- As discussed in chapter 3, Qari Miraj played a leading role in the ambush that resulted in the death of Lieutenant Tim O’Donnell. He was placed on the Joint Prioritised Effects List (JPEL) and was captured in a partnered operation involving Task Force 81 (TF81) and Afghan personnel on 16 January 2011 (Operation Yamaha). Hit & Run alleges that after he was captured, Miraj was assaulted by TF81 personnel as he was waiting in the back of a vehicle to be driven to a detention facility operated by the Afghan National Directorate of Security (NDS) in Kabul.
- Hit & Run further alleges that while in detention at the NDS facility, Miraj was tortured and made a confession. It is alleged that New Zealand ought to have been aware of the practice of torture of those in NDS custody, and that due to the prohibition against torture, New Zealand should not have been involved with handing him over to a facility where he was tortured. The book alleges that the New Zealand Special Air Service (NZSAS) benefitted from Miraj’s confession.
- In light of these allegations, cl 7.8 of the Inquiry’s Terms of Reference requires us to examine:
Whether the NZDF’s transfer and/or transportation of suspected insurgent Qari Miraj to the Afghanistan National Directorate of Security in Kabul in January 2011 was proper, given (amongst other matters) the June 2010 decision in R (oao Maya Evans) v Secretary of State for Defence  EWHC 1445.
- As with other provisions in cl 7, cl 7.8 must be read in the context of cls 5 and 6 of the Terms of Reference. Clause 5 provides that the matter of public importance which the Inquiry is directed to consider is “the allegations of wrongdoing by NZDF forces in connection with Operation Burnham and related matters”. Clause 6 provides that the Inquiry will examine the circumstances of Miraj’s transfer and/or transportation to the NDS.
- The direction in cl 7.8 to consider whether Miraj’s treatment was “proper” in light of (among other matters) the Evans decision means that the Inquiry must consider the merits of New Zealand’s policy relating to detention as implemented by the New Zealand Defence Force (NZDF). In this chapter, we will first describe New Zealand’s detention policy at the relevant time. We will then put the policy in its legal context, to explain why it matters. Finally, we will discuss the government’s reaction to the decision in Evans to see what, if any, impact it had on the policy prior to Operation Yamaha. For ease of reference, there is a timeline at the conclusion of chapter 11.
- In Chapter 11 we will describe what happened on Operation Yamaha—its planning and execution. We will then briefly describe relevant developments in relation to the detention policy after Operation Yamaha, before concluding with our assessment in light of the facts of Operation Yamaha.
New Zealand’s detention policy
- To place New Zealand’s policy on detention in its proper context, it is necessary to recall three points. First, following the collapse of the Taliban Government in late 2001, Afghanistan was a dysfunctional state. Torture and mistreatment were widespread in state facilities. An important element of the United Nations’ response, especially through the International Security and Assistance Force (ISAF) and the United Nations Assistance Mission in Afghanistan (UNAMA), was to recognise that the responsibility for providing security and law and order throughout Afghanistan rested with the Afghan people. In practice, this was done by encouraging the development of Afghan institutions and agencies in a way that enhanced respect for the rule of law—including human rights norms in particular.
- Obviously, change would be slow and many setbacks were likely. In 2011, UNAMA reported that of those detainees who said they had been tortured by the NDS, nearly all stated that they were abused during interrogations to obtain confessions, reflecting the fact that the Afghan criminal justice system was confession-based. For a number of years, other international experts, United Nations rapporteurs and international Non-Governmental Organisations had made similar observations about the risks associated with the confession-based criminal justice system, the treatment of detainees in Afghan facilities and the lack of effective oversight or investigations. In 2007, for example, the United Nations High Commissioner for Human Rights noted that there were frequent reports of torture and ill-treatment by the NDS. When the Security Council renewed ISAF’s mandate in late 2007 by way of Resolution 1776, reconstruction and reform of the prison sector to improve respect for human rights and the rule of law was added as a key part of the mandate. In January 2011, the United Nations High Commissioner noted concern about ISAF states’ reliance on the NDS as the “de facto recipient” of detainees, given (among other things) reports of forced confessions.
- As the Crown acknowledged in submissions during Public Hearing Module 2, New Zealand was well aware in the mid-2000s that there were serious concerns about the treatment of individuals in Afghan detention facilities from reports such as those just referred to. Like other countries contributing forces to ISAF, the New Zealand Government appreciated that its forces would be operating in an environment where torture and mistreatment of detainees continued to occur, albeit perhaps with less frequency over time as conditions changed.
- Second, as we noted in chapter 2, both the Security Council and ISAF had been encouraging countries contributing forces to ISAF to partner with local Afghan forces for some time. When the Government was asked to deploy the NZSAS to Afghanistan in 2009, it was to take over the role of Norwegian forces in mentoring and partnering with a specialist police unit, the Afghan Crisis Response Unit (CRU). Operating in partnership with Afghan personnel was an integral part of the 2009 NZSAS deployment.
- Third, when Cabinet authorised the deployment in July 2009, it distinguished between two categories of detainee. This reflected the position ISAF had adopted in its standard operating procedures some years earlier. The first category comprised people captured by NZSAS personnel, and the second category comprised people captured by Afghan forces in the presence of NZSAS or other ISAF personnel—as generally occurred during operations conducted jointly by the NZSAS and the CRU (partnered operations). The Government saw New Zealand’s responsibilities to each group as being different, as we explain below.
- These elements were confirmed in Operational Directive 001, issued by the TF81 Senior National Officer in September 2009. It noted that NZDF had been directed to provide a Special Operations taskforce for a period of 12 to 18 months, which would enhance the reputation of New Zealand in carrying out its operations. Partnering with local Afghan forces to provide security to the Afghan people was noted as the area in which TF81 would have the greatest effect. TF81’s role was to plan and assist in the conduct of operations, including by providing the information necessary for arrest warrants to be issued. The Directive drew a distinction between detention by the CRU and the detention of individuals by TF81 personnel.
Individuals captured by NZDF forces
- If an individual was captured by TF81 personnel operating on their own, or with troops from another ISAF state where TF81 was the lead force, a range of protective provisions would apply to the transfer of that person to Afghan custody. New Zealand accepted that its international obligations in relation to the torture and mistreatment of detainees applied and that it was obliged to take steps to fulfil these obligations, including by making arrangements for monitoring a detainee’s treatment in custody.
- We were advised that in 2006 New Zealand obtained verbal assurances from senior officials in the Afghan Government that detainees transferred to Afghan custody by New Zealand forces would be treated humanely, in accordance with International Humanitarian Law and International Human Rights Law. The assurances also addressed the issue of the death penalty. Following the North Atlantic Treaty Organization (NATO)’s urging, they were finalised in a written arrangement in 2009, which was signed by NZDF and the Afghanistan Ministry of Foreign Affairs. The annex to the arrangement contains a complementary Military Technical Arrangement between the Government of New Zealand and the Government of the Islamic Republic of Afghanistan.
- The Arrangement sets out the principles and procedures to govern transfers in Afghanistan from NZDF to the Afghan authorities. Both sides agreed to observe the applicable principles of international law in the transfer and treatment of such persons. As to detention visits, there was provision for representatives from the Afghanistan Independent Human Rights Commission, the International Committee of the Red Cross (ICRC) and NZDF to have full access to persons detained by NZDF and transferred to Afghan authorities. NZDF undertook to notify the other agencies where a person had been transferred. The Afghan authorities accepted record-keeping and notification obligations. The Arrangement between Afghanistan and New Zealand, as well as internal NZDF Directives, operated alongside ISAF’s standard operating procedures on the handling of detainees.
