Terms of Reference

The Inquiry's Terms of Reference are set by the Government and explain why it was initiated, what should be investigated and reported on, and how it is expected to operate.

Having regard to its purpose, the Inquiry will inquire into and report on the following:

  • The conduct of NZDF forces in Operation Burnham, including compliance with the applicable rules of engagement and international humanitarian law;
  • The assessment made by NZDF as to whether or not Afghan nationals in the area of Operation Burnham were taking part in direct hostilities or were otherwise legitimate targets;
  • The conduct of NZDF forces in the return operation to Tirgiran Valley in October 2010;
  • The NZDF’s planning and justification/basis for the Operations, including the extent to which they were appropriately authorised through the relevant military chains of command, and whether there was any Ministerial authorisation of the Operations;
  • The extent of NZDF’s knowledge of civilian casualties during and after Operation Burnham, and the content of written NZDF briefings to Ministers on this topic;
  • Public statements prepared and/or made by NZDF in relation to civilian casualties in with Operation Burnham;
  • Steps taken by NZDF after Operation Burnham to review the conduct of the operation;
  • Whether NZDF’s transfer and/or transportation of suspected insurgent Qari Miraj to the Afghanistan National Directorate of Security in Kabul in January in 2011 was proper, given (amongst other matters) the June 2010 decision in R (aoa Maya Evans) v Secretary of State for Defence [2010] EWHC 1445;
  • Separate from the Operations, whether the rules of engagement, or any version of them, authorised the predetermined 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 apparent to (a) NZDF who approved the relevant version(s) and (b) responsible Ministers. In particular were there any written briefings to Ministers relevant to the scope of the rules of engagement on this point; and
  •  Whether, and to the extent which, NZDF’s interpretation or application of the rules of engagement, insofar as this involved such killings, changed over the course of the Afghanistan deployment.

Read the full Terms of Reference [PDF, 179 KB]