Graham Kennedy: General Debate 
Text is incorporated into the Bound Volume 
Graham Kennedy: General Debate 
[Sitting date: 18 August 2010. Volume:665;Page:13240. Text is incorporated into the Bound Volume.] 
Dr KENNEDY GRAHAM (Green) 
: 
 I rise to challenge the Government to maintain the dignity and honour of the Crown in respect of the actions of the SAS in Afghanistan. Reports that the SAS may be witnessing the handing over of detainees to the Afghan National Directorate of Security raised serious concerns as to whether New Zealand is violating its obligations in international law. 
This matter goes beyond purely State responsibility. If those legal obligations are violated and if they have been translated into New Zealand domestic law—and they have—our individual soldiers may be guilty of criminal misconduct in our courts as a result of their action in Afghanistan. Because of our adherence to the International Criminal Court statute and the Geneva conventions New Zealand nationals are subject to criminal liability for any acts of genocide war crimes crimes against humanity and inhumane treatment of prisoners. As a party to the Geneva conventions—in particular to Common Article 3—New Zealanders must apply humane treatment to all persons in enemy hands. We are specifically prohibited from murder mutilation torture and cruel humiliating or degrading treatment. There may be prima facie evidence that our SAS soldiers are violating these obligations and they may be individually accountable in New Zealand criminal law. 
This is not the first time such suspicions have been raised. In 2002 our SAS troops were involved in actions where over 50 individuals were detained in order to capture Taliban and al-Qaeda suspects believed to be among them. The previous Government addressed these concerns in 2007. According to the then foreign Minister Phil Goff “The NZDF understands that no person who has been held even temporarily in New Zealand custody is currently in the hands of the United States or other nations represented in the international forces.” That statement is characteristic of Government statements on such morally and legally sensitive issues. Its significance lies more in what it does not say than in what it does say. It did not identify the dates on which such detentions occurred and it did not discount the possibility of coalition forces having held such detainees at any time before February 2007 or provide information on the manner of treatment during any such detention. 
The Minister also said: “The Chief of Defence has put in place procedures for the notification of the International Committee of the Red Cross of the fact that persons have been captured and/or transferred to another power … New Zealand has from an early stage made clear our expectation that all detainees would be treated humanely and in accordance with international law.” That statement is almost meaningless. Conveying an expectation does not constitute a verifiable assurance that an illegal action has not occurred or may not occur in the future. Statements of expectation of another party’s behaviour do not absolve one of criminal responsibility. 
Three years later this National Government is also dissembling. Yesterday the Minister of Defence acknowledged that the SAS worked with the Afghan Crisis Response Unit to capture insurgents and that it was likely they were being transferred to the National Directorate of Security. At question time yesterday the Minister of Foreign Affairs assured this country that “appropriate steps” will be taken and “relevant inquiries” will be made in respect of SAS operations in which detainees have been handed to the National Directorate of Security. Yet true to form the Prime Minister blandly assured the public not to worry. The SAS he said yesterday was not involved in the torture of prisoners and where the SAS worked alongside the Afghan unit it was not the detaining force. In that instance he said it was not our responsibility when it came to those people who were detained. 
I tell him that that is completely wrong. It is astonishing that the Prime Minister has such an erroneous knowledge of the international obligations of the country he purports to lead. I say to the Prime Minister that if our troops jointly capture people we are not absolved of responsibility for their humane treatment simply because our soldiers do not lay hands directly upon them. The Prime Minister has the obligation under the Geneva conventions to ensure that those who do the act of detaining do not torture. An international act can consist of actions but also of omission—the recognised doctrine of positive obligation. If we do not take steps to ensure that we can be criminally liable in international law and in New Zealand domestic law. We have not done those things and the Prime Minister has the temerity to say that we are not responsible. 
I call on the Prime Minister to get his knowledge of the law right and on his Government to immediately suspend operations with any military units in Afghanistan that hand over detainees to the National Directorate of Security.