- Under the detention guidance noted by Cabinet, persons detained by NZDF personnel were not to be transferred or handed over to Afghan authorities or to other ISAF coalition forces without the prior approval of the Chief of Defence Force or the Commander Joint Forces New Zealand.
Individuals captured on partnered operations
- If an individual was captured during a partnered operation involving TF81 and Afghan forces, the approach was that Afghan personnel would arrest the person, generally by executing an Afghan arrest warrant, unless they were not reasonably available do so. The operation was considered an “Afghan-led” law enforcement operation in which the arrested person was detained by Afghan officials. Accordingly, the provisions on transfer and monitoring of detainees that applied where NZDF personnel made a detention in a non-partnered operation did not apply. This was the case even if NZDF had (with the exception of signing and executing the arrest warrant) been largely responsible (in a practical sense) for the entire operation—initiating it, planning it and carrying it out, even to the point of drawing up the warrant.
- As is reflected in the Crown Agencies’ submissions, New Zealand’s policy was that its obligation not to hand over detainees to another state if there were substantial grounds to believe the detainees faced a real risk of torture (non-refoulement obligation) did not apply to individuals arrested by Afghan officials on partnered operations. This was because, unlike those detained by TF81 personnel, they never came within New Zealand’s “jurisdiction”. Since these individuals were never in New Zealand’s jurisdiction, TF81 personnel did not “transfer” them into Afghanistan’s jurisdiction—they were always within it. As a consequence, New Zealand had no legal power to intervene and any attempt to do so would have been a breach of Afghanistan’s sovereignty. However, the Crown Agencies did accept that New Zealand was subject to an obligation to ensure that any assistance provided to Afghan authorities did not amount to aiding or assisting any intentionally wrongful act.
- The practical effect of New Zealand’s detention policy was significant. Most of the operations in which TF81 personnel were involved during Operation Wātea were partnered operations during which Afghan authorities made arrests. So the effect of the New Zealand policy was that New Zealand did not accept any responsibility for the treatment in detention of most of the people TF81 personnel were involved in capturing. We were told that during Operation Wātea TF81 detained only one person itself (compared with the nearly 200 persons captured on partnered operations). It is worth noting that, up until April 2010, ISAF standard operating procedures for detainee handling did not apply to people detained on partnered operations. However, it was recognised that detention was a national issue, so that states could lodge national caveats, or pursue bilateral arrangements, to ensure compliance with their own international legal obligations as they saw them or with national policy positions. The ISAF procedures also did not restrict states, such as New Zealand, from adopting a policy that would afford the same (or similar) protections to people detained during partnered operations as were applied to those detained by a state’s forces acting on their own. We return to this in chapter 11.
- Before we move on to outline the significance of the detention policy in terms of the applicable law, we should briefly address the topic of mentoring.
- The concept of “mentoring” is a broad one, covering a wide range of possible approaches. The ultimate objective of ISAF forces mentoring local police or army units in Afghanistan was to develop their capability by raising their level of knowledge, developing their technical and operational skills and experience and enhancing their appreciation of procedural norms and human rights considerations. Obviously, for any mentoring to be effective, the CRU had to have access to the right type of equipment, which was by no means a given. On Operation Burnham, for example, the CRU members did not have night vision goggles.
- The nature and intensity of the mentoring required by an ISAF partner depended on the characteristics of the group being mentored and the nature of the particular operation being undertaken:
- Mentored groups might comprise people who were essentially raw recruits (many illiterate) with little in the way of adequate equipment or relevant skills and experience (even basic skills such as map reading), through to groups at the other end of the spectrum who were reasonably well equipped and had relevant skills and experience which they were seeking to improve.
- Operations might differ markedly in terms of focus and complexity. Active insurgent leaders or fighters were of interest from an armed conflict perspective and from a domestic law enforcement perspective. Even though operations to capture them were likely to serve both armed conflict and law enforcement objectives, some operations might be essentially routine law enforcement operations while other operations with more of an armed conflict focus were likely to be significantly more complex and challenging.
- Because the nature and style of the mentoring undertaken had to respond to the needs of the particular group in the particular operational context, many variations in approach were possible. At one end of the spectrum, local forces could be taken on an operation but given no or very little organisational or operational responsibility—essentially they would be observers. At the other end of the spectrum, the local forces might take the principal responsibility for organising and undertaking an operation, but with some guidance from their mentors along the way—they would be primary actors, with the mentors observing and providing advice/oversight.
- In a minute in May 2011, the Senior National Officer summarised the capability that the CRU had reached in the following way:
CRU is now capable of conducting unilateral operations of low complexity. Recent acquisitions of [redacted], Russian AK47s and [redacted] have enabled a recent capability leap. Since then CRU has demonstrated a consistent ability to move [redacted] to the target, [redacted] cordon, clear the target and conduct exploitation. While there is still room for refinement, this demonstrates a pleasing progress towards the full spectrum of unit functions. The focus will now reorientate to developing CRU capability on complex unilateral operations.
- Later in the minute, the Senior National Officer commented on the impact of a reduction in the size of TF81 on its mentoring role with the CRU. Having noted that the reduction presented a number of challenges and opportunities, he said:
The emphasis of the CRU relationship will now move away from partnering/mentoring toward a true mentoring/observing relationship. This will force the CRU to take more responsibility for its day to day function and the conduct of its operations. Such an approach will have its challenges and not be without setbacks.
In concluding his report, the Senior National Officer said that “[t]he period covered by this report has seen clear capability leaps by CRU towards an ability to conduct complex unilateral operations and respond effectively to the insurgent threats within Afghanistan”.
- Two points emerge from this. First, a distinction is drawn between “partnering/mentoring” and “true mentoring/observing”, which reflects what we have said about the breadth of the notion of “mentoring”. The second is that even after approximately 18 months of intense mentoring by TF81 personnel, and despite the progress they had made, the CRU was only capable of conducting operations of “low complexity” on its own, although their capability was developing. This point was also confirmed in other evidence considered by the Inquiry.
- Apart from issues relating to the equipment, knowledge, skills and experience of Afghan partner forces, two further issues in relation to partnered operations were significant:
- As was generally the case with ISAF’s Special Operations Forces, most of TF81’s work was intelligence-driven. Much, probably most, of that intelligence could not be shared with Afghan partner forces for security reasons. Over time, TF81 personnel attempted to get around this difficulty by using the intelligence they had acquired to develop legally admissible evidence that could be used within the Afghan criminal justice system—as a basis for arrest warrants, prosecutions and so on.
- TF81 personnel tended to provide information about impending operations to the CRU or other relevant Afghan partner forces at a late stage to avoid the possibility of leaks, such as the particular target being tipped off. Allegiances within Afghan government forces were not always (or only) to the central government.
- The reality that partnered operations could involve very different arrangements, depending on the characteristics of the local partner and the nature of the particular operation, raises the important question of whether the New Zealand policy in relation to detention on partnered operations took sufficient account of the particular role of the partner force in the particular operation. We will address this in greater detail in chapter 11.
The legal setting
- We turn now to the second of the topics identified in paragraph ; namely, the significance of the detention policy implemented by NZDF—why it matters in terms of New Zealand’s international obligations in relation to the torture or mistreatment of detainees. We give a brief overview of the law relating to torture and mistreatment of detainees. Most of what we describe is not disputed. Two issues are contentious, however. They are:
- Whether and, if so, when, a person detained on a partnered operation falls within New Zealand’s “jurisdiction” for the purpose of New Zealand’s obligations in relation to torture.
