In this the seventh episode of A View from Afar podcast for 2023 political scientist Dr Paul Buchanan and Selwyn Manning examine the strengths and weaknesses of democracy around the world.

In particular Paul and Selwyn consider how and why democracy in many countries around the world is on the slide.

They examine the causes of democratic backsliding and also test why the erosion of high democratic ideas have, in many cases, popular support.

First, Paul offers a context, and defines democratic backsliding. He identifies the countries that are decisively eroding their own democracies of principles that were once embraced by both power elites and citizenry.

The Questions include:

• Why are we seeing more democratic backsliding in recent times?
• Is it just a political phenomenon or does it extend beyond the political sphere?
• Where has democratic backsliding been most evident?
• What do Chile, Guatemala, Israel and Thailand have in common when it comes to backsliding?
• What is occurring in the United States?
• If a democracy “backslides,” what does it slide into?

INTERACTION WHILE LIVE:

Paul and Selwyn encourage their live audience to interact while they are live with questions and comments.

To interact during the live recordings of this podcast, go to Youtube.com/c/EveningReport/

Remember to subscribe to the channel.

For the on-demand audience, you can also keep the conversation going on this debate by clicking on one of the social media channels below:

• Youtube.com/c/EveningReport/
• Facebook.com/selwyn.manning
• Twitter.com/Selwyn_Manning

RECOGNITION: The MIL Network’s podcast A View from Afar was Nominated as a Top Defence Security Podcast by Threat.Technology – a London-based cyber security news publication. Threat.Technology placed A View from Afar at 9th in its 20 Best Defence Security Podcasts of 2021 category.

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Palestine has lost a champion of the struggle against Israeli apartheid with the death of South African Archbishop Desmond Tutu, aged 90.

Tutu is known internationally as a leader of the struggle against white minority rule in South Africa and won the Nobel Peace Prize for his work reconciling South Africans after the end of its brutal apartheid regime.

He was the moral conscience of the country and sometimes highly critical of South Africa’s African National Congress (ANC)-led government, saying that some in the ANC leadership had stopped the apartheid gravy train “just long enough to jump on”.

Relationship with New Zealand
Archbishop Tutu was a warm friend of New Zealand and many New Zealanders across our political divides will feel a deep sadness at his passing.

In the early 1980s when Tutu faced court action from the South African authorities, a delegation of church leaders from New Zealand, led by former Anglican Archbishop of Aotearoa New Zealand, the late Sir Paul Reeves, went to South Africa in an act of international solidarity.

This was deeply appreciated by Archbishop Tutu.

During the protests against the 1981 Springbok rugby tour, one of the three Auckland protest squads was called Tutu Squad in his honour.

Later he came to New Zealand and at one point gave evidence as an expert witness on apartheid during a trial arising from 1981 tour protests.

Such was his charisma, his mana and the deep respect he commanded everywhere that when he was called to the witness stand by Hone Harawira, the entire courtroom stood.

In this case all the activists on trial were acquitted after the jury deliberated.

Support for Palestinians
Tutu was outspoken against injustices all around the world and in particular he condemned the racist policies faced by Palestinians from the Israeli regime. He frequently described Israel’s treatment of Palestinians as “worse” than that suffered by black South Africans.

He said international solidarity with Palestinians such as through BDS (Boycott, Divestment and Sanctions) was critical to ending injustices like apartheid.

“I have witnessed the racially segregated roads and housing in the Holy Land that reminded me so much of the conditions we experienced in South Africa under apartheid,” said Tutu.

“We could not have achieved our democracy without the help of people around the world, who through… non-violent means, such as boycotts and disinvestment, encouraged their governments and other corporate actors to reverse decades-long support for the apartheid regime.”

In relation to Israeli policies towards Palestinians, Tutu said the world should “call it apartheid and boycott!”

In honouring Tutu’s legacy, freedom-loving people around the world should follow his advice and spurn Israel till everyone living in historic Palestine has equal rights.

Aotearoa New Zealand, the Palestinian struggle and the world have lost a dear friend and a great humanitarian.

John Minto is national chair of Palestine Solidarity Network Aotearoa (PSNA) and former national chair of HART (Halt all Racist Tours).

Article by AsiaPacificReport.nz

Human rights activist and lawyer Veronica Koman says the Indonesian government has asked her to return scholarship money amounting to 773 million rupiah (about US$70,000) which she received to undergo her master’s degree in Australia in 2016, reports CNN Indonesia.

According to Vero – as she is known – this financial punishment is a form of pressure by the government so that she stops speaking out about and advocating the issue of human rights (HAM) in Papua.

“The Indonesian government is applying this financial punishment as the latest attempt to pressure me into stopping my advocacy for HAM in Papua,” she said in a written release received by CNN Indonesia.

READ MORE: Veronica Koman featured in a Frontline documentary report

Koman said that this is the fourth time the government had tried to punish her financially after earlier receiving other sanctions and punishments.

Koman said she was a victim of government “criminalisation” because of the Papuan human rights advocacy work she had done.

Prior to this the government also tried to pressure Interpol into issuing a Red Notice for her arrest and then threatening to cancel her passport.

“Now the government is forcing me to return my scholarship [money] which was given to me in September 2016. The total amount they’re asking for is 773,876,918 rupiah,” said Koman.

Financial punishment
Koman explained that the government was applying this financial punishment through the Endowment Fund for Education (LPDP) which is under the Ministry of Finance.

It is claimed that she failed to fulfill the requirement that she return to Indonesia after completing her period of study.

Yet, Koman claims that she returned to Indonesia in 2018 after graduating from her Master of Laws programme at the Australian National University. At the time she went to the West Papua provincial capital of Jayapura to continue her advocacy work related to human rights issues in the Land of the Bird of Paradise, as Papua is known.

