NZDF probe not carried out on allegations

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By David Fisher

NZDF has confirmed it has never carried out its own investigation into allegations civilians were killed during an NZSAS raid in Afghanistan.

It also received only a summary of the official inquiry that was carried out - one of the key pieces of information used by Chief of Defence Force Lieutenant General Tim Keating to rule out any inquiry.

NZ Defence Force has fiercely defended its actions during a raid detailed in the book Hit & Run, which authors Jon Stephenson and Nicky Hager claimed was motivated by revenge. They claimed it led to the deaths of six civilians - including a 3-year-old girl - and the deliberate burning of villagers' homes.

In contrast, NZDF says nine opponents were killed although conceded there may have been civilian casualties after six years of dismissing the claims as "unfounded".

NZDF's defence in a briefing to Minister of Defence Gerry Brownlee, show documents released through the Official Information Act.

"Such allegations are of serious concern to me because they strike at the heart of the professionalism and integrity I expect of Defence Force personnel.

"I expect my personnel, as part of a trained and disciplined force, to comply with the Law of Armed Conflict and with the rules of engagement when deployed on operations."

The March 30 briefing - also sent to the Prime Minister - included Keating's view that confusion over the location of the raid - which NZDF focused on in its public response - had no part in considering whether an inquiry should be carried out.

Instead, the basis for his decision was New Zealand and coalition intelligence material, other "operational" documentation, and the Rules of Engagement.

He said he had also considered the executive summary of the only official inquiry carried out into claims of civilian casualties - a joint effort by two Afghan ministries and the International Security Assistance Force, which acted as the umbrella body for the coalition forces.

Defence Force Chief, Lieutenant General Tim Keating, during a press conference in Wellington on the allegations made in the book Hit & Run. Photo / Mark Mitchell
Defence Force Chief, Lieutenant General Tim Keating, during a press conference in Wellington on the allegations made in the book Hit & Run. Photo / Mark Mitchell

He told the Minister: "The information I have seen clearly shows Defence Force and coalition personnel involved in the Operation taking deliberate steps to ensure the Operation was conducted in accordance with the Law of Armed Conflict and the Rules of Engagement.

"This includes ensuring the positive identification of individuals as lawful targets and taking all feasible precautions to minimise potential civilian casualties."

Keating said the book alleged crimes committed by New Zealand personnel and by coalition partners.

Continued below.

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He said NZDF had no power to investigate wrong-doing by other countries' military staff "in situations such as this".

"However, if I were concerned with the conduct of foreign service personnel it is my duty, under the Law of Armed Conflict, to bring it to the attention of the appropriate national authorities.

"In reviewing the information available to me, I have not seen any information to substantiate a suggestion foreign service personnel engaged in unlawful conduct."

He said the claims in Hit & Run and the information he had available meant "the requirement to conduct an internal Defence Force inquiry into Operation Burnham has not been triggered at this stage".

Other options included a command inquiry - a less formal review by the NZSAS commander - and a Court of Inquiry, which would see senior officers review evidence and take testimony.

Keating said neither were suitable for allegations the law had been broken, and because of the time and distance from the raid.

In a covering letter to the OIA response, NZDF's chief of staff Commodore Ross Smith said NZDF had no video or still photograph support captured during the operation.

Smith said there was video of the raid held by NZDF but it belonged to the United States.

"The NZDF has asked the United States to declassify and release video imagery captured during Operation Burnham and passed to the NZDF."

Smith said that "until permission is granted, the video imagery is withheld" because "its release would likely prejudice the entrusting of information to the Government of New Zealand on the basis of confidence by the Government of the United States".

The Herald sought review documentation and was told: "There has been no formal inquiry report undertaken by the NZDF at this time."

Smith said NZDF could not release the ISAF/Afghan report because it held only the "executive summary of an investigation into civilian casualties". He said it had "sought further documentation from NATO relating to this investigation".

He said NZDF needed to receive then assess the information and even then would possibly need clearance to release it.

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