- On what basis one state can be held complicit in another state’s breach of its obligations in relation to torture.
- Complex legal and operational issues arise when one state delivers people, or assists in the delivery of people, to agencies or places where detainees may be tortured and those places are located in, or controlled by, another state. The prohibition against torture is one of the most important rules in the international legal order and it gives rise to a number of fundamental obligations. A problem sometimes encountered in these circumstances is that torture may occur despite national laws and government efforts to eradicate the practice—that is, when a state is genuinely committed to reform but lacks sufficient practical control over its agencies at the local level. This creates difficult challenges, to which other states and international actors must be alert when engaging with, or assisting, a state where torture is known to occur.
- The law of torture contains a number of different elements, derives from various legal sources and has spawned a vast literature. We will not attempt to traverse the law in detail, but rather we set out below a brief outline of its key features and what it requires in practical terms. To do this, we address three essential issues:
- the sources of law—where it is found and how it is described in key instruments and relevant guidance;
- the content and status of the law—what it requires states to do, and the importance of the rules internationally;
- the application and consequences of the law—to whom it applies, where, and what happens when breaches occur.
Sources, content and status of the law on torture
- The law obliges states to prevent and respond to torture, as well as to cruel, inhuman or degrading treatment or punishment. This law is found at local, regional and international levels, and appears in criminal, humanitarian and human rights law treaties. In addition to treaties, the law on torture can be found in customary international law as well as general international law. The expectations of states with respect to torture and its prevention are extensive. The prohibition of torture sits in the top level of the hierarchy of international legal rules. It reflects the global conscience and has the status of international constitutional law.
- In terms of treaties, the most well-known subject-specific treaty is the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (the Convention against Torture). The Convention against Torture is a global convention, the provisions of which demonstrate the repugnance with which the international community views torture. New Zealand and Afghanistan are both parties to the Convention and are bound by its terms.
- The Convention prohibits torture and requires states to criminalise torture in their domestic laws. The definition prohibits the following conduct:
… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The definition is broad: it is not limited to physical suffering; it covers torture committed for a variety of purposes; and captures the conduct not only of those who commit torture directly, but also those who consent to it or who acquiesce in it (that is, who turn a blind eye or otherwise fail to act).
- Acts of torture, as defined in the Convention, must be criminalised in domestic law. So, too, must attempts to commit torture and complicity. Sentences or penalties for commission, attempt and complicity must reflect the gravity of the offences. If there are reasonable grounds to believe torture or ill-treatment has occurred, states must investigate promptly and impartially. The obligation to investigate does not depend on a complaint being made. The prohibition on torture is absolute: torture cannot be justified by any exceptional circumstances (war, threat of war, internal political instability or public emergencies). States must also take a range of effective legislative, administrative, judicial and other measures to prevent torture in their jurisdiction.
- In addition to the prohibition on torture and other obligations, a keystone of the Convention—which is relevant to a number of modern cross-border and international situations—is the obligation of non-refoulement. A state must not expel, extradite, or return (refouler) a person to another state if there are substantial grounds to believe that the person returned would be subject to torture. The rule is described in slightly different ways in different treaties, but it is ultimately focused on returns that take place “in any manner whatsoever”. At its heart, the rule is about not exposing an individual to a situation of risk. The duty is, therefore, primarily concerned with the effects of state conduct rather than its form. When assessing that risk, a state can take into account, among other things, whether “gross, flagrant or mass violations of human rights” occur in the receiving country.
- We highlight four points about the non-refoulement obligation:
- First, the “gross, flagrant, or mass violations” consideration applies to violations of human rights, not only to torture. To assess the torture risk, a sending state can and should look at a country’s overall human rights record as well as the character, gravity and scale of detainee mistreatment in that country. In evaluating these factors, it is important to look not only at the number of allegations made or proven. It is well known that torture is often under-reported and, in some cases, evidence may be hard to obtain or verify. Qualitative features (including patterns of behaviour by officials or common themes in complaints) may be more useful than numbers alone.
- Second, the threshold of “substantial grounds to believe” may be reached even when torture is not officially sanctioned or part of a policy—torture may occur as a result of, or despite, state policies. Genuine public or private statements about commitment to change should be welcomed, as should steps taken towards reform. It may be the case, however, that despite best efforts, torture continues to be a problem. When assessing risk in these contexts, an appropriate degree of caution is necessary, especially when allegations may be made or where the issues to be addressed will take time to resolve.
- Third, while the risk of torture must be more than a mere possibility (the risk must be “real”), it does not need to be shown to be probable or certain. The rule is preventive and, where doubt exists, a state should err on the side of caution. A preventive approach can cause resource, relationship or other challenges for states. Despite these challenges, the significance of torture and the imperative nature of its prevention calls for a correspondingly high level of effort and effective measures.
- Fourth, and importantly, as far as we are aware it has not been suggested that individuals need to be in a state’s legal custody for the obligation to be triggered. As scholars in this field explain, treaty and UN Charter bodies have not generally focused on the type of transfer: if a person is in a state’s legal or physical custody, non-refoulement can apply. Depending on the circumstances, relatively brief periods of custody, legal or physical, may be capable of engaging a state’s legal obligations. The absence of an exhaustive list of transfer scenarios is understandable given non-refoulement’s preventive nature and the fact that transfers occur in a wide range of settings. Some transfers are complex and may involve a number of actors working together. As written, non-refoulement under the Convention against Torture covers “all measures by which a person is physically transferred to another state”, and United Nations organs, such as the General Assembly, have referred to the obligation not to expel, return (refouler), extradite, or in any other way transfer a person. As seen above, New Zealand’s detention policy accepted that New Zealand’s non-refoulement obligations applied when NZDF personnel captured a suspected insurgent in Afghanistan and wished to hand that person over to Afghan or other authorities, but not when NZDF personnel were involved in a partnered operation during which Afghan authorities made an arrest.
- The core obligations (that is, the prohibition on committing torture, the non-refoulement obligation and the obligation to prevent) do not exist in neatly defined “silos”; they are interdependent and mutually reinforcing. As well as deriving from multiple sources of law, the content of the obligations can overlap. Returning or transferring a person despite a real risk of torture, for example, is at once a breach of non-refoulement, may amount to co-commission of torture or complicity in torture, and clearly falls short of the obligation to take all necessary measures to prevent. The connection between these three obligations is readily apparent in law enforcement, military and counter-terrorism settings, and has been explained by the United Nations Special Rapporteur on Torture, as well as other international experts. We return to them when we assess the New Zealand approach.
- In 2004, the United Nations adopted the Optional Protocol to the Convention against Torture (OPCAT). It requires member states to establish a system of regular, independent inspection of detention facilities at the local level, as well as permitting in-country visits by the United Nations. New Zealand has been a party to this treaty since 2007 and has developed a detailed framework for monitoring the treatment of people in detention. Afghanistan became a party in 2018.
- The prohibition against torture is also found in several other international human rights treaties (such as arts 7 and 9 of the International Covenant on Civil and Political Rights (ICCPR) and equivalent provisions in the Universal Declaration of Human Rights 1948). Regional treaties such as the European Convention on Human Rights mirror this international law in large part and a rich body of case law has developed over the years in relation to the prohibition of torture and related obligations. Non-treaty documents developed by the United Nations, states and sometimes international organisations (“soft law” instruments) are also relevant. Although not binding, they often contain important standards and practical guidance about how states can or should fulfil their international obligations and how torture can be prevented in practice.
