The Sunday Star-Times has a major news story this morning: the New Zealand SAS are turning over prisoners to the Afghan secret police. Those secret police are known torturers, who use amputations, electric shocks, sleep deprivation, starvation, beatings and burns to extract "confessions". So basically kiwi soldiers are turning people over to be tortured.
Our Defence Minister's response to this? The prisoners are "an Afghan responsibility". So he's basically washing his hands of the whole matter.
Fortunately, he can't. New Zealand has specific obligations under both international and domestic law to prevent torture and not turn people over in this way. The Convention Against Torture is pretty clear:
No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.While phrased in terms of immigration law, its application is wider, and applies to any transfer of any form. Domestically, the Bill of Rights Act affirms that
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.The government's obligation to uphold this right is not limited geographically; it applies to any act or omission by any branch of the New Zealand government, whether it is done in Wellington or Kabul. If the SAS turns people over to an organisation which uses torture, or assists in their capture so they may be turned over, then they are violating it. That's exactly what the UK High Court found, under an almost identical provision in the UK Human Rights Act, when they banned the British armed forces from transferring prisoners to the NDS facility in Kabul - the same facility the SAS are sending people to.
If the government won't do the decent thing here, and ban the SAS from transferring any prisoners, then we will have to make them. The Bill of Rights Act gives us one lever for doing so. Amnesty or some other human rights group should bring a case.
(Another option is a complaint to the Ombudsman. This has the advantage that it is free, and if taken up would likely have the same result. But it would hinge on the questions of whether a decision to turn someone over to torture was "a matter of administration", and on whether anyone other than a victim of such mistreatment had standing to complain. And it would need more information than is contained in the SST story to back it up. But if any human rights group can build a case, I'd urge them to pursue this avenue as well).