A year later, in March 2019, she also spoke at a United Nations forum held in Switzerland, after which she again returned to Indonesia. Two months later Koman said that she provided pro-bono legal aid to Papuan activists at three different trials in Timika, Papua.

Koman said that she was only included on the list of wanted people (DPO) in August 2019. At the time, she was making use of a three-month visa and had been in Australia to attend a graduation ceremony since July 2019.

“When I was in Australia in August 2019, I was summoned by the Indonesian police after which I was placed on the wanted persons list in September 2019”, she said.

“Between August and September 2019 I continued to speak out against the narrative being created by the authorities when the internet was blocked in Papua, namely by continuing to post photographs and videos of thousands of Papuan who were still taking to the streets to protest racism and demand a referendum on self-determination,” she said.

At that time, the decision to remain in Australia, she said, was not because she did not want to return to Indonesia.

Death and rape threats
To this day, not only has she has frequently received death and rape threats, but has also become the target of an online misinformation, a government sponsored campaign exposed in a Reuters news service investigation.

In relation to the financial punishment, Koman said that the Finance Ministry (Kemenkeu) is ignoring the fact that she returned to Indonesia after graduating from her studies. According to Koman, the government is also ignoring the fact that she has shown a willingness to return to Indonesia if and when the threats stop.

“In a letter, I asked the Kemenkeu, specifically [Finance] Minister Sri Mulyani to act fairly and be neutral in looking at this problem so they don’t become one of the state institutions that wants to punish me because of my capacity as a public lawyer who defends HAM in Papua,” she said.

As of this article being posted, the Finance Ministry has failed to respond to questions related to Koman. Finance Ministry communication bureau chief Puspa Rahayu has not responded to SMS messages or phone calls from CNN Indonesia asking for an explanation from the department.

Translated by James Balowski for Indoleft News. The original title of the article was “Veronica Koman Diminta Kembalikan Uang Beasiswa Rp773 Juta“.

Article by AsiaPacificReport.nz

Pacific Media Centre Newsdesk

Human rights violations in West Papua are to be given priority at the Pacific Islands Forum Leaders Meeting in Tuvalu next week.

According to RNZ Pacific, the forum’s Foreign Ministers have pushed for the alleged human rights abuses to be included on the forum agenda, citing the reported escalation of violence in recent months.

The decision came through a heated debate at a senior officials meeting in Suva last week, where Vanuatu, a key regional supporter of West Papua pushed for the issue to be included in the forum.

No Pacific Island country opposed the inclusion apart from Australia, a strong Indonesian ally.

Listen: Pacific Forum eyes deadline on West Papua matter – Dateline Pacific

RNZ Pacific’s Johnny Blades said the shift in regional dynamics could be due to new Foreign Ministers in both Papua New Guinea and Fiji but also as a result of third party testimony to the worsening situation in West Papua from the likes of the UN Humans Rights Commission and the World Council of Churches.

“The Pacific governments see that the human rights situation in Papua is actually getting worse,” he said.

“In recent times it’s been backed by statements from third party representation.”

The ongoing conflict between Indonesian military and pro-independence forces in parts of the region has resulted in hundreds of casualties and the displacement of several thousand civilians.

Due to restrictions on foreign aid, there have been reports of significant shortages in food and healthcare resulting in death from famine and disease.

The PIF agenda will also push for the Indonesian government to make good on its invitation to the UN Human Rights Commissioner to visit West Papua, with a deadline for a report set before the next PIF Leaders Meeting in 2020.

Pacific Island leaders are also keen to focus heavily on climate change rather than China when they meet next week, reports AFP.

Despite China’s growing influence in the region which has seen strong political response from both Australia and the US, Pacific Island leaders have insisted that such geopolitical concerns should not eclipse the more pressing issue of climate change.

PIF secretary-general Dame Meg Taylor said the forum was at a pivotal moment in its history.

“While we are the subject of the geopolitical manoeuvring and strategies of others, the Blue Pacific collective remains focused on charting our own destiny,” she said.

In a message to Australia’s government, Tuvalu Prime Minister Enele Sopoaga has warned Canberra’s step-up strategy will fail unless it finally takes meaningful action to address the issue.

“They know very well that we will not be happy as a partner, to move forward, unless they are serious,” he said.

This follows the Pacific leaders declaration of a climate crisis last week with Fiji’s Prime Minster Frank Bainimarama saying that the region needed greater commitments from its bigger neighbours, hinting at Australia and New Zealand.

At last year’s forum, Australia was exposed as having attempted to water-down a resolution that declared climate change the region’s greatest security threat.

“We shouldn’t accept anything less than concrete commitments to curb greenhouse gas emissions in line with the most ambitious aspirations of the Paris Agreement,” Bainimarama said.

“We cannot allow climate commitments to be watered down at a meeting hosted in a nation whose very existence is threatened by the rising waters lapping at its shores.”

The PIF will run from the 13th to the 16th of August.

Article by AsiaPacificReport.nz

New Zealand’s military conduct in its longest running war ever – in Afghanistan – is finally getting an official government inquiry. This has the real potential to open up a can of worms. So far, the announcement of the Government’s inquiry into Operation Burnham has been met with a great diversity of reactions. Nicky Hager and Jon Stephenson, and their supporters, have been “over the moon”, as Hager put it. But this doesn’t mean they don’t have concerns about the inquiry.