- Additionally, International Humanitarian Law prohibits torture and requires preventive steps to be taken. For a non-international armed conflict of the type in which New Zealand was engaged in Afghanistan, Common Article 3 and Additional Protocol II to the Geneva Conventions are relevant and applied. Common Article 3 expressly prohibits violence to life and person (including murder, mutilation, cruel treatment and torture) and outrages upon personal dignity, in particular humiliating and degrading treatment. Common Article 3 also requires “minimum standards for detention”.
- In his expert evidence to the Inquiry, Professor Emeritus Sir Kenneth Keith QC emphasised these provisions. He said that Common Article 1 “requires the State parties in all circumstances not only to respect the Conventions but also to ensure respect for them”. He went on to say:
[The obligations undertaken in the Conventions] are unilateral obligations owed by each and every State party to all others or really to the people who are to be protected; the principle of humanity is at stake. The ICRC Commentary to the article states two propositions, among others, relating to the obligation that interests protected by the conventions are of such fundamental importance to the human person that every State party has a legal interest in their observance, wherever a conflict may take place and wherever its victims may be; and that they do everything reasonably within their power to ensure that the provisions are respected universally – by other States and non-state parties.
Relevantly, the duty to “ensure respect” applies to the prohibition against torture or mistreatment and other obligations that arise from Common Article 3.
- New Zealand has ratified all of these Conventions and Afghanistan is also a party. Further guidance on detention issues in military settings, which can be read alongside other international guidance on detention generally, is contained in the 2012 Copenhagen Principles and Guidelines. New Zealand participated in the development of these Guidelines.
- Finally, New Zealand has updated its domestic law to give effect to many of the provisions contained in the international treaties to which it is a party. So, for example, s 9 of the New Zealand Bill of Rights Act 1990 provides: “Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.” The Crimes of Torture Act 1989 makes torture a criminal offence, which is punishable by up to 14 years’ imprisonment. A person who commits torture is liable under the Act, as is a person who “does or omits an act for the purpose of aiding any person to commit an act of torture”. In addition to being a crime in its own right under the Convention against Torture, torture can be prosecuted as a war crime, an act of genocide, or a crime against humanity (or a combination). In New Zealand, the International Crimes and International Criminal Court Act 2000 criminalises torture as part of genocide, war crimes or crimes against humanity and provides for its prosecution in New Zealand. New Zealand is a party to the Genocide Convention 1948, which recognises acts which may amount to torture as acts of genocide, as well as the Rome Statute of the International Criminal Court. Also relevant in this context are the Geneva Conventions Act 1958 and the Armed Forces Discipline Act 1971.
Customary international law
- A further source of the law on torture is customary international law. Unlike treaties, which apply only to those states that ratify them, customary international law binds all states regardless of their treaty membership. Custom develops gradually, over time. For custom to become recognised as “law”, it must (a) result from a large and consistent pattern of state practice and (b) the practice of states must be informed by their belief that they are legally obliged to act in that manner. Custom sometimes reflects the written law, and may develop beyond it, to fill gaps in the law when unique issues not previously imagined arise. The prohibition against torture is part of customary law, as is the rule of non-refoulement and the obligation to prevent. It is important to remember that customary international law does not require absolute uniformity in the practice of all states; nor does the objection by a minority of states necessarily undermine it. What matters is that the practice is widespread in the international community and that it is based on a correct and genuine view that international law obliges states to act in that manner.
- As we noted in chapter 6, some of the central rules of International Humanitarian Law applicable to non-international armed conflicts are recognised as jus cogens or peremptory norms. The widespread recognition of the evils arising from torture has resulted in the prohibition of torture being recognised as such a norm. Because peremptory norms are the most important rules of international law, they may be described as having a constitutional character or function. They sit at the apex of the hierarchy of international norms and, as such, rank above treaties and customary international law. They also bind states that are not parties to treaties covering similar topics.
- As they represent the most fundamental standards of the international community, no departure from peremptory norms is permitted. They cannot be overridden by treaties. They inform the interpretation of treaties—states are presumed to have intended to comply with peremptory norms and a court will be slow to arrive at the conclusion that a treaty was designed to be applied in a contrary manner.
- Beyond the impact on treaties, peremptory norms give rise to what are known as obligations erga omnes, which have been described as “obligations owed towards all”. States therefore owe these obligations to the international community as a whole. All states have an interest in upholding jus cogens and discharging these obligations—a breach anywhere is a concern to states everywhere. What is required of states depends on the type of norm. For norms in the field of human rights, such as torture, the most commonly cited obligations are prevention and effective response. These obligations involve criminalising the prohibited conduct; taking effective measures to prevent its occurrence; undertaking prompt, impartial and effective investigation of alleged breaches; prosecuting alleged perpetrators or extraditing them where another state is seeking to prosecute them; not granting amnesties or immunities for torture; and not applying statutes of limitation to proceedings for torture. Non-refoulement has been described as an erga omnes obligation flowing from the prohibition of torture. Given the act of returning someone to torture risk may also amount to direct or indirect participation in torture and failing to take available steps to prevent it, some consider the rule to have risen to a peremptory norm in its own right.
- Further, in terms of enforcement, breaches of peremptory norms can give rise to individual responsibility and state responsibility. States are subject to a stricter regime of responsibility than for other acts that have not reached the level of peremptory norms. Where a breach occurs, or is occurring, all states are duty bound to cooperate to bring to an end the breach (through both individual and collective action), to not recognise situations resulting from the breach, and to not render aid or assistance in maintaining the situation created by the breach. Not assisting in maintaining the breach includes, for example, the duty to “reject the fruits of torture” (for example, the use of confessions and evidence obtained through torture).
- To summarise, the law on torture comes from various legal sources and contains numerous obligations. For present purposes, the core obligations fall into three broad categories: preventive obligations, conduct obligations and response obligations. States need to do all they can to prevent torture, not commit it or be complicit in it, not return or transfer people to places where they face a real risk of torture, and respond swiftly and effectively if torture may have, or has, occurred. The obligations apply in peacetime and in conflict, and apply to the state and its officials when they act in an official capacity abroad. States are expected to be vigilant in preventing and responding to torture, to know when to act and when to refrain from acting or assisting, and to be aware of how their actions or omissions may enable breaches by others and adjust their approach accordingly.
- In some settings, prevention may mean that a state needs to seek and obtain specific and effective assurances and undertake regular and effective detention monitoring. In some cases, it will require not transferring persons or having in place alternative options for detention, as part of a wider conditional assistance policy that provides for the varying, amendment, suspension or termination of assistance where human rights breaches are suspected, alleged or detected. A policy of this sort needs to be in place before military or similar international deployments, so officers know how to, and are able to, make correct and consistent decisions to protect people from harm. It should also address how allegations of torture or ill-treatment are received, recorded, reported and investigated; with clear protocols to ensure investigations are prompt and impartial and remedial measures are effective.
- Capacity building and encouraging compliance with the law complement, but do not replace, the need for other efforts by a state. This is not easy work, but the level of effort reflects the seriousness of the potential consequences. As the International Criminal Tribunal for the Former Yugoslavia confirmed in one of its seminal cases on this subject:
States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical and moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture.
A state’s responsibility for breaches of torture and mistreatment obligations towards detainees
- A state may be responsible for breaching its obligations in relation to torture or mistreatment of detainees either directly or by being complicit in the activities of another state that tortures or mistreats detainees. Accordingly, we address briefly the circumstances in which a state may incur responsibility:
- directly, when its armed forces operate in the territory of a foreign state to support that state against an armed insurgency;
- based on complicity in the wrongdoing of another state.
