Operation Burnham report released

  • Hon David Parker

Attorney-General David Parker has today released the findings of the Government inquiry held into Operation Burnham and related events.

The operation took place on 21-22 August 2010 in Tirgiran Valley, Afghanistan, and was carried out by NZSAS troops and other nations’ forces operating as part of the International Security Assistance Force.

It was the subject of the book Hit & Run by authors Nicky Hager and Jon Stephenson which contained a number of serious allegations.

“Bearing in mind the need for the public to have confidence in the NZDF, the Government decided it was in the public interest to hold an inquiry. The findings of this report show that it was the right thing to do,” David Parker said.

“Releasing the report in full today demonstrates our commitment to transparency.”

The independent inquiry was undertaken by two people of the highest repute, former Supreme Court judge Sir Terence Arnold and Sir Geoffrey Palmer.

It found that the actions of the NZSAS on the ground during Operation Burnham were professional and lawful. There were insurgents present.

There were significant shortcomings in the way NZDF subsequently dealt with allegations of civilian casualties, resulting in a series of incorrect statements in briefings to Ministers and public statements between 2010 and 2017. 

The inquiry also considers that the way a prisoner was treated and handled shows New Zealand’s detention policy was inappropriate and did not reflect New Zealand’s values. 

In relation to specific matters the inquiry found:

All actions by NZSAS personnel during Operations Burnham and Nova – a return operation to the same villages – complied with the rules of engagement and international humanitarian law. They were legitimate operations, and were not carried out as revenge attacks.

It is likely that a female child (but not the girl Fatima depicted in the book) died as a result of the operation, but NZSAS personnel had a proper basis for clearing the engagement in which she was most likely killed.

At least seven men were killed in the operation. Three were identified as insurgents in subsequent intelligence reports. There is evidence linking two others to the insurgent group but no firm conclusion was reached. The inquiry was unable to determine whether two others were insurgents or civilians. In only one case, one of the latter group, did a New Zealand soldier fire the shots. The report finds this killing was in accordance with the rules of engagement and the principles of International Humanitarian Law applicable to a non-international armed conflict.

At least six civilians were injured.

An Incident Assessment Team (IAT) appointed by ISAF that undertook a preliminary investigation immediately after the operation concluded it was possible that civilian casualties had occurred when several buildings were struck by fire from a misaligned weapon on one of the helicopters.

While there was no organised institutional strategy to cover up civilian casualties, between 2010 and 2017 NZDF made a series of incorrect and misleading statements in briefings to Ministers and in public statements, to the effect that the allegations of civilian casualties had been investigated and found to be “baseless” or “unfounded”. 

The inquiry concluded that a senior NZSAS officer deployed in Afghanistan displayed an inexcusable lack of care and rigour in misrepresenting the findings of the IAT investigation into allegations of civilian casualties.

The communication was accepted without question by his superiors despite being contradicted by other information available to NZDF, including video footage, intelligence reporting and ISAF’s own media releases.

NZDF subsequently failed to adequately remedy its earlier incorrect statements and advice, even after it knew they were wrong.

NZDF continued to repeat its incorrect statements, both publicly and to Ministers, due to failures of organisational structure, systems and culture. NZDF personnel edited out of reports from Afghanistan that there may have been civilian casualties.

NZDF’s failure to provide full, timely and accurate information to Ministers undermined two fundamental principles of our democracy – civilian control of the military and ministerial accountability to Parliament. 

From September 2011 former Defence Minister Wayne Mapp failed to correct the public record and continued the false narrative that the IAT had found there were no civilian casualties even though he had been briefed at that point and knew its true conclusion was that civilian casualties were possible. Following this briefing he gave answers he ought to have known were wrong to journalists. This was “a significant departure from the standards expected of Ministers”, the inquiry found.

NZDF’s rules of engagement did authorise targeted killings (i.e. the predetermined and offensive use of lethal force against specified individuals) provided the individual was directly participating in hostilities. These matters were apparent to NZDF, the Minister of Defence and the Prime Minister during the 2009-2012 period.

Insurgent Qari Miraj was punched around the rib or stomach area by a member of the NZSAS. Despite strong evidence that he was tortured after he was placed into Afghan custody, senior leaders and Ministers were not briefed, nor were any further steps taken.

The inquiry made four recommendations:

·         An expert review group should look at NZDF’s organisational structure, record-keeping and retrieval processes to assure the Defence Minister they meet international best practice.

·         An office of the Independent Inspector-General of Defence (located outside the NZDF organisational structure) should be established to facilitate independent oversight of NZDF and enhance its democratic accountability. 

·         A Defence Force Order should be promulgated setting out how allegations of civilian casualties should be dealt with in-theatre and in New Zealand.

·         The Government should set effective detention policies and procedures in relation to people detained by, or with the involvement of, New Zealand forces overseas and how allegations of torture by such persons are treated.

“The Government thanks the inquiry for the report, accepts in principle all four recommendations and will undertake work to progress them,” David Parker said.

He said the inquiry finds that the book Hit & Run contains many errors and impugns the integrity and professionalism of the NZSAS personnel involved on the ground in Operation Burnham on the night in question.

Despite that, in important respects the book was right. It is likely a child was killed in Operation Burnham, some civilians were injured, an SAS trooper did punch Qari Miraj, the evidence indicates he was tortured in the Afghan National Directorate of Security detention facility.

The inquiry also finds NZDF did give erroneous information to Ministers and the public about the allegations of civilian casualties over a number of years.

“Without the book, the findings of the report and its important recommendations would not have been possible. Given this, it is right to acknowledge, as does the report, that the book has performed a valuable public service,” David Parker said.