So what is going on with the inquiry which the government decided should be held into Operation Burnham and related events?
Operation Burnham, you will recall, happened nearly nine years ago – to be precise, in August 21-22, 2010, in Tirgiran Valley in Afghanistan. It was an action by soldiers of NZ’s elite SAS, operating as a part of the International Security Assistance Force.
Reviews of what occurred by two former defence ministers as well as by a former prime minister found that Operation Burnham was conducted with the highest level of professionalism. Over-riding this, the Wellbeing Government decided to hold an inquiry, “bearing in mind the need for the public to have confidence in the NZDF”.
This followed the controversy stirred up by the publication in “Hit and Run”, a book written by Nicky Hager and Jon Stephenson, of allegations that six civilians were killed and 15 injured in a raid on villages by the NZ SAS.
The government appointed two of the country’s top legal brains, Supreme Court judge Sir Terence Arnold, and former Attorney-general (and onetime Prime Minister) Sir Geoffrey Palmer, to conduct the inquiry, with an initial budget of $2m (but this is expected to run to $7m by the time their work is done).
The decision to hold the inquiry provoked diverse reactions. On one side, critics said it would be a “whitewash”. National said it would be a “waste of money”. Hager and Stephenson, and their supporters, were “over the moon” (as Hager put it)—initially at least.
Attorney-general David Parker, when announcing the inquiry in April, insisted ‘continuing controversy’ around the operation had played a role in his decision, even though he had considered material including certain video footage of the operation which did not seem to him
“ … to corroborate some key aspects of the book Hit & Run. The footage suggests that there was a group of armed individuals in the village”.
He added the aim of the inquiry is to
” … get to the bottom of the allegations that were made in Hit & Run as to if they are correct or not”
Let’s remember what Hager said in 2017:
“The SAS believed, based on flimsy intelligence, that they would find a group of Taliban fighters who’d attacked a NZ patrol 19 days earlier. But the group wasn’t there, and the 21 people killed and wounded in the operation were all civilians – mostly women and children”.
Against that, the NZDF has spent thousands of hours going over the material it holds about the raid and successive defence chiefs have declared they had no doubts the SAS followed the rules of engagement.
Last year the NZDF emphatically said NZ troops did not raid the villages named in the book and that Operation Burnham took place about two kilometres away from those identified in the book. More recently the head of the defence force, Lieutenant General Tim Keating, 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.”
As one commentator noted, the way a government inquiry is set up 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 was 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”.
He was “pleased” that the issue of NZ involvement in transferring detainees to the Afghan secret police who he said are well known to torture detainees is going to be examined.
What is of wider concern is the virulent mood of those who, believing what Stephenson and Hager wrote, then argue that 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. They say those problems run very deep and they argue an inquiry is needed to look broadly at the NZDF’s “lack of transparency and accountability. Of a culture of cover-up and obfuscation”.
Both the eminent jurists appointed to hold the inquiry were clearly seized with the need to ensure they heard all sides of the issues and they even made preparations to gather evidence from the residents of the villages, said to be targeted in the operation. But despite taxpayer money being provided to legal representatives of those people, they have since withdrawn from the inquiry.
So what have been the significant developments since the inquiry opened in Wellington?
The most important – surely – has been the admission by one of the authors of Hit & Run, Jon Stephenson, in an article for Stuff and again on RNZ’s Morning Report, that he and his co-author, Nicky Hager, had erred in declaring that no Taliban insurgents were present in Naik, the village attacked by NZ troopers, supported by US helicopter gunships, during Operation Burnham.
As a blogger on the Left, Chris Trotter commented:
“Stephenson’s correction of his own, and Hager’s, original story will transform the whole event into something much more opaque….The black and white certainty of Hager, and the villagers’ lawyer, Deborah Manning, will be overwhelmed by fifty different shades of sceptical grey”.
Trotter added that the intelligence supplied to the International Security Assistance Force (ISAF) in which the killers of NZer Lieutenant O’Connell were said to be hiding in the Tirgiran Valley, was correct. It is also clear, from the testimony gathered by Stephenson, that these fighters were being sheltered in the village of Naik.
On the other hand, it also appears that ISAF’s American helicopter gunships, in attempting to kill the Taliban insurgents, killed and injured a number of Afghan civilians.
It appears the US had video from the night of Operation Burnham which showed two men visibly carrying weapons – a rifle and a rocket-propelled grenade launcher – when emerging from a building in Tirgiran which is said to have included a woman.
Newstalk political editor Barry Soper had some scathing comment on Stephenson’s admission there were insurgents in the village on the night of Operation Burnham.
“Why then did the authors (of Hit and Run) go to the publisher with only half the story? The excuse from Stephenson is a lame one. Hager it seems, wanted the book published two years ago. He was of the view that it needed to proceed then. Stephenson says it was a judgment call that they now have to live with. It’s a call unfortunately that we all have to live with. Credit to Stephenson for finally telling the whole story – but it’s a pity it wasn’t told from the start, it could have saved the taxpayer the money now being spent on the inquiry”.
But will the learned heads of the inquiry see Operation Burnham in the same light as Soper who says:
“In reality this was a firefight and unfortunately some innocents lost their lives, which tragically happens in war zones”.
As Point of Order sees it, the worry is now that the inquiry goes off at some tangent.
One of the terms of reference in the inquiry relates to 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)”.
This could offer plenty of scope for extensive analysis, if in fact those conducting the inquiry decide the real facts about Operation Burnham were not as presented by the authors of Hit and Run, but by the NZDF.
Let’s not forget the soldiers engaged in Operation Burnham were members of the highly trained SAS, serving their country, as part of an international effort seeking to bring peace to a region wracked by turmoil and warfare for decades.