A state’s obligations when operating abroad
- An issue we are required to consider is the extent to which New Zealand’s obligations in relation to the detention and transfer of people who face a real risk of torture are engaged when New Zealand operates abroad. As is apparent from New Zealand’s detention policy, the Crown has accepted that New Zealand’s non-refoulement obligations applied when NZDF forces in Afghanistan captured suspected insurgents and wished to transfer them to the custody of Afghan authorities. In submissions, the Crown Agencies acknowledged that:
- Different provisions of the Convention against Torture are subject to different jurisdictional requirements. Article 3, which contains the non-refoulement obligation, is not subject to any geographical limitation.
- Although art 2(1) of the ICCPR requires that state parties “undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”, the concept of jurisdiction has been interpreted as applying extraterritorially where it can be said that a contracting state has “jurisdiction” over either place or people. The decisive criterion for determining “jurisdiction” in this context is whether the place or person comes within the effective control and authority of the state. Effective control may relate to a place or to a particular person.
This meant that New Zealand was required to make suitable arrangements with Afghanistan in relation to suspected insurgents detained by TF81 personnel so as to give effect to its obligations. As we have indicated, New Zealand did put arrangements in place.
- On the other hand, the Crown argued that New Zealand did not have “jurisdiction” over suspected insurgents who were captured in Afghanistan in the course of partnered operations where Afghan personnel executed arrest warrants against the suspects. Such persons were, it was argued, never detained by TF81 personnel and were therefore never within New Zealand’s jurisdiction; rather they were detained by Afghan authorities pursuant to Afghan arrest warrants and were always within Afghanistan’s jurisdiction. TF81 personnel simply assisted Afghan authorities in the operation of their criminal justice process. Because Afghanistan is a sovereign nation, New Zealand had no ability to interfere with the domestic affairs of another state, including in relation to judicial proceedings. The level of support provided by foreign forces could not affect this position.
- As we noted in chapter 6, the extraterritorial application of human rights obligations is a difficult issue. We have carefully considered advice on this topic and have received written and oral evidence, including evidence from Professor Dapo Akande. We have also received extensive and helpful submissions from both the Crown and non-Crown core participants. While the “effective control” test seems to be widely accepted, what is contentious is its scope, for example, whether the capacity to wield lethal force against an individual is in itself sufficient to constitute “effective control”.
- The issue of extraterritorial application has arisen in a variety of contexts, most frequently under the European Convention on Human Rights. Article 1 of the Convention provides that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (emphasis added). The European Court of Human Rights took an expansive approach to jurisdiction under art 1 in Al-Skeini v United Kingdom, observing that while jurisdiction under the Convention is primarily territorial, it may apply extraterritorially in certain circumstances, including where a state exercises “physical power and control” over an individual. In the United Kingdom, the Court of Appeal of England and Wales in Al-Saadoon v Secretary of State for Defence interpreted Al-Skeini as requiring something more than just the use of force against an individual, finding that some prior element of control over the individual is necessary. Even so, the Court of Appeal accepted that what Al-Skeini described as the “state agent and control” exception (that is, jurisdiction arising from a state’s control over a particular person) may apply to cases which “do not involve detention but where, nevertheless, the situation is so closely linked to the exercise of authority and control of the state as to bring it within its jurisdiction for this purpose”.
- United Nations human rights treaty bodies and special mandate holders have provided guidance on the application of global human rights treaties when member states operate abroad. The Committee against Torture has explained that the obligation of non-refoulement applies extraterritorially. The Special Rapporteur on Torture has said that the prohibition of torture is peremptory and non-derogable, that it “cannot be territorially limited” and that “any jurisdictional references found in the Convention against Torture cannot be read to restrict or limit States’ obligations to respect all individuals’ rights to be free from torture and ill-treatment, anywhere in the world”. Given non-commission, non-refoulement and prevention are part and parcel of the prohibition on torture, at least these three obligations (and likely others) can be said to apply when a state operates abroad. The real issues are how the obligations apply given the state is acting abroad and how any overlapping or conflicting obligations are to be addressed.
- The Crown submitted that while the Committee against Torture appears to have suggested that the obligation to prevent torture is a peremptory norm, this does not affect or displace the territorial limit of the treaty obligation to prevent torture. We have focused primarily on the peremptory prohibition of torture and its consequences. Prevention may at least be regarded as a consequence of the jus cogens prohibition and something which is legally and practically tied to its fulfilment. Prevention exists, in different forms and described in different ways, in treaty, customary, and general international law. The elevation of rules to jus cogens, and the content and scope of corresponding obligations, is informed by, but may transcend, the confines of particular treaty provisions. Rules and obligations at this level of the international hierarchy of norms are not static; they continue to evolve in light of the global expectation and practice of effective repression of conduct that shocks the global conscience.
- In this sense, the Special Rapporteur provides useful observations about the relationship between torture’s jus cogens status and the way in which the rights and obligations in the Convention (including prevention) apply without territorial limitation. Clearly, how a state gives effect to these obligations may differ to how they are applied domestically, and extraterritorial application also requires states to act in conformity with international law. Where a state acts in an official capacity and exercises its jurisdiction (as effective control and authority over people, places or situations) abroad, it carries a range of obligations. International prevention requires concerted efforts, both general and specific, to effectively avert torture.
- We should note a further point. As we have said, Sir Kenneth Keith gave evidence about the combined effect of Common Articles 1 and 3 of the Geneva Conventions, which is that states are required to “ensure respect” to the best of their ability of the prohibition on torture and mistreatment of detainees, and the requirement for minimum standards of treatment. These obligations apply wherever the state is operating—at home or abroad—and apply to the treatment of detainees in the context of a non-international armed conflict. The obligations are engaged independently of any concept of “jurisdiction”.
- We acknowledge, however, that, in giving effect to obligations when operating abroad, states must act in a manner that is consistent with state sovereignty and in accordance with international law. Sovereign states may commit acts of torture despite the multiple prohibitions against it. Where that happens, international law contemplates that other states will work together to ensure the offending states comply with these fundamental and universal rules, and that assisting states will comply with their own obligations when doing so. Obviously, this can be a difficult and delicate process, but states can achieve this in a manner that respects sovereignty as far as is appropriate, without wavering from clear and objective human rights standards. We return to this in chapter 11.
- Counsel for Mr Stephenson argued that joint state responsibility could arise in the context of partnered operations, relying on art 47(1) of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. The argument was that the circumstances of a partnered deliberate detention operation might be such that it is difficult to say that one of the states involved is responsible for a detention; rather, it might be more accurate to say that both states are responsible for it. Counsel referred to the 1960 commentary of the ICRC on art 12 of the Third Geneva Convention, which allocates responsibility for the treatment of prisoners of war in international armed conflicts. That commentary recognised that there may be difficulties in determining which particular state among several captured particular prisoners. In those circumstances, it said that all states involved should be responsible. The argument was that a similar principle could apply in the present context.
- We finish this section by saying that, for the purposes of this Inquiry, we do not need to set out the precise formula for the attribution of responsibility in complex multinational settings, although we address in chapter 11 what we see as available as a matter of legal principle and practical application of jurisdictional concepts in these settings. The assessment is an intensely factual one, depending on the nature and extent of any control and authority in the particular factual situations at issue. We have, in a sense, a starting point in the position accepted by the Crown Agencies: that when NZDF captured a suspected insurgent, New Zealand’s non-refoulement and other obligations were engaged. The question for us will be whether the circumstances of Qari Miraj’s capture are such as to engage the relevant obligations.
