EHCR decision on extraterritoriality has major implications for SAS in Afghanistan
As Well Bennett reports over on his blog Lawfare: Hard National Security Choices, the Al-Skeini and Others v Secretary of State for Defence has serious implications for the legality of jurisdiction over prisoners of war. This decision, by proxy, also means that New Zealand is likely falling foul of international law in our treatment of prisoners in Afghanistan.
The allegations of handing over prisoners for torture and the possibility that it might contravene international law have been steadily raised by the Green Party over the last few months, but have largely fallen on deaf ears to the New Zealand public. In an article for Metro, journalist Jon Stephenson detailed the allegations of the practices he witnessed. As a press release for Metro magazine chronicled:
According to Metro, the SAS has been handing over prisoners since they first arrived in Afghanistan in 2001, even though they knew there was a serious risk of torture.
The magazine reveals, for the first time, that the SAS led a mission in May 2002 which resulted in the deaths of at least three people, including a small child, and the arrest and torture of many others. It gives names, dates and other details, and carries interview quotes from several of the people who were there. They include Afghan villagers and SAS troopers.
The prisoners included old men and boys. Some were badly beaten – in one case so severely the man was disabled and is still in a wheelchair. They were bound and hooded, and while in that state were subjected to dogs rushing at them and threatening to attack them. They were also stripped naked and forced to parade before US troops, forced to run on their knees, tied up in stress positions and held without sleep or food.
The men insisted they were innocent, and were later released without charge.The allegations caused an uproar and then steadily fell out of the public, who seemed to be swayed by Key's argument of his interpretation that Stephenson impersonated Duncan Garner in a text message. Keith Locke has repeatedly called for an inquiry into our soldiers, who have been there since 2001 and whether their actions comply with international law. Serious discussion of Afghanistan has been replaced more recently by articles that trivialize our involvement, such as the one that considered whether our SAS had the ability to be catwalk models.
For those who follow international rights law, Key's claims were tenuous and weak, and based on the Evans case in the UK, which was one case ruling that it was outside of the jurisdiction and therefore did not contradict the Convention for the Protection of Human Rights and Fundamental Freedoms. This case has recently been overturned by the EHCR who found that the jurisdiction of treaties on human rights did not end at UK borders:
I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.
In sum, the British were found guilty of failing to adequately investigate their own human rights violations, and outsourcing violence was not seen as an option for avoiding international treaties. Sound familiar? This judgment paves the way for international prosecutors and means that Key must begin listening to Locke's calls for an inquiry. There is now a strong precedent set that handing over prisoners for torture still means that they are under our jurisdiction, and that just because we are overseas we cannot circumvent the human rights practices of the nation we are from.