Validity of inquiry disputed Not everyone is happy to see the New Zealand defence forces being made accountable for the SAS raid in Afghanistan. Newstalk ZB’s Tim Dower represents one strand of opinion in his argument that the military should never be criticised or investigated – see his column condemning the new inquiry: When it comes to military operations, I’m taking the word of our guys. Dower makes the case that New Zealand soldiers were in Afghanistan to help the locals, and the chaotic nature of the conflict there meant “our guys were at a disadvantage from the get-go.” He goes so far as to say that, even if New Zealand troops killed Afghans in a botched raid, “I’d rather it was one of them – even a civilian – than one of ours.” Newstalk ZB’s political editor Barry Soper says that “in reality this was a firefight and unfortunately some innocents lost their lives, which tragically happens in war zones” – see: Little doubt in what SAS inquiry will come up with. He expects the defence forces to be exonerated, on the simple basis that: “the allied forces were under fire and responded”. Soper regards the inquiry as a “waste of money”, saying “surely the money would have been better spent on the mould and leaks at Middlemore Hospital.” This is a similar line to that being run by the National Party. It’s defence spokesperson, Mark Mitchell, has come out strongly against the inquiry, reiterating that when National was in office it carefully considered the evidence and was in no doubt an inquiry wasn’t needed. You can see his very good ten-minute interview with Breakfast TV’s Jack Tame here: Inquiry into deadly NZ-led Afghanistan raid labelled a waste of taxypers’ money by National. The New Zealand Defence Forces bosses remain confident they will be cleared by the inquiry. The head of the defence force, Lieutenant General Tim Keating, has emailed his staff to say that the “conduct of the NZSAS ground forces was exemplary” and the evidence he has will clear “the soldiers of any wrongdoing”. This email was leaked to Stuff journalists – see Laura Walters’ Over three hours of aerial footage of Afghanistan raid exists, NZDF says. This reports that “Keating also said there was ‘compelling material’, which could not be publicly released, including intelligence reports and video footage, which supported what NZDF had publicly said about the raid.” How well has the inquiry been set up? How any government inquiry is set up obviously has a significant impact on what is revealed, and whether justice is served. That’s why so much attention was paid to the terms of reference provided to the inquiry. Supporters of Hager and Stephenson had worried that these terms of reference would be too narrow, or that not enough resources or independence would be supplied by the Government. Such fears appear to have been unfounded. Both Hager and Stephenson have expressed their support for how the inquiry has been established. Stephenson has said, “It appears that the terms of reference are sufficiently broad to enable Sir Geoffrey Palmer and Sir Terence Arnold to ask the questions that I believe need to be asked”, and “I’m pleased that the issue of NZ involvement in transferring detainees to the Afghan secret police who are well known to torture detainees is going to be examined” – see Jo Moir and Henry Cooke’s Author Jon Stephenson pleased with inquiry, but queries Govt ‘muddying waters’. This article also reports Stephenson’s belief that witnesses would be dealt with appropriately: “He said the fact that the inquiry could take evidence under oath in secret and protect the identity of witnesses would mean his sources would be comfortable – particularly the ones who were serving at the time.” According to that article, the main issues that the terms of reference include are the following: “The allegations of civilian deaths. The allegation that NZDF knowingly transferred a man to a prison where he would be tortured. The allegation that soldiers returned to the valley to destroy homes on purpose.” There is one further, less publicised, focus of the inquiry, that has the potential to be even more explosive than the Hit and Run allegations: an examination of whether New Zealand soldiers were involved in assassination missions on behalf of other countries. Here are the terms of reference relating to this: “7.9 Separate from the Operation, whether the rules of engagement, or any version of them authorised the pre-determined and offensive use of lethal force against specified individuals (other than in the course of direct battle) and if so, whether this was or should have been a[aren’t to (a) NZDF who approved the relevant version(s) and (b) responsible Ministers.” Blogger No Right Turn has picked up on this, saying this “is a new and unpleasant issue, and highlights the dangers of letting foreigners decide when and in what circumstances NZ soldiers are allowed to kill” – see: Finally. He adds: “we know that many of NZDF’s allies (including the USA, UK and Australia) are not moral countries and their moral values around military action and assassination are deeply at odds with those of the New Zealand public (and with international law). It’s not clear whether there’s any allegation that NZDF soldiers have been involved in assassinations, but if they have, then they may have committed crimes under New Zealand and international law, for which they will need to be prosecuted.” Investigative journalists Eugene Bingham and Paula Penfold have worked on important stories about the 2012 Battle of Baghak, in which two New Zealand soldiers were killed in action. This controversy has been specifically excluded by the Government, which claims it has already been dealt with in an Army Court of Inquiry. Bingham and Penfold dispute this, and argue the inquiry needs to be considerably wider in scoop – see: Missing the target: The Government inquiry into Afghanistan raid. The journalists give kudos to the Government for establishing the new inquiry, but say “the specific concern over civilian casualties in Operation Burnham represents only a fraction of the problems with culture and lack of accountability at the top of Defence, particularly regarding the decade-long deployment to Afghanistan. Those problems run very, very deep. A bold Government would have taken on these issues. Instead, it has wilfully turned a blind eye.” They argue an inquiry needs to look broadly at the NZDF’s “lack of transparency and accountability. Of a culture of cover-up and obfuscation. And at the heart of it all are questions raised by families of fallen New Zealand soldiers in The Valley: why were we even in Afghanistan in the first place? What were we trying to achieve?” Muddying the waters In announcing the inquiry, the Attorney-General David Parker commented that he had been shown a US military video of the raid, and this “does not seem to me to corroborate some key aspects of the book Hit & Run”. Parker stated: “The footage suggests that there was a group of armed individuals in the village” and that this contradicted how Hager and Stephenson had portrayed the village as “non-threatening”. This is all best covered by Herald reporters Isaac Davidson, Lucy Bennett, Claire Trevett and David Fisher – see: Inquiry already prejudiced, say Hit & Run authors. The first problem with Parker’s actions is that he has refused to give further details, and has not secured the footage for the inquiry. Jon Stephenson believes Parker has pre-empted the actual inquiry: “In my view he’s prejudiced the inquiry and he’s provided that information without any context at all and refused to answer questions about it. He’s just muddied the waters… He’s essentially making statements that are prejudicial… Surely the professional and appropriate thing to do was to allow the inquiry to determine the facts, having heard all the evidence and render a verdict, not pre-empt that.” The must-read view on this is from Gordon Campbell, who sums up the situation like this: “at the outset of an independent government inquiry, the Attorney-General not only felt free to make unverifiable assertions about Hit & Run – but no guarantee can be given that even this august inquiry will be able to see the footage in question and draw definitive conclusions from it, either way. It seems amazing that NZDF is able to screen this footage for lobbying purposes with politicians whenever it suits NZDF to do so, while claiming that national security concerns prevent it from sharing the same information with either the public, the media, or – potentially – even with the $2 million inquiry set up to clarify the matters in dispute. As I suggested to Parker yesterday, we seem to be getting off on the wrong foot here” – see: On the Hit&Run inquiry. It opens the government up to criticism that Parker was deliberately throwing a bone to the defence forces with his reference to the video footage. After all, the Government has reportedly been under strong pressure not to hold the inquiry. Campbell’s column is also essential reading for anyone with concerns about what could go wrong with the inquiry. He points to a myriad of issues and dynamics that might allow authorities to effectively keep the lid on this particular can of worms. Finally, for satire from the past year on these issues, see my blog post, Cartoons about Hit & Run, and NZ in Afghanistan.

