commander, Lieutenant-Colonel Jim Blackwell, of commanders from the Danish, Norwegian, German and Canadian special forces.
A member of the Danish special forces stationed at Kandahar told the Star-Times that the meeting was held at New Zealand quarters and
said that Blackwell and several other SAS men were present.
"We knew the prisoners were not being treated the way they should be treated. We also knew that there were innocent people among them." These two facts also caused concern to the New Zealanders, who were worried their prisoners were being mistreated by the Americans.
A Danish media investigation found that a special forces interpreter, working with US interrogators at Kandahar in early 2002, witnessed severe abuse and torture.
A fellow soldier told the Star-Times the man was deeply shaken by what he saw, but his complaints to superiors were ignored.
In March 2002 prisoners taken by Danish special forces were also seriously abused after being delivered into American custody at Kandahar.
The Danish government and military downplayed the incident, initially denying it had happened. One of the Danes on the operation told a journalist: "We felt very let down."
Copenhagen University law professor Jens Elo Rytter said the Danish government made a political decision to trust the US to treat transferred prisoners well, despite evidence of mistreatment. It appeared New Zealand had followed a similar path, and "certainly, to my mind, that's a breach of the Third Geneva Convention as well as the Convention on Torture".
The New Zealand defence force's top lawyer, Brigadier Kevin Riordan, said New Zealand took its responsibilities under the Geneva Convention and international law very seriously.
After one incident, the New Zealand commander at Kandahar "remonstrated with the Americans about the way they were initially handling people who were handed over to them".
Obtaining somebody's name in Afghanistan was not a straightforward process, said Riordan. Afghans often went by a number of different names, and to make sense of what they said "you would have to be able to speak their particular language, perhaps their dialect".
The chief of the defence force, Lieutenant-General Jerry Mateparae, told the Star-Times that the rules about the handing over of prisoners had been tightened since the SAS first went to Afghanistan.
At that time, "our understandings of how others would operate were quite different, and subsequently we've seen some untoward things in terms of Abu Ghraib. That wasn't on the landscape [in 2002]".
However, Ratner said the Abu Ghraib torture scandal broke in April 2004, when US violations of international law in Afghanistan had been going on for more than two years.
Former Human Rights Watch investigator John Sifton, who investigated prisoner abuse at Kandahar, said it was a myth that the US torture of prisoners began at Guantanamo Bay and spread from there to Iraq. "It started in Afghanistan," he told the Star-Times. "I find it difficult to imagine that anyone stationed at Kandahar did not know that abuse was going on."
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