Ron Smith: Afghanistan: prisoners and torture

I last wrote on this topic in August of last year (‘What to do with the prisoners?’, 25 August, 2010) when, as now, the matter of prisoner-taking by our SAS forces in Afghanistan was raised as a political and moral issue. The matter has now resurfaced through a long article by Jon Stephenson in the latest (May 2011) edition of Metro magazine. Again, accusations of impropriety are made against our SAS forces, and our political and military leadership, in relation to prisoners taken in counterinsurgency operations, in which our forces were involved, and who were subsequently handed over to US custody, or to the custody of various Afghan Government agencies. It should be noted that there is no suggestion that prisoners have been ill-treated by New Zealand soldiers. The focus of concern is rather on what happened to them after they have been handed over and this because of our legal (and moral) obligations under various international treaties and conventions.

It is, of course, indisputable that we have such obligations and that we have a duty to make good-faith efforts to ensure that prisoners held by any of the allied parties are treated humanely. That would apply whether or not we had been involved in the taking of such prisoners, although in this latter case we might be said to have more particular legal obligations (from the Geneva Conventions). The crucial question is, what should we do if we think, despite our efforts there is still a chance that captives will be ill-treated? There are several possibilities here. In the first place we could attempt to evade our legal obligations by simply ‘not taking prisoners’. This would mean that we should always need to have available persons who could ‘take’ prisoners for us. Or it could mean that we simply would not accept offers of surrender, or we would immediately release persons who have been captured. Both of these latter practices would follow if we were not able (or prepared) to hold them ourselves. The second of these (refusing quarter) is contrary to the Geneva Conventions and the last may be simply foolish in the circumstances. There are examples, from other conflicts, of prisoners who could not be held, being released on the condition that they play no further part in present hostilities but it can hardly be supposed that it could work in Afghanistan.

That leaves us with the technical version of ‘not taking prisoners’ (somebody else is always there to ‘take’ them), which seems to be the official position of both the present and previous New Zealand Governments. As the Metro article illustrates, this is a difficult line to defend, as well as being easy to see as avoidance of responsibility.
However, Mr Stephenson seems to have in mind a different conclusion that might be drawn from all this, and that is, because New Zealand cannot assure itself in the matter of the treatment of captives, it ought to withdraw from the Afghan conflict altogether. Indeed, I suspect that this is the point of the whole investigation and the subsequent article, and not supposed ill-treatment of captives, as such.

Mr Stevenson reports a visit to the Crisis Response Unit (CRU) in Kabul and an interview there with its commander (‘Colonel M*’). The CRU is part of the Afghan Government’s security apparatus. In the course of this interview, ‘Colonel M*’, confirms that the SAS was, ‘“very, very involved” in detaining suspected insurgents’. Thus, the deception is exposed! What Mr Stephenson does not apparently do, is ask the colonel about the treatment of his prisoners, or ask if he can see how they are housed. This is astonishing if the point of the article is concern about continuing human rights abuses in Afghanistan, and it tells us that his purpose is elsewhere.

The Metro article also traverses last year’s story about a raid on a warehouse in Kabul in which a couple of security guards were killed (apparently by SAS troops). Again, the focus is on ‘captives’. In this case, persons in the warehouse were said to have been held until Afghan authorities arrived, when they were released. And, the point of this? Well, it shows that SAS soldiers do take prisoners, albeit, in this case, prisoners that are released unharmed. Taken at face value, it also shows the difficulty of maintaining the fiction that the SAS do not take prisoners.

This, I think, is the problem. We should accept that SAS soldiers take prisoners and, it being impracticable to set up a separate New Zealand facility, and accepting that the Afghan Government is the territorial authority, we should accept that such prisoners are handed over. The Afghan Government has bound itself, as we have, to the relevant international law and we should press them continually regarding its observance of it. I am taking it that the alternative possibility that I suggested in my earlier blog (transfer to Guantanamo Bay) is not viable under the present US administration.

The bottom line is that we have a substantial security interest in preventing the Taliban from returning to power in Afghanistan. In this we must cooperate with our other allies and, particularly, with the Afghan Government. We may not be happy with the way they treat prisoners, just as we will have substantial reservations about the way they treat women and girls and about the extent of official corruption in the country. We should continue to raise these things with the appropriate authorities but they do not alter the ‘bottom line’.