There’s an overlooked aspect of the New Zealand Defence Force’s account of Operation Burnham that when scrutinised suggests a possible breach of international humanitarian law and laws relating to war and armed conflict occurred on August 22, 2010 in the Tirgiran Valley, Baghlan province, Afghanistan.

According to New Zealand Defence Force’s official statements Operation Burnham ‘aimed to detain Taliban insurgent leaders who were threatening the security and stability of Bamyan Province and to disrupt their operational network’. (ref. NZDF rebuttal) We are to understand Operation Burnham’s objective was to identify, capture, or kill (should this be justified under NZDF rules of engagement), those insurgents who were named on a Joint Prioritized Effects List (JPEL) that NZDF intelligence suggested were responsible for the death of NZDF soldier Lieutenant Tim O’Donnell.

When delivering NZDF’s official account of Operation Burnham before media, Lieutenant General Tim Keating said:

“After the attack on the New Zealand Provincial Reconstruction Team (NZPRT), which killed Lieutenant Tim O’Donnell, the NZPRT operating in Bamyan Province did everything it could to reduce the target profile of our people operating up the Shakera Valley and into the north-east of Bamyan Province. “We adjusted our routine, reduced movements to an absolute minimum, maximised night driving, and minimised time on site in threat areas. “The one thing the PRT [NZPRT] couldn’t do was to have an effect on the individuals that attacked Lieutenant O’Donnell’s patrol. For the first time, the insurgents had a major success — and they were well positioned to do so again.”

For the purpose of a counter-strike, intelligence was sought and Lt. General Keating said: “We knew in a matter of days from local and International Security Assistance Force (ISAF) intelligence who had attacked our patrol [where and when Lt. O’Donnell was killed].” The intelligence specified the villages where the alleged insurgents were suspected of coming from and Lt. General Keating said: “This group had previously attacked Afghan Security Forces and elements of the German and Hungarian PRTs.” The New Zealand Government authorised permission for the Kabul-based NZSAS troops to be used in Operation Burnham. “What followed was 14 days of reliable and corroborated intelligence collection that provided confirmation and justification for subsequent actions. Based on the intelligence, deliberate and detailed planning was conducted,” Lt. General Keating said. Revenge, Keating said, was never a motivation. Rather, according to him, the concern was for the security of New Zealand’s reconstruction and security efforts in Bamyan province. As stated above, Operation Burnham’s primary objective was to identify, capture or kill Taliban insurgent leaders named in the intelligence data. We know, from the New Zealand Defence Force’s own account, Operation Burnham failed to achieve that goal.

Analysis of the NZDF Official Account The official account of events that occurred in the early hours of August 22, 2010, describe how Taliban insurgents, realising coalition forces were preparing to raid the area (marked as ‘Operation Burnham Area of Operation’ in a map (slide 3) declasified and released to media on March 27, 2017), formed a tactical maneuver using civilians (women, children and elderly) as a human shield.

Despite the official account placing this group within a building, within a small hamlet, within the area of operation, within Tirgiran Valley, there is no clear definitive official account yet given of what happened to either the civilians or the insurgents.

This appears to be an obvious void in the official record, but one that has failed so far to be scrutinised.

To follow the logic of Lt. General Tim Keating’s account (detailed below), is to discover our defence personnel, who were in charge of the ground and air operation during Operation Burnham, failed to identify what had become of those civilians (women, children, and the elderly), and also importantly the suspected insurgents who Lt. General Keating said during his briefing used the villagers as a human shield.

We know from the Chief of Defence Force’s notes as provided on March 27, 2017, that as Operation Burnham began, NZDF was in command of United States manned aircraft (including helicopters and possibly a AC-130). The aircraft were swarming above the Tirgiran Valley.

From the NZDF account an NZDF joint terminal air controller was in charge of the air attack against those NZDF had defined as insurgents. Lt. General Keating stated the alleged insurgents were armed and a NZDF commander authorised the US manned aircraft to commence firing.

Weapons-fire then began to rain down on the valley from above. Meanwhile NZSAS ground force soldiers prepared to secure their positions and to defend themselves against any potential enemy counter-attack.

Lt. General Keating stated the insurgents responded: “The insurgents, the guerrilla force, the tactic is mixed in with the civilian population, if you like, the term used is a human shield. So they use civilians as a shield.”