- Like the law in relation to extraterritorial jurisdiction, some aspects of the law on complicity are controversial, giving rise to different views. An important question in this context is what mental element must be established. A range of possibilities exist: knowledge, constructive knowledge, wilful blindness, recklessness, purpose, intention or a combination of these. It is necessary to consider the different formulations for complicity at the international level, and to understand what particular facts or circumstances an assisting state must know or understand before complicity arises.
- The Crown Agencies drew attention to the commentary to art 16 of the International Law Commission’s Draft Articles on State Responsibility dealing with aiding or assisting, which expresses the view that the assistance must be a necessary element in the wrongful act and the assisting state must act with a view to facilitating that wrongful act. Accordingly, the Crown Agencies submitted, an assisting state must act with a view to facilitating (that is, with the purpose or intention of facilitating) the wrongful act. By contrast, in his evidence, Sir Kenneth Keith disagreed with the commentary and expressed the view that the customary law underlying art 16 did not require the element of necessity or that the aid or assistance be given with a view to facilitating the commission of the wrongful act—knowledge of the wrongdoing was, in his opinion, sufficient. In an opinion which we discuss later in this chapter, the Solicitor-General noted the possibility that constructive knowledge might be sufficient to establish liability for complicity.
- As will be apparent, there is a range of views as to which standard applies, or ought to apply, to state complicity. We will not attempt to resolve the competing views, as much depends on the particular context. While the Draft Articles are a useful starting point, they do not displace other, more specific regimes (such as treaties) that contain complicity provisions and which are capable of application in extraterritorial settings. The Draft Articles can, therefore, be read alongside or be interpreted in light of more specific treaty rules.
- The most relevant example in this case is the Convention against Torture. The Special Rapporteur on Torture has explained that individual and state complicity can result from “acts that amount to instigation, superior order and instruction, consent, acquiescence and concealment”. As to purpose/intention, having noted that some domestic courts have concluded that complicity at international law required direct encouragement of acts of torture, the Special Rapporteur explained that complicity to torture “must be governed by a different standard”, due to the status of torture under international law and the obligation to prevent. As a result, “[t]he responsibility of a State is objective and results from a policy or practice of acquiescing in torture [committed by others]”. Accordingly, assistance or cooperation with a country that is known, or ought to be known, to use torture in a systematic or widespread manner is “turning a blind eye to what goes on” and gives rise to complicity.
- The Crown submitted that the Special Rapporteur’s view does not reflect customary international law. We see merit in the Special Rapporteur’s approach, particularly given the Special Rapporteur’s role as a leading United Nations expert on the content and scope of torture obligations under international law. At the same time, we do not think it necessary to express a concluded view about this as ultimately our conclusions do not require it. We note that, at a minimum, the Crown Agencies and Counsel for Mr Stephenson agreed that wilful blindness may enable an inference to be drawn about an assisting party’s mental state and, where wilful blindness is made out, complicity can arise. Ultimately, however, it may be more straightforward to analyse particular factual situations in terms of a potential breach of an obligation to prevent torture and non-refoulement, rather than in terms of complicity. This does not diminish the importance of complicity in this area of law, nor of the importance of ensuring conduct and policies do not give rise to complicit conduct. We leave it open as to whether or not complicity is engaged on the facts as laid out in chapter 11.
The development of the detention policy
- Clause 7.8 of the Terms of Reference requires us to consider, among other things, the decision in Evans in 2010. To do that, we need to set out what the case relevantly held—and how NZDF and other New Zealand agencies addressed it. We note that a number of New Zealand government agencies spent much time considering detention-related issues, particularly after Evans. The policy applicable to detention in partnered operations involved input and advice from NZDF, the Ministry of Foreign Affairs and Trade (MFAT) and Crown Law. In addition, there was a high degree of ministerial interest in the issue—agencies provided numerous briefings about it, primarily to the Minister of Defence, Hon Dr Wayne Mapp, and the Minister of Foreign Affairs, Hon Mr Murray McCully—as well as parliamentary interest, as evidenced by questions in the House and select committee proceedings. There was also media interest.
- In April 2010, ISAF introduced a Directive that imposed additional responsibilities on ISAF forces involved in partnered operations during which Afghan forces detained suspected insurgents. An important requirement was that ISAF forces would provide information to ISAF about “detention events” by Afghan partners, including the names of those detained. ISAF would record this and provide the information to two humanitarian agencies. This led to a question from theatre about whether the Directive’s requirements, coupled with the fact that TF81 personnel collected biometric data from those detained on partnered operations for ISAF’s purposes, would mean that New Zealand would have some responsibility for those detained. Following consideration, the Commander Joint Forces New Zealand responded that the additional responsibilities imposed by the Directive did not mean that the relevant suspects were “detained” by TF81 personnel.
The Evans case
- While the issue of detainees, and the question of New Zealand’s obligations in partnered operations, had been considered at early stages of the deployment, a trigger for much of the work carried out by NZDF and other Crown Agencies on detention in partnered operations was the decision of the High Court of England and Wales (Richards LJ and Cranston J) in the Evans case, delivered on 25 June 2010. The United Kingdom armed forces had a policy that people they detained in Afghanistan would be transferred to Afghan authorities within 96 hours or released, but would not be transferred where there was a real risk at the time of transfer that they would suffer torture or serious mistreatment. This policy reflected ISAF’s detainee transfer policy and was not under challenge in the proceedings. Rather, the applicant’s case, brought by way of judicial review, was that those transferred by United Kingdom forces into Afghan custody were in practice at real risk of torture or serious mistreatment, so that the transfers were in breach of the United Kingdom’s policy and were unlawful.
- The Court began by noting that United Kingdom armed forces operating in Afghanistan had authority to capture or kill insurgents and that the power to capture extended to a power to detain, at least temporarily. Equally, the Afghan Government had an interest in insurgents, in the sense that they were likely to have committed criminal offences. Prosecuting such individuals successfully was an important part of the strategy for securing the rule of law and enhancing security. The transfer policy reflected these dual armed conflict / law enforcement interests in insurgents and set out how ISAF-captured detainees were to be managed (although the Court noted that this did not prevent bilateral arrangements to be concluded with Afghan authorities). The Court also noted that ISAF standard operating procedures provided that the NDS was the preferable body for the reception of ISAF detainees, as this would ensure common processing and tracking of detainees following transfer.
- Having considered the accounts of mistreatment of detainees and the measures in place under the United Kingdom policy, the Court canvassed the evidence showing that the United Kingdom was aware of the various reports of torture and mistreatment of detainees by Afghan agencies, discussed the arrangements put in place between the United Kingdom and Afghanistan on the issue of detainee transfers, and considered the United Kingdom’s monitoring efforts. Ultimately, the Court held that transfers to NDS 17 in Kabul would be in breach of the policy and unlawful. It said that a moratorium that the United Kingdom was observing in relation to transfers to that facility should remain in place. However, the Court concluded that transfers to two other NDS facilities (located elsewhere in Afghanistan) could continue, subject to improvements in monitoring. It was essential, the Court confirmed, to implement “an effective set of specific safeguards” if detainees were to be transferred without a real risk of torture.
- The case did not deal with detentions on partnered operations. Nevertheless, we consider that it is relevant to such detentions, in particular because the Court noted that:
- evidence, especially international reports between 2005 and 2010, indicated “widespread and serious ill-treatment of detainees, including ill-treatment by the NDS in particular, with continuing grounds for concern despite improvements over time”;
- torture in Afghan facilities was not merely an historical issue because the reports about the condition of detainees in Afghanistan displayed “a substantial degree of consistency over time”;
- reports indicated that torture was used to obtain confessions, which were important to obtaining convictions;
- it would be wrong to discount the volume of complaints about torture in Afghan detention facilities, the significance attached to them by reputable human rights agencies and the lack of transparency on the part of the NDS;
- the available material was sufficient to justify the conclusion that transferees were at a real risk of mistreatment in detention.
