Nicky Hager welcomes the Op Burnham Inquiry report, the most serious findings against the NZSAS and NZDF in their history – This report was first published on TheDailyBlog.co.nz

Ref. Report-of-the-Government-Inquiry-into-Operation-Burnham-print-version (Sir Terence Arnold KNZM QC, Chair, Sir Geoffrey Palmer KCMG AC QC PC, Member, July 31,2020 [pdf]); + Inquiry-into-events-in-Afghanistan (Inspector General of Intelligence and Security, July 31, 2020 [pdf]).

“The Operation Burnham Inquiry report, released Friday, concludes that a child was killed and other civilians were injured during Operation Burnham, and that NZSAS officers denied and hid evidence of the civilian casualties. It finds a prisoner was handed over to torture and the same prisoner was assaulted by an NZSAS trooper. Thus, after nearly ten years of denials, the Inquiry has confirmed the main allegations in the book Hit & Run.”

The report says the book has “performed a valuable public service”.

“The report goes further than the book and finds that named SAS officers hid and denied evidence of civilian casualties following Operation Burnham” (see below).

“The report contains the most serious findings against the NZSAS and NZDF in their history. This should prompt a lot of soul searching inside the New Zealand Defence Force.”

“The report also recommends major changes to NZDF. This is a huge achievement. It is very important that New Zealand is prepared to investigate wrongful actions by its military, thoroughly and independently. The Operation Burnham Inquiry has done that,” he said. Mr Hager welcomes the findings and recommendations. “I thank the commissioners and their staff for two years of hard work.”

“I am very pleased. This is a tremendously important result.”

“At the same time, the public should know that the Inquiry process was highly unequal. NZDF and other government agencies spent millions of dollars of public money trying to deny any wrongdoing, while the authors and public were not allowed to analyse and contest the agencies’ secret submissions and evidence. Military officers were repeatedly given the benefit of the doubt; but not so the villagers.”

“However this makes it all the more significant that the Inquiry has confirmed the main allegations in the book. Moreover, the government has accepted the report’s recommendations, which is very important. These changes will strengthen civilian control of the military in the years ahead.”

“The report confirms most key allegations in the book. It….

Confirms civilians were killed and injured (and did not reach a decision for most other deaths whether or not they were civilians)

Confirms a child was killed (Mr Hager and the Inquiry differ over whether there is “sufficient evidence” to be sure she was called Fatima) (5/93)

Confirms that reports of civilian casualties were denied and hidden by named SAS officers

Confirms NZDF did not give aid to the wounded (Mr Hager and Inquiry differ on whether it was legally obliged to do so (6/144)

Confirms the NZDF mission failed in its objective; the troops did not capture or kill either of the insurgent leaders they were seeking

Confirms NZDF failed to investigate civilian casualties (9/149)

Confirms no weapons were fired at the NZ-led forces at any stage of the operation (5/38)

Confirms that, contrary to NZDF claims, the raid occurred in the two villages named in the book, Naik and Khak Khuday Dad (3/4)

Confirms that both target houses were burned during the raid, and one of them was further damaged at a later date (however Mr Hager and the Inquiry disagree over whether this was deliberate)

Confirms the NZSAS breached the Geneva Conventions by handing over a prisoner to torture (11/144)

Confirms an NZSAS trooper assaulted a prisoner while bound and blindfolded, again breaching the Geneva Conventions (10/28)

Confirms Ministers were misled by NZDF (eg ch 1, clause 7.5.2)

Finds the NZDF response to reports of civilian casualties was “deeply troubling”, reflecting conduct and events over a number of years (9/1)

Finds a “surprising level of ineptitude and disorganisation within NZDF Headquarters” (9/165)

“This is an extremely serious list of findings.”

Severe criticism of NZSAS officers for hiding and denying civilian casualties

“Four former commanding officers of the NZSAS are found to have acted improperly. This is unprecedented.” The officers are:

1. Brigadier Chris Parsons (NZSAS commanding officer 2010): when he sent a “seriously misleading” email (1/76(a)) from Afghanistan saying that there was no evidence of civilian casualties, his position was “implausible” (9/27), “fundamentally inconsistent” with what he knew (9/30), it was a “serious failure” (9/63), and “unreasonable and unacceptable”(9/63). He directed a subordinate to remove words from a report that acknowledged civilian casualties (9/51). His actions were “inexcusable” (9/70) and the commissioners said “we do not accept his denial”. (9/69) Parson’s quietly left his job as New Zealand’s defence attache to London after the draft inquiry report was circulated.

2. Peter Kelly (NZSAS commanding officer 2004-6, Director of Special Operation 2009-11) produces a ministerial briefing paper denying civilian casualties that was “inaccurate in fundamental respects” (9/74) and “misleading” (9/158), despite it being “contradicted by other information available to NZDF, including video footage, intelligence reporting and ISAF’s own media releases” (ch1, clause 7.5.3.) He told the Inquiry he was unaware of a second US civilian casualty investigation but his own email shows he knew about it (9/78-79).