He added: “What occurred, is a helicopter was engaging a group of insurgents outside the village, on the outskirts of the village. During that engagement, it was noted by the ground forces there – the SAS ground forces – that some of the rounds [from the US manned aircraft] were falling short, and went into a building where it was believed there were civilians as well as armed insurgents.”

To be clear, from this account, Lt. General Keating stated a group of insurgents were being tracked, targeted, and fired upon by the US manned aircraft and under the command of a New Zealand Defence Force terminal air controller. Meanwhile, according to the NZDF record, one of the airborne helicopter’s weapon’s sights were not calibrated correctly, and, according to Lt. General Keating, 30mm projectiles went into a building where it was believed there were civilians as well as armed insurgents – remember these 30mm projectiles are capable of penetrating the side of a tank.

For accuracy, Lt. General Keating restated his account: “It is noted, the building, there were armed insurgents in there, but it is believed that there may have been civilians in the building.”

He then added: “There’s no confirmation that any casualties occurred, but there may have been.” He restated again: “There were civilians in that building.” Now, this is where the Chief of Defence Force’s account fails to further explain what occurred after that point. To summarise, the official position of the New Zealand Defence Force is:

• There were civilians in a building within the village that was fired upon by an armor piercing aircraft weapon
• That it was believed insurgents were also in that building
• That civilian casualties or deaths “may have been” or occurred inside the building.

At this juncture, we must consider whether the New Zealand Defence Force ground commanders had a responsibility to determine whether there were Taliban insurgents in the building?

And if so, whether they were the individuals listed on the JPEL list, those deemed responsible for the death of Lieutenant Tim O’Donnell?

And what of the ground commanders’ legal requirements, the duty of care with respect to civilians, were NZDF commanders on the ground or back in Kabul compelled by law to confirm the status of the civilians, whether they were injured or killed?

When asked by a journalist at the March 27, 2017 press conference: ‘If there may have been civilian casualties, why not have an inquiry to find out?’ Lt. General Keating replied: “Even if there was, as far as the New Zealand Defence Force has heard, the coalition investigation has, um, said that uh, if there were casualties, the fault of those casualties was a mechanical failure of a piece of equipment.” This reply does not appear to consider the legal requirements under:

• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 7: the obligation to provide medical assistance to all wounded, whether or not they have taken part in the armed conflict
• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 8: the obligation to search for and collect the wounded and to ensure their adequate care
• Second Protocol to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13: the obligation to protect the civilian population against dangers arising from military operations
• Armed Forces Discipline Act 1971, section 102. This section provides that the commanding officer of a person alleged to have committed an offence under that Act must initiate proceedings in the form of a charge or refer the allegation to civil authorities, unless the commanding officer considers the allegation is not well-founded. While little legal guidance is provided, it cannot be accepted that preliminary inquiries to determine whether an allegation is well-founded can be considered adequate where they fail to obtain evidence from the injured parties, determine their identities or even verify that they exist
• Rome Statute of the International Criminal Court, Article 28
• The NZDF Manual of Armed Forces Law provides that there are three types of inquiry in the NZDF: a preliminary inquiry, a court of inquiry and a command investigation. (It appears however the ISAF investigation cited by the Chief of Defence Force was not any of the above forms of inquiry).

Specifically, if you analyse Lt. General Keating’s account, the New Zealand Defence Force commanders failed to identify whether any insurgents were inside the building and whether there were dead or wounded civilians. Why was this the case? It seems reasonable to suggest, this is an abandonment of logic. It does not make sense.

We know from official NZDF documents the soldiers arrived at the scene of Operation Burnham at 0030 hours on August 22, 2010 and left at 0345 hours, that’s the official record. To clarify, the NZSAS commandos were in the area of operation for 3 hours 15 minutes.

Lt. General Keating stated, near the conclusion of the raid: “The ground force commander chose at that time that there was no longer a threat and they were leaving.”

How could that rationally be the case unless the suspected insurgents inside that building had been checked?

Was it not suspected that there were insurgents in that building? Surely the ground force commanders would be compelled to seek and identify the inhabitants of that building to see if they matched the names/descriptions on the JPEL list?

After all, the manhunt for Taliban leadership was the purpose of the raid that night. Also, logic would suggest, the people inside the building were in part civilians including women and probably children – by Lt. Keating’s account the group likely included wounded civilians and probably a dead child.

Also, it is reasonable to suggest, considering the events over those 3 hours 15 minutes, the survivors would have been crying, weeping, even howling, and the wounded would likely have been in agony.

It defies belief that the ground force commanders, and their counterparts back in Kabul, were not aware of this building, that the NZDF account states was housing suspected Taliban, and included a group of civilian victims that had been used as a human shield.

The entire area of operation specific to Operation Burnham is a skewed rectangle approximately 500 metres wide by 1 kilometre long, with an intensified operation plan focusing on two small hamlets, each approximately 50×200 metres in area [based on the scale measures of the NZDF map] – named Objective 1 and Objective 2 in the NZDF released material.

To state it simply, the official silence surrounding the above-mentioned building, and the fate of the people inside, speaks volumes. It leaves one to consider at worst whether a crime was committed by New Zealand Defence Force commanders that night – whether by failing in their duty to care for the injured they were in breach of Articles 8, 9 and 13 of the Second Protocol to the Geneva Conventions.

ADDITIONAL NOTE:
• The Statute of the International Criminal Court defines war crimes as, inter alia, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. (Ref. IHL Definition of war crimes, page 1 (pdf) – ICC Statute, Article 8 (cited in Vol. II, Ch. 44, § 3))
• ‘The Statute defines as within the scope of the law, the “launching an attack without attempting to aim properly at a military target or in such a manner as to hit civilians without any thought or care as to the likely extent of death or injury amounts to an indiscriminate attack”.
• War crimes can consist of acts or omissions. Examples of the latter include failure to provide a fair trial and failure to provide food or necessary medical care to persons in the power of the adversary.’

