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Overview of Inquiry and findings

Chapter 1a

A Taliban attack in Bamyan

  1. In 1996, the Taliban took control of the Government of Afghanistan following a four-year civil war. The Taliban Government permitted the terrorist group al-Qaida, under the command of Osama bin Laden, to operate training camps in Afghanistan.1 On 11 September 2001, al-Qaida operatives led a number of attacks in the United States, most dramatically and devastatingly on the World Trade Center in New York, resulting in the deaths of approximately 3,000 people. This produced an international response, which resulted ultimately in New Zealand deploying defence force personnel to Afghanistan, along with many other nations.2
  2. The Taliban Government fell in late 2001. Following a meeting in Bonn, Germany in December 2001, an interim Afghan Government was set up under the leadership of Hamid Karzai. At the same time, the United Nations Security Council established the International Security Assistance Force (ISAF) to provide military support to the interim Government, initially in Kabul and the surrounding area.3 ISAF was a North Atlantic Treaty Organization (NATO)-led force. Later, in March 2002, the Security Council established the United Nations Assistance Mission in Afghanistan (UNAMA) to assist the interim Government with its responsibilities in relation to matters such as human rights, national reconciliation and rebuilding and recovery activities.4
  3. New Zealand’s contribution to these efforts was principally two-fold—first, through periodic deployments to Afghanistan of the New Zealand Special Air Service (NZSAS) to provide security, conduct special operations and support the training of Afghan personnel—and second, through its Provincial Reconstruction Team (NZPRT) in Bamyan Province in the central highlands of Afghanistan.5 The NZPRT was made up mainly of New Zealand Defence Force (NZDF) personnel but, over time, there was increasing civilian participation.
  4. The military challenges that faced those who operated in Afghanistan were well articulated to the Inquiry by Sir Angus Houston. During his time as the Australian Chief of Air Force and then Chief of the Defence Force, Sir Angus made some 30 separate visits to Afghanistan. In his presentation to the Inquiry he said:6

    The war in Afghanistan did not involve a fight against a known and formally organised adversary – it was not conducted against formed military units and adversaries wearing uniforms who had set orders of battle of which we already had well documented intelligence.

    Rather there were very few set piece battles. There were no easily demarcated front lines. This was irregular, guerrilla, asymmetric and counter-insurgency warfare. Quite literally a soldier could be standing beside someone in an Afghan village who hours or days later might take up arms against him. Similarly there was a vast civilian population whose tribal and ethnic structure was intricate and complex.

  5. As we discuss in subsequent chapters, these features of the conflict are important when considering the application of International Humanitarian Law (also referred to as the Law of Armed Conflict) in Afghanistan and, in particular, the use of a list known as the Joint Prioritised Effects List (JPEL) to identify suspected insurgents.
  6. On 3 August 2010, an NZPRT patrol was returning to base after delivering wire baskets which were to be filled with rocks and used to repair flood-damaged river banks in the northern part of Bamyan province, near the border with Baghlan province. The patrol was ambushed by Taliban insurgents. The commander of the patrol, Lieutenant Tim O’Donnell, was killed and two other soldiers and an Afghan interpreter were wounded.7 The insurgents escaped, apparently unharmed. This attack triggered a series of events, which led, ultimately, to this Inquiry.
  7. Following the 3 August attack, the NZSAS were involved in a number of operations directed at those identified as having led the attack. From the viewpoint of the Inquiry and the public, the most significant of these operations is the first, which has become known as Operation Burnham.8 This was an operation which occurred on 22 August 2010 in two villages in Tirgiran Valley in the Tala wa Barfak District of Baghlan province. The operation was aimed at capturing two insurgent leaders thought to have participated in the 3 August attack: Abdullah Kalta and Maulawi Neimatullah. There were as well several other relevant operations, which have attracted less public attention but which fall within the Inquiry’s Terms of Reference, as we discuss below.9
  8. Allegations against the New Zealand Defence Force