3. Jim Blackwell (NZSAS commanding officer 2006-9, Director of Special Operations 2011-15): the Inquiry members “do not accept his account” of how he obtained a report on civilian casualties that he quietly deposited in an NZDF safe (9/89 and 99). They do not believe him when he said he had told other NZDF officers about the report (9/100). They were “concerned” that he “failed to mention in his evidence that he visited Afghanistan” (9/93). He appears to have misled the Inquiry.

4. Tim Keating (NZSAS commanding officer until 2001 and Chief of Defence Force 2014-18) His claims publicly and to ministers that Hit & Run was not about an operation NZDF conducted were “implausible” (9/136) and “ignored, unfairly, what was accurate in the book” (9/137). Keating had “erred in giving the prominence he did to the location errors in Hit & Run and not acknowledging that the book was accurate in important respects” (9/133).The report adopts the names of the villages used in the book as the location of Operation Burnham (3/4), contradicting Keating.

Chapters 8 and 9 on the “cover up” are deeply embarrassing for the NZSAS and NZDF. This includes finding that someone in the SAS had deleted a video of the child’s funeral off the SAS computer system (see “Other important parts of the report” below).

NZDF lobbied the Inquiry recently with an “expert opinion” trying to disprove that the funeral video showed the wrapped corpse of a child (9/167). Mr Hager says this gives the public a picture of the way NZDF has fought the Inquiry from beginning to end. Disputing a dead child, who had already been conceded by the Chief of Defence Force, is “astonishingly bad taste”, he said. It seems the Inquiry thought so as well: it restated its opinion that the video showed a child and asked why NZDF had not done “this style of forensic analysis” immediately after Operation Burnham (ie to investigate the reports of a dead child). Mr Hager: “We get an unattractive snapshot of NZDF, just in recent months, using yet more public money to try to deny the child was killed. I doubt many NZDF staff will be impressed by this behavour.”

Errors in the book accepted

“The Inquiry report acknowledges the difficulty of researching the long-hidden subject and unsurprisingly finds some errors in the book relating to Operation Burnham. Mr Hager has agreed with the Inquiry about various errors identified, including acknowledging that three men were seen carrying weapons on video he obtained under the US Freedom of Information Act. The book also appears to have had the age of the child Fatima wrong and several photos used as illustrations in the book, including of the child, are incorrect. Fortunately these errors are minor compared to the main findings.”

“’The main force of the Hit & Run allegations does not start until chapters 8-12 of the Inquiry report: the actions of SAS officers in response to reports of civilian casualties and the abuse of a prisoner. The book is found to be correct on nearly every point here. This is what the Hit & Run title of the book was about: NZDF not investigating the reports of civilian casualties (which at the time appeared twice in the New York Times), and the torture, and instead trying to pretend nothing had happened.

Claimed errors not accepted

There are other issues where Mr Hager does not agree with the Inquiry. “We were never going to get every point over the line, against an army of lawyers and massive resources.”

Mr Hager does not agree with the Inquiry report on the dead child’s name, whether the acknowledged burning and blowing up of insurgents’ homes was deliberate, and the civilian status of various unarmed people who were killed, including four unarmed men shot in a separate valley and an unarmed man shot by an NZSAS sniper. (The main areas of disagreement are listed in the attached notes.)

The chapter 1 summary of findings gives a very one-sided account of these issues. Of the five “key allegations” on Operation Burnham listed in Chapter 1 para 9, the report finds the book correct or largely correct on three, 9(b), (d) and (e), we disagree on 9(c) and we had already conceded 9(a) last year.

Mistreatment of a prisoner

The report devotes chapters 10 and 11 to the subject of mistreatment of a prisoner, agreeing in full with the allegations in the book about torture and assault. It finds that NZSAS delivered a prisoner to the NDS secret police in the knowledge that NDS was torturing prisoners. The prisoner was indeed tortured and when NZDF learned this it did nothing about it.

The report says delivering a prisoner to possible torture makes New Zealand in breach of international law. When NZDF heard about the torture, it had an obligation to report the torture and investigate it, but it did not (11/129). The report recommends that the government take action on these breaches, including developing new policies, procedures and training programmes (Ch12, recommendation 4). This is a very important result.

Thanks to the key whistle blower

“The book and Inquiry would probably never have happened without the assistance of insiders. I especially thank my main confidential source – the person who first talked about “Operation Burnham” and a tortured prisoner called “Qari Miraj” – without whom the book would not have been written. He is an outstanding example of the importance of whistle blowers. Thanks to the numerous other people who helped, notably lawyers Deborah Manning and Simon Lamain who represented the affected villagers.

Background notes follow:

1. Areas where Mr Hager does not agree with the Inquiry findings

2. Other important parts of the report

Areas where Mr Hager does not agree with the Inquiry findings

1. Mr Hager believes that the NZSAS Joint Tactical Air Controller should have checked and questioned much more carefully before clearing the 1.19 am helicopter attack into the midst of a civilian village. NZDF shares responsibility for the civilian deaths and injuries in that village, and for the breach of international law that resulted.