At best, if NZDF’s official account is to be relied upon, we are to believe the NZSAS ground commanders failed to ensure the Taliban insurgents they sought were not holed up in a building that had sustained damage from coalition force aircraft. If this assumption is incorrect, at what point had the suspected insurgents left the building?

And what had become of the civilians that had been allegedly used as a human shield? Again, the vacuum of information specific to this aspect of the official account needs to be explained, including an explanation as to why NZDF’s account remains vague after six years since Operation Burnham was conducted.

It appears reasonable to assert that this single issue, notwithstanding the irregularities of official NZDF stated ‘facts’, warrants further official and independent investigation. As it is, at this juncture, we are left to consider a series of unanswered questions that to date the New Zealand Chief of Defence Force has failed to satisfy. Here are some of them. Key Unanswered Questions:

• What were the specific definitions of an insurgent that were used by NZDF for the purposes of evaluation during Operation Burnham and for the purpose of post-operation official analysis? For example; was it deemed that anyone who was male and of a fighting age was defined to be an insurgent?
• Were NZDF soldiers fired upon by individuals (villagers or insurgents) located within the confines of the villages or surrounding area during Operation Burnham?
• Was the individual who was killed by a NZSAS soldier or NZDF personnel carrying a weapon at the time of this shooting? If so, had he fired or attempted to fire his weapon in an attempt to kill or wound NZDF personnel?
• How long in minutes were the coalition forces’ helicopters, and any other airborne craft, firing their weapons on the villages and surrounding region during Operation Burnham?
• How long in minutes were NZSAS soldiers involved in securing the operational area from real or potential insurgent attack?
• Did NZDF personnel at anytime seek to identify individuals (and their status, injured, killed, or otherwise) who were located inside or near the building that Lt. General Keating said had suffered damage from an alleged mis-aimed firing from an airborne coalition aircraft?
• Were those who were injured or killed within sight of NZDF personnel before, during, and/or after the alleged mis-aimed firing?
• How many individuals did the NZDF personnel suspect were inside the building?
• How many of these people did the NZDF personnel suspect were civilians?
• How many were suspected of being women?
• How many were suspected of being children?
• Lt. General Keating suggested that one of the individuals that may have been killed during Operation Burnham was a six year-old child. What was the gender of this child?
• Was their any attempt to identify this six year-old victim?
• Was this child Fatima, the three year-old child identified in the Hit & Run [ISBN 978 0 947503 39 0] book? If not, then who was this child?
• What actions did NZDF personnel do to exercise their duty of care obligations to the injured and to civilians?
• What reports, cautions, evaluations were written and/or submitted regarding Operation Burnham to NZDF by the NZDF legal officer who was on the ground during Operation Burnham?

The Twisting Turning Official Account – Is This Smoke and Mirrors? As a consequence of the Hit & Run book [ISBN 978 0 947503 39 0] being published, New Zealand Defence Force’s top ranking soldier, Lt. General Tim Keating admitted civilians “may have been” killed during the operation.

Up until March 27, 2017, for the past six years, New Zealand Defence Force has insisted that no civilians were killed during Operation Burnham on August 22, 2010.

But on Monday, under questioning from the media, at the March 27 press conference, Lt. General Keating stated that the NZDF’s new “official line” regarding civilian deaths was “there may have been”. He then attempted to suggest that NZDF’s previously stated position – that claims of civilian deaths were “unfounded” – was basically the same thing. “I’m not going to get cute here and say it’s a twist on words, it’s the same thing, ‘unfounded’, ‘there may have been’. The official line is that there may have been casualties,” Lt. General Keating said.

A journalist then challenged him further suggesting: “They’re different things, one means they didn’t happen and one mean might’ve done.”

Lt. General Keating then replied: “You’re right…the, the, the official line is that civilian casualties may have occurred, but not corroborated.”

When asked how many insurgents were killed, Lt. General Keating replied: “A significant number of insurgents, identified insurgents, were killed during Operation Burnham.”

When asked again how many were killed, Lt. General Keating stated: “Nine.” When asked if NZDF had the names of the insurgents that were killed, he replied: “No, we do not have names of insurgents.”

This trajectory, inching toward a truth, occurred under tight questioning by a journalist, over just a few minutes.

What further truths will become relevant to understanding what occurred that night in Khak Khuday Dad and Naik villages should a commission of inquiry be established?

The Inconsistencies – A Summary

In evaluation, it is reasonable to assert the official Government inconsistencies observed along a six-year timeline offer the appearance of a military hierarchy that has being dragged, by degrees, (mainly by the work of Jon Stephenson, an investigative journalist specialising in war and conflict reportage) into an arena where the floodlight of public interest ought to shed light on secrets long since filed into a dark place.

However, considering the above, rather than responding openly to the challenge of meeting its responsibilities to the New Zealand Minister of Defence and public, the New Zealand Defence Force appears resistant to its obligations toward open and accurate disclosure of non-classified fact.

In conclusion, if this is true, this conduct exhibited by the officials of New Zealand Defence Force and its Chief Lt. General Tim Keating is hardly a defining benchmark of ‘exemplary’ standards.

Actually, the admissions of relevant information, that is forthcoming only when lanced from the New Zealand Defence Force under questioning, offers the impression of a smoke and mirrors operation – it may appear churlish to suggest, but perhaps the post-Operation Burnham aftermath ought to be referred to as Operation Desert Road (bleak, cold, inhospitable, proceed with caution).

The public deserves to know the whole truth, not spin or part-truths – both the public interest and the national interest depends on it.