  9. In their jointly authored book, Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour,10 Mr Nicky Hager and Mr Jon Stephenson dealt with NZDF’s response to the 3 August 2010 attack. The authors, both investigative journalists, relied on information from a variety of sources in Afghanistan and in New Zealand. They made a number of allegations about the conduct of members of NZDF during the operations that followed the attack, most particularly in the context of Operation Burnham and an operation that was directed at arresting and detaining Qari Miraj (referred to as Objective Yamaha by NZDF), another insurgent leader suspected of involvement in the 3 August 2010 attack. For convenience, we will refer to this latter operation as Operation Yamaha.
  10. In relation to Operation Burnham, the key allegations are:
    1. The operation was based on faulty intelligence—no insurgents were present in the villages when the operation occurred.
    2. Six civilians, including a three year old child, Fatima, were killed and 15 were injured during the operation, mostly as a result of aircraft fire.
    3. Villagers’ houses were deliberately destroyed or damaged by both the NZSAS and the aircraft involved, in some instances purely for reasons of revenge. In one house, the NZSAS destroyed a room containing religious books.
    4. NZDF provided no aid or assistance to the wounded, the relatives of the deceased or those who suffered property damage, either immediately after the operation or at any time subsequently.
    5. NZDF did not investigate the allegations of civilian casualties and damage to civilian property, but rather tried to cover up what had happened.
  11. In relation to Operation Yamaha, the book alleges that, when Qari Miraj was captured, he was beaten by NZSAS personnel, before being transported to an Afghanistan National Directorate of Security (NDS) facility in Kabul where torture was known to occur. Qari Miraj was detained at that facility and was, it is alleged, tortured to extract a confession from him. New Zealand had access to that confession knowing that it had been obtained by torture.
  12. NZDF’s actions in respect of these operations are alleged to have been in breach of its obligations under International Humanitarian Law / the Law of Armed Conflict, the applicable rules of engagement and the law relating to the treatment of detainees.
  13. The other operations relating to insurgents thought to have been involved in the 3 August 2010 attack which are referred to in Hit & Run include operations against:
    1. Maulawi Neimatullah (Objective Nova). This involved a return operation to the villages where Operation Burnham occurred. Hit & Run alleges that the NZSAS personnel on the operation burned down the house of Abdullah Kalta (who was not present) in an act of revenge. We will discuss this operation in conjunction with Operation Burnham.
    2. Qari Musa. It is alleged that Qari Musa was killed in a targeted killing carried out on 20 May 2011. The book claims that the NZSAS organised this operation, tracking Qari Musa to a house and then calling in an air strike to kill him.11 This operation did occur (albeit on 23 May). Qari Musa was initially reported as killed,12 but reporting shortly afterwards indicated that he had in fact survived.13 We understand that he is still alive today.14 More significantly for present purposes, having reviewed the evidence we are satisfied that NZDF personnel were not involved in the planning, preparation or execution of this operation. We will not discuss it further.
    3. Alawuddin. It is alleged that Alawuddin was killed in a targeted killing on 23 May 2011.15 It is correct that Alawuddin was killed in an operation (albeit on 20 May), but contrary to the allegations in the book, NZDF personnel were not involved in its planning, preparation, or execution. Again, we are confident of this on the basis of material we have reviewed. We will not discuss this operation further.
    4. Abdullah Kalta (Objective Burnham). It is alleged that Abdullah Kalta was killed in a targeted air strike, along with five other people, on 21 November 2012.16 We will address this operation in the context of our discussion of targeted killings in chapter 7.
  14. The Inquiry is established

  15. The Inquiry was established by the Attorney-General, Hon David Parker, on 12 April 2018 as a government inquiry under s 6(1)(c) of the Inquiries Act 2013. The purpose section in the Inquiry’s Terms of Reference identifies “the allegations of wrongdoing by NZDF forces in connection with Operation Burnham and related matters” as the matter of public importance that the Inquiry is directed to examine.17 The purpose section goes on to state that the Inquiry “will” do a number of things, one of which is to “[s]eek to establish the facts in connection with the allegations of wrongdoing on the part of NZDF personnel during the Operations”.18 Then, under the heading “Scope of the Inquiry”, the Terms of Reference list 10 matters that the Inquiry will inquire into and report on “having regard to its purpose”.19
  16. While the Inquiry has the power to make findings of fault, it has no power “to determine the civil, criminal, or disciplinary liability of any person”.20 That does not, of course, prevent the Inquiry from expressing a view about New Zealand’s obligations as a State, either under relevant treaties to which it is a signatory or under customary International Humanitarian Law. A further limitation on the Inquiry is that the Terms of Reference state that it “has no jurisdiction to make determinations about the actions of forces or officials other than NZDF forces or New Zealand officials”.21 This limitation is particularly significant, as we now explain.
  17. Like many other operations under the umbrella of ISAF at the time, Operation Burnham was a joint operation, involving not only the NZSAS contingent (known for ISAF purposes as Task Force 81 or TF81), but also Afghan ground forces and United States air support (including most relevantly two AH-64 Apache attack helicopters and an AC-130 Spectre gunship).22 Most of those killed and wounded on Operation Burnham died or suffered injuries as a result of fire from the Apaches and the AC-130. To give a coherent account of Operation Burnham, the Inquiry has had to describe all that happened on the operation, including what the air assets did; but the Inquiry may not (and does not) make any determinations about the actions of the non-New Zealand forces or officials. As set out in chapter 8, an investigation carried out under the United States Army Regulations determined that all engagements by the United States air assets appeared to be consistent with the applicable rules of engagement and the relevant Tactical Directive.23
  18. The Inquiry’s processes