2. The Inquiry found that the NZSAS did not search for and give aid to the wounded during Operation Burnham, but accepts the NZDF’s excuses. Mr Hager believes giving aid during or at least soon after the operation was necessary morally and under international law.

3. Four men were killed in a separate valley, far from the NZ ground forces and posing no threat, by a US helicopter late in Operation Burham. The attack was cleared by the NZ commander. They were identified as being unarmed. In the absence of strong evidence to the contrary, the Inquiry should have concluded that they were civilians. They appear to have been persuaded not to conclude this as otherwise it was a breach of the laws of war.

4. The Inquiry found that the NZSAS ground force commander ordered an NZSAS sniper to shoot an apparently unarmed man during Operation Burnham. The report states that the Inquiry has been “unable to reach a definitive conclusion” on whether this man, Abdul Qayoom, was a civilian or an insurgent.” (5/100) But, “although there are arguments either ways and reaching a view is not straight forward” (6/98), the Inquiry decided the ground force commander’s decision was justified in case he turned out to be a threat (6/98). Mr Hager believes that the man posed no immediate threat and there were other options available to continue to monitor him. He believes that if the commander was in doubt about whether the man was a civilian, he should have erred on the side of not ordered the shooting. The troops were under specific orders from the US commander avoid civilian casualties.

5. Mr Hager believes that the NZSAS inflicted more damage to houses in the villages than can be accepted as necessary or accidental. Operation Burnham targeted the homes of two known insurgents (as stated in the book) and the NZSAS managed to burn down a substantial part of both of them. NZDF says both were accidental. With the first, Abdullah Kalta’s house, the NZSAS troopers set half the house on fire, blew open one wall trying to gain access, blew up more building walls a second time while disposing of some munitions — all during Operation Burnham — and then the remaining wing of the building was destroyed entirely sometime more than a week later (the report proposes unconvincingly that it may have fallen down on its own). With the second house, Naimatullah’s, the report says an NZSAS officer saw a small fire had started inside but told the Inquiry there was no time to put it out and that NZSAS are not trained to put out fires. These five separate pieces of damage seem too much to be credibly dismissed as accidents. Most NZSAS missions involved no such damage to buildings. Mr Hager believes that the Inquiry gave NZDF too much benefit of the doubt.

Other important parts of the report

Video evidence hidden by NZSAS: The video showing the funeral of a child following Operation Burham was obtained by NZSAS staff in Afghanistan shortly after the raid, but mysteriously could not be found in the NZSAS records when the Inquiry asked for it. The report says “This raises an obvious question: why was NZDF unable to produce the funeral video from its systems when it had been able to produce other videos provided to TF81 at the same time? In the circumstances, we consider the most likely explanation is that the funeral video was deleted or misfiled, most likely in Afghanistan.” (9/168) “All witnesses who recalled the video continued to believe that it showed the funeral of a child.”(9/167(b)) The video “had a file name indicating that it may have shown casualties of Operation Burnham.” (5/91)

CRU-led: NZDF repeatedly claimed, including in written briefings for the Minister of Defence and Prime Minister, that Operation Burnham was “CRU-led” (referring to an Afghan Police commando unit) and only supported by the NZSAS. The implication was that the NZSAS was not responsible for what happened. However the Inquiry says that “to suggest that the CRU planned or led the operation, or were even involved in planning or leading of the operation in a meaningful way, is simply inaccurate and misleading” (4/46).

The Inquiry’s recommendations: Chapter 12 of the report has important recommendations. The commissioners say “We have not arrived at our views lightly. Change is necessary.” (12/2). They make four main recommendations:

1. that the Minister of Defence take steps to satisfy him or herself that NZDF’s

a) organisational structure and

b) record-keeping and retrieval systems are in accordance with international best practice and are sufficient to remove or reduce the possibility of organisational and administrative failings of the type identified in this report (Ch12 Recommendation 1); for instance the commissioners expressed concern about “a culture of exclusivity and secrecy associated with the NZSAS” (12/20));

2. the establishment, by legislation, of an office of Independent Inspector-General of Defence “to be located outside the NZDF organisational structure” (Ch12 Recommendation 2); and

3. NZDF produce a Defence Force Order “setting out how allegations of civilian casualties should be dealt with” (Ch12 Recommendation 3).

4. the Government develop and promulgate effective policies and procedures for people detained in overseas operations.

“These are very serious recommendations, reflecting the seriousness of NZDF’s wrongdoing.”

The role of “crown” lawyers:

Throughout the Inquiry a team of lawyers representing the Ministry of Foreign Affairs, Department of Prime Minister and Cabinet and intelligence agencies made submissions and spoke at hearings, in virtually every instance presenting legal advice that implied that NZDF had at no stage done anything wrong. The Inquiry has concluded that these “crown” positions are in various instances incorrect. The activities of this pro-NZDF public service group, resisting all suggestions that NZDF had done wrong, is a worrying situation revealed by the Inquiry process.

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.