By the New Zealand Defence Force’s own account, it appears reasonable to suggest that the commanders overseeing Operation Burnham had legal obligations to civilians; that they were potentially negligent when considered against their stated rules of engagement, rules of conduct, obligations to international human rights law and international humanitarian law – negligent of their obligations to laws covering war and armed conflict, notwithstanding their obligations as representatives of the people and Government of New Zealand to observe the Bill of Rights Act.

It is also reasonable to suggest; there are significant established facts as mentioned above, as put by the New Zealand Defence Force, that require an official investigative response from the New Zealand Government.

It is also reasonable to insist that the matter of an absence of consistent fact emitting from the New Zealand Defence Force upon which a reliable opinion can be draw, adds weight to the burden on the Government to establish an inquiry into this matter.

If the New Zealand Prime Minister Bill English elects not to act then it will likely become a matter of political leadership or lack thereof.

If Bill English does not care to act on his office’s public interest obligations, then, it is reasonable to suggest he consider the empirical facts underlying this matter and the impact the matter has on New Zealand’s national interest. Should he fail to do so, this matter potentially could be argued before the International Criminal Court.

“It seems to me,” Lt. General Tim Keating stressed, “that one of the fundamentals, a start point if you like, of any investigation into a crime is to tie the alleged perpetrators of a crime to the scene. Then we would examine the motive and means, and other scene evidence.” – Lieutenant General Tim Keating, March 27, 2017.

On Monday, March 27, 2017 both the Prime Minister Bill English and the Chief of New Zealand Defence Force Lieutenant General Tim Keating countered details revealed in the book Hit & Run and argued facts stated in the work could not be relied upon because the authors ‘incorrectly’ alleged Operation Burnham took place in Khak Khuday Dad Village and Naik Village deep in the mountainous Baghlan province of Afghanistan – two locations the Defence Force chief insisted his soldiers had never been to. Lt. General Keating asserted that the New Zealand Defence Force had never been to the two villages (Khak Khuday Dad and Naik) and insisted Operation Burnham took place 2.2 kilometres to the south of where the authors Nicky Hager and Jon Stephenson had marked the location of the villages (specifically on a map published in the book Hit & Run).

Lt. General Keating said: “As you will note from the book, the authors have been precise in locating these villages with geo reference points — so I have no doubt they are very accurate in the villages they are taking their allegations from.

“The villages lie in the Tirgiran Valley some 2 kilometres north from Tirgiran Village. In straight distance this is like comparing the distance from Te Papa to Wellington Hospital. However, if you overlay the elevated terrain, you will see we are talking about two very separated, distinct settlements,” Lt. General Keating said.

Beyond the obvious, it was a staggering claim, especially for those aware the New Zealand Defence Force had insisted one week prior, that its official position remained the same as stated in a media release dated April 20, 2011 that: “On 22 August 2010 New Zealand Defence Force (NZDF) elements, operating as part of a Coalition Force in Bamyan province, Afghanistan conducted an operation against an insurgent group.”

NZDF’s earlier position asserted New Zealand soldiers had not been in Baghlan province on or near August 22, 2010 the night of Operation Burnham. Now, the chief of New Zealand’s armed forces was admitting that they had.

At the press conference on Monday March 27, 2017 the Chief of New Zealand Defence Force prepared to stake his claim that the book could not be relied on as a factual reference.Before around 30 journalists, Lt. General Tim Keating pointed to four relevant bullet-points underlying key claims of fact in the book:

• Helicopter landing sites
• Location of houses that were destroyed
• Locations of where civilians were allegedly killed
• Presumed location of an SAS Sniper with evidence presented of SAS ammunition and water bottles which were found at the site.

A relationship was drawn between the Sniper location and the alleged killing of the individual Islamuddin, the School teacher. He acknowledged that the book contained a detailed list of those alleged to have been killed or wounded during a military operation in Khak Khuday Dad and Naik villages and a detailed list of the houses destroyed at the two locations.

Lt. General Keating then drove his point home that: “The underlying premise of the book is that New Zealand’s SAS soldiers conducted an operation on Khak Khuday Dad Village and Naik Village…” “It seems to me,” he stressed, “that one of the fundamentals, a start point if you like, of any investigation into a crime is to tie the alleged perpetrators of a crime to the scene. Then we would examine the motive and means, and other scene evidence.”

Lt. General Keating pivoted. “Let me now talk about the ISAF Operation Burnham in Tirgiran Village.” The premise of the Chief of Defence Force’s position was; the book Hit & Run described events that may or may not have occurred in Khak Khuday Dad and Naik villages, but that these alleged events had nothing to do with New Zealand Defence Force soldiers as they had never been to the two locations as marked in the book.

Likewise, the Prime Minister, Bill English, said the book got it wrong, that the New Zealand Defence Force had never been to either Khak Khuday Dad Village and Naik Village.

The Prime Minister added: “We believe in the integrity of the Defence Force more than a book that picks the wrong villages.”

For some, it appeared the raid that night as described by the authors could have been committed by another force. For others, it seemed the authors had got a major fact wrong so therefore the remaining claims in the book were moot.

By mid-Wednesday morning, the Government and the public found out there was more to it, that the Chief of New Zealand Defence Force was also wrong with regard to his geography.

Unpicking the official line began in earnest late on Tuesday night (March 28, 2017) when the lawyers representing the alleged victims of Operation Burnham contacted their clients back in Afghanistan. The purpose of the contact was to identify the exact location of Khak Khuday Dad Village and Naik Village; to confirm or otherwise disprove the existence of ‘Tirgiran Village’ (the NZDF stated official location of Operation Burnham), and to identify and confirm what village or villages are located at the exact co-ordinates as provided by Lt. General Tim Keating in his briefing to New Zealand media.

The lawyers’ clients, represented by a doctor from the region, stated categorically that ‘Tirgiran Village’ (as stated by Lt. General Keating) does not exist. That the region is known as Tirgiran Valley.