  19. The Inquiries Act was enacted in 2013 following a Law Commission report entitled A New Inquiries Act.24 The Act was intended to “reform and modernise the law relating to inquiries” by (among other things) “enabling those inquiries to be carried out effectively, efficiently and fairly”.25 The Law Commission Report, and Parliamentary debates as the Inquiries Bill went through the House, indicated that one of the Act’s purposes was to give inquiries greater flexibility in selecting processes that best fitted their particular circumstances.26 There was a perception that inquiry processes under the previous legislation had become overly legalistic and adversarial in nature, making them unnecessarily costly and time-consuming.27
  20. An inquiry established under the Inquiries Act has a wide discretion as to what procedures it adopts, as we explained in Minute No 4 and in Ruling No 1. However, in determining its procedure, an inquiry must take into account the principles of natural justice and have regard to the need to avoid unnecessary delay or cost in relation to public funds, witnesses or other persons participating in the inquiry.28
  21. The Inquiries Act provides for the designation of “core participants”.29 Persons designated as core participants are entitled to give evidence and make submissions to the inquiry “subject to any directions of that inquiry as to the manner in which evidence is to be given and submissions made”.30 Notably, an inquiry may not order general discovery31 and a core participant does not have the right to obtain information provided to the inquiry by other core participants (or anyone else); but an inquiry may order such disclosure32 particularly where it is necessary to meet natural justice obligations.33 At the outset, the Inquiry designated NZDF, Mr Nicky Hager, Mr Jon Stephenson and three Afghan villagers from Tirgiran Valley as core participants.34 As we discuss further below, the Afghan villagers withdrew from the Inquiry in June 2019.
  22. The processes which the Inquiry adopted for handling material and taking evidence were intended to reflect three important considerations in particular:
    1. most of the potential witnesses had legitimate claims for various reasons to anonymity and confidentiality;
    2. much of the documentary material provided to the Inquiry was classified or subject to obligations of confidentiality (for example, to foreign governments or organisations and to sources who assisted Mr Stephenson); and
    3. the Inquiry had to be as open as possible given the public interest in its subject matter, albeit against the background of the two constraints mentioned in (a) and (b) above.

    In addition, the Inquiry had to be alert to the requirements of natural justice, as required by the Inquiries Act.

  23. Exercising its judgement as best it could after hearing submissions at a public hearing, the Inquiry determined that:35
    1. it would treat witnesses as witnesses of the Inquiry rather than as witnesses of any particular core participant;
    2. most of the oral evidence would have to be given in private and tested by the Inquirers and Counsel Assisting, given the constraints referred to in paragraphs [19](a) and (b); and
    3. legal issues could be addressed in public hearings, at which the core participants could make submissions.

    In addition, the Inquiry had earlier decided that it would establish an independent review process to examine the classified material provided to it to assist in identifying what could be publicly disclosed.36

