Can we trust New Zealand’s military? There must now be serious doubt, given the landmark report released on Friday concluding the investigation into allegations made in the book Hit and Run by Nicky Hager and Jon Stephenson about a 2010 SAS killing raid in Afghanistan.

The most recent Colmar Brunton Public Sector Reputation Index found the New Zealand Defence Force has the second best reputation with the public of any government agency in the country (behind the Fire Service, but ahead of agencies like the Department of Conservation, Customs, and Met Service). Trust in the agency is extremely high and has been improving lately – see: Public sector reputation 2020.

Yet Friday’s report would suggest the Defence Force can’t be trusted. Attorney General David Parker even stated, in releasing the report, that Government Ministers have been unable to exercise political control of the military. That is a serious problem in a democracy.

Severe criticisms of the military over Operation Burnham controversy

A Stuff newspaper editorial on Saturday says New Zealanders “will probably be shocked and saddened” by the report – see: A mix of shock and relief in the SAS report. Although the inquiry had some good news for the military, in that the raids were found to be legal and professionally carried out, the newspaper notes, “in significant ways the report agrees with the journalists” Hager and Stephenson.

The editorial is severely critical of the military, saying “a picture emerges of a defence force that does not consider itself to be answerable to its political masters and the wider public. Civilian control of the military is an important principle of New Zealand’s democracy.”

Today’s Otago Daily Times editorial is equally scathing, saying “there should be no chance of the Defence Force sitting back with satisfaction” after the report was so critical of its handling of the controversy – see: Operation Burnham.

Here’s the newspaper’s most interesting point: “These findings will sting the Defence Force, and rightly so. The New Zealand public needs to have confidence its national forces will not only operate in battle zones with the highest levels of integrity and professionalism but will come clean when things go wrong. It is of deep concern that multiple senior commanders at NZDF let the side down with actions that, to paraphrase Defence Minister Ron Mark, showed serious deficiencies. The inquiry has also shone a mostly favourable light on Hager’s work, and the worth of investigative journalism.”

The Spinoff’s political editor, Justin Giovannetti has summed up the report’s criticisms of the NZ Defence Force, saying it “reveals a military headquarters that is inept and disorganised. Records couldn’t be found. Contradictory reports were ignored. A senior officer in Afghanistan was misleading his superiors in Wellington about civilian casualties. Those superiors didn’t question reports, despite evidence that civilians had been killed in the August raid. As a result, the military misled the public for seven years” – see: SAS did nothing wrong, but senior military officers misled public: report.

Giovannetti reports on the Attorney General’s reaction to the report: “Parker was clear earlier in the morning that one of the country’s bedrock constitutional principles was compromised” by the operations of the military. He quotes Parker: “During those years, as a consequence of the ineptitude and the suppression of documents that should have been coming to ministers, ministers were not able to exercise the democratic control of the ministry. The military do not exist for their own purpose.”

Blogger No Right Turn says the operations of Defence Force bosses “obviously undermines the principle of civilian control of the military, striking at the heart of our democracy. These people need to be held accountable, dishonourably discharged and stripped of their honours, pour encourager les autres. Careers need to end over this, otherwise there is no incentive for NZDF not to do it again in future” – see: Vindicated.

According to Alexander Gillespie, professor of law at Waikato University, the actions of the military – particularly in their relationship with Government – have been a “disaster”, and the institution “has now bombed its own position as the trusted military arm of the state” – see: Operation Burnham: the New Zealand military’s self-inflicted wounds will not heal by themselves.

Gillespie says the military has “proved itself untrustworthy” in crucial ways, humiliating itself. He predicts the conclusion of the report “will almost inevitably mean it is stripped of the relative autonomy it has enjoyed to this point.”

Does the report agree with the military or Hager and Stephenson?

For a good summary of the report, see Thomas Manch’s Operation Burnham inquiry: Child was likely killed, SAS soldiers misled, prisoner was tortured. Here’s the top line version: “A damning report into the Defence Force’s handling of 2010 SAS-led raid in Afghanistan says a child was likely killed during the raid, elite soldiers misled ministers and the public about allegations of civilian deaths, and an insurgent captured by New Zealand troops was beaten while detained.” Most disturbingly, the report finds that New Zealand troops handed over one of their prisoners to the Afghanistan forces, knowing he would be tortured, meaning the “Defence Force was therefore in breach of Geneva convention.”

The official report doesn’t agree with all of the allegations made by Hager and Stephenson. Most importantly, it finds that the raid was legal and professionally carried out, and that there was no strategic cover-up by the military of the civilian killings.