The lawyers evaluated from the new information, that to refer to the location of Operation Burnham as Tirgiran Village is like insisting an operation had occurred in Otago City (obviously Otago is a region and a city of that name does not exist, and as such would fail to offer an exact point of reference on a map).

Importantly, the lawyers confirmed, New Zealand Defence Force’ co-ordinates of where Operation Burnham took place were correct – but that the location was not as the NZDF had stated as ‘Tirgiran Village’ (an incorrect reference to a village that does not exist) but rather marks the geo-locations of where Khak Khuday Dad Village and Naik Village are located.

Specifically, the villagers confirmed the red-rectangle as marked on the NZDF map provided by the Lt. General on Monday March 27, and referred to as the area specific to Operation Burnham, frames the exact positions of where Khak Khuday Dad and Naik villages are located. So simply, the book contained a map that placed Khak Khuday Dad and Naik 2.2 kilometres north of there specific real locations.

And, the NZDF got it wrong by stating that those two villages were located where the book suggested, and that the village at the centre of Operation Burnham was a different village called Tirgiran Village (again, a place-name that does not exist).

So it turns out, according to those that live in the Tirgiran Valley, the Chief of Defence Force’s statement is incorrect or false; that when NZDF stated as a categorical fact that the New Zealand SAS commandos had never been to Khak Khuday Dad Village nor Naik Village, that that information was false.

At this point politically, it’s inescapable that the Prime Minister’s stated position ought to have taken a hit.

Remember back to the Prime Minister’s statement to media on Monday March 27, 2017 where he pitched his rationale: “We believe in the integrity of the Defence Force more than a book that picks the wrong villages.”

Surely, the same measure that was applied to the authors of Hit & Run now ought to be applied in equal measure to the New Zealand Defence Force chief and his officials.

After all, they also got their geography wrong. Since then, there has been stated unease about the whole issue by Internal Affairs Minister Peter Dunne (the minister who would have to sign off and authorise the costs of an inquiry should the Prime Minister order an inquiry be established).

By Thursday March 30, 2017 Dunne, through media, called for an inquiry into the whole affair. (ref. Stuff.co.nz ) Also on Thursday, the Minister of Defence at the time of the raid, Dr Wayne Mapp, wrote of his unease about Operation Burnham in a piece published on the Pundit website. (ref. Pundit ) Dr Mapp argued that the Government’s position, and that of the New Zealand Defence Force, cannot be the end of it. “Part of protecting their [the SAS’] reputation is also finding out what happened, particularly if there is an allegation that civilian casualties may have been accidentally caused. In that way we both honour the soldiers, and also demonstrate to the Afghans that we hold ourselves to the highest ideals of respect of life, even in circumstances of military conflict,” wrote Dr Mapp.

Common Statements Of Fact

The descriptions of Operation Burnham, in both the book, and, as stated by the New Zealand Defence Force, do mirror each account with precision on numerous vital points, including:

• The time of night Operation Burnham took place
• That New Zealand Defence Force was commanding and leading the operation (both on the ground and in the air)
• That the helicopters were manned by United States military personnel under New Zealand’s command
• That the purpose of the operation was to kill or capture those named as having been part of a Taliban insurgent raid that killed Lieutenant Tim O’Donnell
• That buildings were destroyed during the operation
• That people were killed at the villages.

However, anyone who has reasonably assessed the issue can see there is much more information to be revealed.

Conclusion: In concluding this analysis, it is an imperative that due to the highest levels of public and national interest concerning the alleged conduct, the seriousness of allegations, and the variables relating to the official account, that the matter be subjected to an independent commission of inquiry.

AL Jazeera’s report on the crisis in Myanmar: The video includes exclusive interviews with villagers who reveal accounts of military officers killing a 13-year-old boy and women in a village being held down and raped. Video: Al Jazeera English

Media organisations which, are attempting to report on soldiers committing human rights abuses against villagers in Myanmar are being obstructed and harassed, according to the Committee to Protect Journalists (CPJ).

The restriction comes after allegations of abuse including sexual violence by the Myanmar military, amid the conflict in the country’s northern Rakhine state.

The Irrawaddy, reported border guards and military officers in mid-October blocked journalists and photographers from several news organisations, including: The Irrawaddy, Myanmar Times, Democratic Voice of Burma, and 7 Day Daily. Media were blocked from traveling north of the state’s Kyikanpyin police station to areas in the Maungdaw Township, where joint military-police security operations are underway.

‘Unsafe’

The same report stated, security officials told reporters they could not travel to the area because it was unsafe for journalists.

Military officials also ordered journalists to delete photographs they had taken of the aftermath of an October 9, 2016, attack on a border guard post that killed several police officers. The reporters refused and also declined to tell officers their names or the media outlets they worked for.

‘Nothing to hide’

CPJ’s senior Southeast Asia representative, Shawn Crispin, said that if the government truly has nothing to hide, media should be allowed to report freely in the state.

“The best way to prove or disprove allegations of rights abuses is to allow independent media to probe the accusations,” Crispin said in the CPJ report.

Reuters have also reported of dozens of women being raped or sexually assaulted by Myanmar soldiers.

Zaw Htay, the spokesman for President Htin Kyaw, has denied the reports.

‘No logical way’

According to a Reuters news article, Htay said: “There’s no logical way of committing rape in the middle of a big village of 800 homes, where insurgents are hiding.”

Htay accused, Fiona MacGregor, an investigative editor at the independent Myanmar Times, for being biased against the government after she reported on allegations that claimed security forces raped around 30 ethnic women.

Acccoring to CPJ, MacGregor said she believed Htay aimed to stifle reporting on the allegations.

Myanmar Times managers soon fired MacGregor for breaching company policy against damaging national reconciliation and damaging the paper’s reputation by publishing the article.