- We pause here to reiterate that, on most operations, TF81 partnered with the CRU. The CRU was a specialist police unit and had no power to prosecute offences. Accordingly, under Afghan law, the CRU could only detain a person they had arrested for 72 hours, after which they had to either hand over the detainee to a prosecutor for prosecution or release the person. We understand that the CRU had in practice been required to release some of those arrested because time expired. In addition, some of those the CRU transferred to Afghan prosecution authorities were later released because there was insufficient admissible evidence to justify a prosecution. In light of these difficulties, TF81 sometimes wished to involve the NDS on operations against high-value targets to make arrests, as NDS personnel were, in general, better trained, more competent and better able to handle high-value targets. Moreover, the NDS were able to prosecute certain offences. As we describe in chapter 11, NDS personnel, along with Afghan National Police personnel, participated in the operation to capture and detain Qari Miraj. He was not taken to NDS 17, but to another NDS facility in Kabul, NDS 90, which was capable of holding high-value detainees suspected of serious offences. (NDS 17 and NDS 90 were in the same compound and detainees were transferred between the two facilities from time to time.)
- The Evans case raised immediate questions for New Zealand. Steps were taken to find out what, if anything, should be done in response to it. Parliament’s Foreign Affairs, Defence and Trade Select Committee considered New Zealand’s work in Afghanistan. The then Director of Defence Legal Services, Brigadier Kevin Riordan, briefed the Chief of Defence Force. His advice was that arrest warrants were issued by Afghan authorities, and that New Zealand had no legal power to conduct the arrests or to interfere with the Afghan judicial system. While Brigadier Riordan acknowledged that the CRU could transfer people to the NDS and that New Zealand did not have specific oversight after that point, he explained that the ICRC had access to detainees, and would likely inform New Zealand of any general concerns about detention conditions.
- Detention issues continued to engage media attention and ministers responded to further questions in the House. On 16 August 2010, Dr Mapp was interviewed by Radio New Zealand. Following questions on the appropriateness of the distinction between detainee categories, he said that one could not rule out the possibility that detainees had been tortured and he was seeking further reports from the Chief of Defence Force and the Director of Defence Legal Services. Around the same time, media reports referred to an Official Information Act response from NZDF to the Sunday Star Times stating that NZSAS personnel had been “in the vicinity” when persons were arrested by Afghan forces, but that NZSAS members had not detained anyone or assisted in detentions by Afghan forces. Mr Key accepted NZDF’s position, stating, “If Jerry Mateparae’s advice is that they’re not involved in the arrests, they’re not involved in the arrests”.
- Dr Mapp and Mr McCully instructed officials to provide advice on this issue. MFAT considered that the risk of legal challenge could be minimised (but not eliminated) by—so far as possible—continuing to ensure that Afghan authorities were responsible for arrests/detentions, rather than New Zealand forces. They also noted that Evans did not expressly deal with partnered operations. On 18 August 2010, MFAT submitted a briefing to Mr McCully, for referral to Dr Mapp and the Prime Minister. They noted procedural improvements that were being developed and said that New Zealand’s legal obligations “only extend to individuals detained by New Zealand forces”.
- As noted in chapter 3, Dr Mapp and the Chief of Defence Force visited Afghanistan from 18 to 22 August 2010. During that visit, Dr Mapp met with Afghan counterparts to discuss his concerns about the treatment of detainees by the NDS. He considered that even if TF81 was not the detaining authority on partnered operations, New Zealand had a moral, and arguably a legal, responsibility to be seen to have taken reasonable steps to ascertain that detainees’ human rights were respected while in detention.
- It appears that Dr Mapp was encouraged by what he was told, which was that conditions in NDS facilities had improved substantially. Dr Mapp also met with two local representatives of a reputable independent organisation to discuss detention issues. Dr Mapp described the discussions as “robust”. He explained TF81’s partnered operations as he understood them. A contemporaneous note prepared by a New Zealand official records that one of the representatives of the organisation told Dr Mapp that if New Zealand had taken a substantive role in partnered operations, such as planning an operation or supporting an arrest, it incurred at least some obligations towards ensuring the humane treatment of those detained. From the note, it appears that New Zealand understood that the representative’s observations did not suggest that New Zealand incurred the full range of relevant legal obligations. However, in a subsequent conversation with an NZDF officer, the other representative of the organisation who had been at the meeting said that, in fact, the first representative had expressed the view that if TF81 personnel took biometric data from someone detained by Afghan personnel, the detainee would be in New Zealand’s custody for the period of the processing and would be “transferred” back to Afghan authority when the processing was completed. On 23 August, Dr Mapp annotated the MFAT briefing document of 18 August with a note that a detailed opinion from a senior lawyer at Crown Law was required.
- After Dr Mapp’s visit, it was decided that New Zealand would join an embassy working group on detainees and would engage with the NDS on detention issues, through New Zealand’s Ambassador to Afghanistan. The Ambassador did not take immediate steps however, as a deployed New Zealand Security Intelligence Service (NZSIS) officer in Kabul warned this approach could damage the relationship with the NDS. Instead, on 15 September the NZSIS officer met with NDS personnel and reported they were “cooperative and friendly” and willing to consider questions from New Zealand. The NDS also said they were prepared to show the officer their Detention Centre. In the end, time passed and MFAT provided no follow-up questions to be put to the NDS. The NZSIS officer met with NDS personnel again in early November and, following that meeting, asked the Ambassador whether New Zealand had any questions for the NDS. The Ambassador said that it “might be best to let sleeping dogs lie on that issue”. At that stage, the officer still intended to visit the NDS Detention Centre, although it is not clear to us whether that visit in fact occurred.
NZDF’s legal advice
- In September 2010, Brigadier Riordan finalised his formal legal opinion on the question of whether the support given by NZDF personnel in partnered operations meant that New Zealand and/or members of NZDF were complicit in any subsequent torture of detainees. In the opinion, Brigadier Riordan addressed the question of principle whether, given the human rights record of the NDS, the mere fact that a person was left in its control gave rise to a real risk that they would suffer torture or mistreatment, with the result that New Zealand would face legal risk. Given that New Zealand’s international obligations were engaged, Brigadier Riordan recommended that his opinion be passed to the Solicitor-General for review.
- In his opinion, Brigadier Riordan acknowledged that “a small number” of persons arrested by the CRU in partnered operations had been transferred to the NDS facility in Kabul. He noted that while operations involving direct combat against insurgents were conducted under the Law of Armed Conflict, much of the NZSAS’s role in Kabul was in support of law enforcement tasks rather than armed conflict activities. He went on to emphasise the NZSAS’s mentoring role in relation to the CRU and said:
NZSAS members do not take a leading role in the active part of the operation themselves although they will sometimes be in close support, provide certain technical capabilities, and assist with the recording of names and other personal information of those detained.
- Later in the opinion, Brigadier Riordan discussed the ISAF Detention Operations and Notification Directive dated 13 April 2010, which he described as the first ISAF document to address detentions effected by Afghan forces in ISAF-partnered operations. He noted that the NZSAS had complied with this Directive and had supplied ISAF with information relating to all CRU detentions “in which they have been involved or have been in their vicinity”.
