Amicus Curiae: Close to Home: The Inquiry into New Zealander Forces in Afghanistan

By Anuja Mitra

It is probably fair to say that the average New Zealander spends little time thinking about our armed forces. In many ways, we consider ourselves disengaged from the conflict unfolding in other parts of globe. This assumption may change in light of the government inquiry into Operation Burnham, a 2010 mission the NZDF (New Zealand Defence Forces) embarked on in Afghanistan.

The inquiry was sparked by the 2017 release of Hit & Run: The New Zealand SAS in Afghanistan and the Meaning of Honour. Penned by journalists Nicky Hager and Jon Stephenson, the book claims that New Zealand forces violently raided two Afghan villages, caused civilian casualties and were involved in the torture of a suspected insurgent. Should these allegations be proven correct, New Zealand forces may be found to have acted contrary to international law.

Operation Burnham and Hit & Run

In 2010, the NZDF was present in Afghanistan as part of the International Security Assistance Force (ISAF). The ISAF was created by the United Nations Security Council to train Afghan forces and aid in the rebuilding of government institutions. Operation Burnham took place in August, and saw New Zealand troops acting alongside United States forces and the Afghan Crisis Response Unit.

According to Hit & Run, New Zealand forces led a raid on two villages in Tirgiran Valley, Naik and Khak Khuday Dad, in retaliation for the death of a New Zealand soldier by a roadside bomb. The Special Air Service (SAS) believed “on flimsy intelligence” that the fighters responsible were in these villages. Yet the book claims that 21 identified civilians — including women and children — were injured or killed, and details that “a dozen houses” were destroyed. The authors further allege that a suspected fighter named Qari Miraj was detained and assaulted by an SAS member. He was then handed over to the Afghan secret police and tortured, despite the SAS’s knowledge that the secret police were “notorious” for mistreating prisoners.

Hager and Stephenson firmly hold that the information in their book is accurate, having been gathered from the accounts of former New Zealand, Afghan and US military personnel as well as villagers in Afghanistan. They believe that the contents of Hit & Run raise grounds to suspect that war crimes were committed. Ultimately, though, this must be determined by experts after a thorough investigation.

The NZDF Response

The NZDF has firmly denied the book’s claims. It initially referred to a 2011 investigation which had concluded that allegations of civilian casualties were “unfounded”. In a later press conference, however, then-Lieutenant General Tim Keating conceded that there may have been civilian casualties. Yet he contends that these were unintentional and caused by machine malfunctions. This is corroborated by the NZDF online information pack on Operation Burnham, which explains that “a gunsight malfunction on one of the helicopters engaging insurgents … caused rounds to fall short of the intended target”. Keating also stated that the NZDF had only ever carried out operations in Tirgiran village, which was 2 kilometres away from the Tirgiran Valley named by the book. Yet the NZDF online document contains maps confirming that Hager and Stephenson had correctly identified the location. Regardless, the NZDF maintains that just two shots were fired during the entire operation and one identified insurgent was killed. It also denies that troops deliberately destroyed buildings or mistreated Qari Miraj, and concludes overall — consistent with earlier statements — that New Zealand forces had complied with the rules of engagement.

The Inquiry … and the Stakes

The government inquiry was announced earlier this year and will be headed by Sir Terence Arnold and Sir Geoffrey Palmer. It was established under section 6(3) of the Inquiries Act 2013 and will function “independently, impartially and fairly” to establish the facts surrounding the Operation. Attorney General David Parker stated that although footage he had viewed went against core aspects of Hit & Run, this in itself was not conclusive. The decision to hold an inquiry does not implicitly acknowledge that the book’s claims are true; rather, it recognises that an investigation is in the public interest. Of course, such an investigation must also be in the government’s interest. Under the Rome Statute, the International Criminal Court can launch an inquiry into suspected war crimes if it finds that there is a “reasonable basis” on which to do so, and if the country exercising jurisdiction over the case is “unwilling or unable genuinely to carry out an investigation”. If New Zealand does not act, it may be likely that the International Criminal Court will.

The allegations in Hit & Run have not been confirmed. Yet it is important for the sake of accountability that a full and frank investigation is carried out and New Zealanders can find out the truth. Whatever the result of this investigation is, Hager and Stephenson may be right in stating that the way our country handles the situation is a test of honour and the values we hold dear.

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