Hager has responded – see: Nicky Hager welcomes the Op Burnham Inquiry report, the most serious findings against the NZSAS and NZDF in their history. He argues that “after nearly ten years of denials, the Inquiry has confirmed the main allegations in the book Hit & Run.” And he concludes “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.”

Gordon Campbell doesn’t accept the report’s findings at all. He has written a scathing response, suggesting it amounts to a whitewash and does not sufficiently deal with the military misadventure and misinformation in question – see: On the virtues (and fluffed opportunities) of the Operation Burnham report.

Campbell doesn’t accept there was no Defence Force cover-up. Furthermore, he does not believe the Defence Force will fix the problems identified: “Can we really expect an organisation with this bunker mentality to reform itself voluntarily, from the inside?”

The response of the NZ Defence Force

Defence Force chief, Air Marshal Kevin Short, has responded by saying that the military must change as a result of the report, becoming more accountable and open, involving structural and cultural change – see RNZ’s Operation Burnham report: NZDF ‘deeply sorry’ for misleading ministers and public. Here’s his key statement: “If we are to maintain the trust and confidence of the people we serve, we must be accountable. We must be better at the way we record, store and retrieve information, and then subsequently present that information to ministers and the public. I will ensure this happens.”

But has the Defence Force really learnt anything from the report and demonstrated genuine willingness to change? Justin Giovannetti questions this, pointing out that on the release of the report, the military’s obfuscation has continued: “There seemed to still be a lingering reluctance today by the NZDF to take responsibility for what happened during the raid. In a prepared statement, Short said that the inquiry confirmed ‘New Zealand forces were not involved’ in the civilian deaths. That’s not correct.” In fact, although it was the US military that killed the civilians, it was in an operation in which New Zealanders were in control and gave the orders.

This is also dealt with by Thomas Manch, who points out that Air Marshal Kevin Short’s “charitable interpretation of the facts is what got the Defence Force into this mess in the first place” – see: Operation Burnham: An apology from the Defence Force, but redemption has just begun.

So, are the military bosses still playing down the severity of what happened? That’s the view of Hit & Run co-author Jon Stephenson, who says he feels vindicated by the report but “is worried its severity is not being fully conveyed” – see Katie Scotcher’s Operation Burnham: Former Minister Wayne Mapp ‘forgot’ about civilian casualties.

Here’s Stephenson’s view: “I’m concerned that they are being downplayed by the Defence Force, not only initially and throughout the inquiry, but even now it seems like the Attorney General is not really prepared to accept the extent to which the inquiry has condemned some of the actions of the Defence Force.” According to this article, Stephenson also says he has “serious doubts” on “whether the Defence Force could change because of their record and their performance throughout the inquiry”.

The role of former Defence Minister Wayne Mapp

Former Defence Minister Wayne Mapp, has been asked to account for his role, and has been contrite. He claims he continued to tell the public that allegations of civilian deaths were unfounded – despite being briefed that they were possible – because he forgot about a briefing informing him of this.

This is dealt well with in Katie Scotcher’s Operation Burnham: Former Minister Wayne Mapp ‘forgot’ about civilian casualties. Mapp is quoted as saying that it was “a major failing on my part” and that he had asked himself “a huge amount of times” how he could forget such a crucial piece of information.

Mapp says New Zealand now must remedy the damage caused by Operation Burnham: “I’ve always been of the view that New Zealand as a nation owes compensation to the victims. I have always felt that we haven’t done enough as a nation to find out. Well now we have the report, we have more information. And I think is now incumbent upon the government now having got the report to do more for the villagers.”

An apology is also being demanded by the Hit & Run campaign group. Spokesperson Sarah Atkinson says: “It is a huge injustice and the New Zealand Defence Force owes apologies and reparations to the Afghan families of the victims” – see RNZ’s Call for NZ Defence Force to apologise to villages where civilians were killed.

Others involved in the campaign for uncovering the truth about Operation Burnham are celebrating the release of the report. Amnesty International’s Meg de Ronde has written about how the report vindicates human rights defenders like Stephenson and Hager who have fought “tooth and nail to hold those in power to account”, and have had to battle not just an inquiry that was stacked in favour of authorities, but also faced ridicule – see: We shouldn’t have to work this hard to get transparency from our government.

Finally, cartoonists have been scathing over the years about the official version of what happened in Afghanistan, so for an updated view, see: Cartoons about Hit & Run, and NZ in Afghanistan.

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.