- Brigadier Riordan then discussed the law relating to torture, the obligation of non-refoulement and the concept of complicity under international and national law. He also stated that conditions in NDS detention facilities had improved substantially. Ultimately, Brigadier Riordan advised that he did not consider that NZDF’s involvement in partnered operations was sufficient to amount to complicity in any subsequent torture of a detainee.
- Brigadier Riordan did, however, discuss the view that there was a moral (and arguably a legal) duty to take reasonable steps to ascertain that the human rights of persons detained in partnered activities were respected. Having noted that the “most robust and legally justifiable measure” would be to conduct inspections and monitoring, Brigadier Riordan discussed how that might be carried out, acknowledging that before anything could be done, it would be necessary to negotiate a suitable arrangement with the Afghan Government. If inspection and monitoring was not possible, he suggested a more limited alternative, which involved an enhanced regime of providing information in relation to persons detained on partnered operations, together with further mentoring and support directed at enhancing the rule of law.
- MFAT received the opinion and noted that it pointed to a possible moral imperative to carry out or explore options for detention monitoring and that this would have implications for MFAT.
- In a briefing to the Minister on 16 September 2010, the Chief of Defence Force confirmed that the legal advice he had received said that the partnering arrangements between NZDF and the CRU did not amount to complicity in torture. He also advised that no New Zealander had any role in the decision to transfer detainees to the NDS; that New Zealand had no obligation, right or physical ability to monitor detainees transferred by the CRU to the NDS; and that to assert a right to do so would amount to an infringement of Afghan sovereignty.
- The Chief of Defence Force also noted that a further important and complex aspect was the existence of a moral imperative for New Zealand to take steps to ascertain that the human rights of persons arrested by the CRU were protected and to decide how this should be done. He requested further advice on potential measures, including prisoner monitoring. He advised that monitoring detainees from partnered operations would require separate arrangements and the difficulty of negotiating the necessary measures “should not be underestimated.” He recommended that the Minister engage with the Minister of Foreign Affairs to secure his views. He noted at the same time that Brigadier Riordan’s legal advice had been sent to the Solicitor-General for confirmation.
The Solicitor-General’s legal opinion
- On 2 November 2010 the Solicitor-General provided a detailed opinion on New Zealand’s obligations in respect of persons detained in multinational operations. The essential feature of the Solicitor-General’s opinion was to confirm the view of NZDF and MFAT that the “two category” approach to the legal obligations in respect of detainees was appropriate. Persons detained by NZDF personnel could only be transferred to Afghan authorities if they did not face a real risk of torture in Afghan custody; moreover, any detainees transferred would have to be subject to a monitoring regime. By contrast, New Zealand’s non-refoulement and related obligations did not apply to persons arrested by Afghan personnel in Afghan-partnered operations. As a consequence, New Zealand had no duty or right to monitor such people. In essence, the message was “the current circumstances of New Zealand “partnering” operations in Afghanistan do not give rise to liability either through individual or state complicity in torture or through breach of the duty of non-refoulement of people at risk of torture.”
- The Solicitor-General considered the point discussed in Brigadier Riordan’s opinion that there was a moral, if not a legal, duty to take reasonable steps to ascertain that the human rights of persons detained on partnered operations were respected. He examined the possible bases for such a duty. First, the Solicitor-General accepted that there was a duty of non-complicity, the effect of which was that New Zealand had to ensure that it did not provide assistance to Afghan personnel where it was known, or ought to be known, that the assistance provided “sufficiently direct support” for acts of torture by Afghan authorities. As New Zealand’s involvement in partnered operations was less direct than it was where NZDF personnel captured people, the duty of non-complicity arose at a systemic level. It required New Zealand to take steps to deter torture by Afghan authorities, gather information about the practices of Afghan personnel and institutions, and, if circumstances changed, restrict or withdraw its cooperation until matters were remedied.
- Second, the Solicitor-General recognised that the circumstances of some partnered operations might be such as to engage the law of non-international armed conflict and its associated obligations. He noted that the duty applicable to international armed conflict to ensure respect for Law of Armed Conflict standards appeared to apply also in non-international armed conflicts as a rule of customary international law. He described the content of the obligation as being to exert influence, to the degree possible, to stop violations of International Humanitarian Law, which might include steps such as applying diplomatic pressure or withdrawing cooperation or assistance.
- Third, the Solicitor-General noted that the possibility of developments in relation to the obligation to prevent torture, along the lines of the “obligation to prevent” under the Genocide Convention as interpreted by the International Court of Justice in the Bosnian Genocide case. He also drew attention to the Committee against Torture’s view that states that become aware of alleged acts of torture committed by others in the course of joint operations are obliged to report and seek investigations of those allegations.
- The upshot was that the Solicitor-General concluded that New Zealand could, in providing assistance to Afghan personnel in law enforcement operations, become complicit at international law in any subsequent torture or mistreatment by Afghan authorities of people detained in partnered operations if New Zealand personnel became aware, or ought to have become aware though normal diligence (that is, if they had constructive knowledge), of an intention to torture detainees. He said that, to avoid the potential for complicity, it was necessary to:
- maintain agreements with Afghan authorities that human rights protections would be observed;
- continue to obtain credible assurances from Afghan authorities that such protections were met in practice;
- undertake concerted information-gathering by New Zealand personnel on Afghan practices; and
- withdraw or restrict cooperation from relevant Afghan partner forces if New Zealand personnel became aware that detainees taken by Afghan forces in partnered operations with New Zealand forces had been tortured, until that risk could be addressed.
- Significantly, and contrary to Brigadier Riordan’s approach, Crown Law advised that to undertake detention monitoring in relation to individual detainees from partnered operations would expose New Zealand to legal risk if torture were alleged or discovered during visits. This was because the Solicitor-General considered that there was no legal obligation to undertake individual monitoring and it posed practical problems, particularly because NZDF had no legal power to intervene to protect detainees if it did learn that something was amiss.
- When consulted on the final draft, MFAT preferred the Crown Law view to that of Brigadier Riordan. While Crown Law took a narrower view of New Zealand’s obligations than Brigadier Riordan in key respects, MFAT nevertheless noted that the resource implications of a general obligation to gather information would need to be considered.
- Before we move on to describe Operation Yamaha and subsequent relevant developments in chapter 11, we note that the brief overview of the law set out earlier in this chapter highlights the fundamental nature of the prohibition of torture and mistreatment of detainees and the associated requirement for minimum standards of treatment of detainees. Its fundamental nature is such that states should not take a minimalist approach towards the interpretation and application of their obligations. Where doubt exists as to the full scope of an obligation, or the relationship between obligations, states should adopt the approach (whether as a matter of law or policy) which affords the greatest protection to the individual (a pro homine approach).
- We also note that Sir Kenneth Keith’s point about states having an obligation under Common Article 1 to “ensure respect” for the prohibitions and obligations contained in Common Article 3 is, in effect, recognised in the opinions of Brigadier Riordan and the Solicitor-General:
- Brigadier Riordan considered that New Zealand had a moral (and arguably a legal) duty to take reasonable steps to ascertain that the human rights of persons detained in partnered activities were respected. As noted at paragraph , the Chief of Defence Force raised this issue with the Minister of Defence, seeking further guidance.
- The Solicitor-General referred to a “duty of non-complicity” in respect of partnered operations, which arose at a systemic level and required New Zealand to gather information about the practices of Afghan personnel and institutions in relation to detention and respond if problems were discovered.
Further, as the foregoing outline of the law shows, the preventive obligations arising from Common Articles 1 and 3 overlap with preventive obligations contained in other sources of law.