  24. The Inquiry went ahead on the basis outlined. It held three public hearings on “modules” which addressed particular legal topics that were relevant to the determinations it had to make.37 The presentations and submissions at these public hearings were of considerable assistance. They informed our thinking in a variety of ways.
  25. Most of the evidence heard by the Inquiry was taken in private, including evidence from Mr Hager and Mr Stephenson, and is subject to confidentiality orders. The evidence of NZDF and other government agency personnel, both present and former, was taken in accordance with the Inquiry’s Witness Protocol.38 This involved Counsel Assisting, Ms Kristy McDonald QC and Mr Andru Isac QC, interviewing the witnesses to prepare “will say” statements, which then formed the basis of witnesses’ evidence to the Inquiry. Witnesses’ oral evidence was recorded and, in most cases, transcribed. The Inquiry did not hear oral evidence from all those interviewed by Counsel Assisting. Those who did not give evidence directly to the Inquiry were deposed by Counsel Assisting under delegation from the Inquiry.39
  26. The evidence-gathering process which we have just outlined met a concern that non-Crown core participants had raised with the Inquiry at an early stage. The concern was that if NZDF was left to brief and lead evidence from its present and former personnel as normally occurs in litigation, there was a risk that the evidence could be “shaded” or “shaped” in the process, whether consciously or unconsciously. From the Inquiry’s perspective, this was not a concern limited to NZDF—it applied more generally. In any event, Counsel Assisting were confident at the end of the process that the NZDF and related witnesses from whom they took “will say” statements gave their unvarnished accounts, uninfluenced by NZDF—a confidence shared by the Inquiry. The Inquiry acknowledges NZDF’s “hands off” approach to this evidence-gathering process.
  27. An exception to the Inquiry’s approach to taking evidence occurred in relation to evidence from NZDF personnel on the topic of the alleged “cover-up”. This evidence was heard in public session (Public Hearing Module 4) on 16–19 September and 15, 16 and 18 October 2019, for reasons which we explained in Minute No 19.40 This involved NZDF briefing the relevant witnesses, filing the briefs in advance and leading their evidence at the hearing. Counsel Assisting then examined the witnesses, followed by Mr Davey Salmon, Counsel for one of the non-Crown core participants, on a time-limited basis. Following that, Counsel for NZDF re-examined the witnesses, after which the Inquirers asked any questions they had.
  28. Finally, in February 2020, the Inquiry undertook a natural justice process with affected persons. This involved identifying potentially adverse provisional findings and making relevant parts of the draft report available to the affected persons so that they were aware of the basis for the potential findings and could comment on them. All but one of the affected parties made submissions.
  29. At the same time, the Inquiry made its draft report available to the core participants for comment. The Inquiry had intended to give the core participants the opportunity to make oral as well as written submissions on the draft report. Shortly before the hearings were to take place, however, the COVID-19 pandemic lockdown occurred. As a consequence, the proposed hearings were abandoned and the core participants were given the chance to provide further written submissions covering any points that they had intended to cover orally.
  30. As a consequence of the natural justice process and the submissions from core participants, the Inquiry made changes to the content of the draft report and to some of its provisional findings and recommendations. As should be obvious, it is the Inquiry’s final report that sets out the views the Inquiry ultimately reached.
  31. Besides analysing the relevant documentation (most of which was classified), conducting interviews and taking oral evidence, the Inquiry undertook extensive research into open source information including, for example, satellite imagery, reports of Afghan government agencies and international organisations, and media reports from inside and outside Afghanistan. The Inquiry had access to specialist expertise and assistance of the highest quality in relation to all facets of its work, for which we express our immeasurable gratitude.
  32. The Inquiry also acknowledges the assistance it received from the book’s authors, both of whom made helpful submissions on legal and factual matters. We are particularly indebted to Mr Stephenson who, from an early stage, provided valuable assistance in connecting us with some of his important sources and making the results of his extensive researches available to us.
  33. The Inquiry’s reporting date extended

  34. In its Terms of Reference, the Inquiry was given a year from the date of its establishment to investigate and report (that is, by 12 April 2019). However, it soon became apparent that this timeframe was insufficient to allow the Inquiry to complete its work, for reasons we summarise below. Accordingly, the Inquiry sought an extension until 31 December 2019 and an increase in its budget, both of which were granted. It then became necessary to obtain further extensions to its reporting date, until, ultimately 17 July 2020, although without any further budget increases.
  35. A number of factors led to the extension requests. The fact that most of the documentary material relevant to the Inquiry was classified, and that much of it contained information supplied by overseas partners, created real difficulty for the Inquiry, both administratively and substantively. On the administrative side, beyond the usual challenges involved in setting up a new organisation, the Inquirers had to obtain security clearances; the Inquiry had to obtain premises (or access to premises) capable of handling classified material; and most Inquiry staff had to obtain security clearances. This was a time-consuming and demanding exercise. We acknowledge the assistance we received from government agencies with these matters, particularly the Department of Internal Affairs; New Zealand Security Intelligence Service; Government Communications Security Bureau; Ministry of Justice; and Ministry of Business, Innovation and Employment.
  36. Once the logistical issues were resolved, the Inquiry had to develop, publish and hear submissions on the processes it considered would accommodate the interests identified at paragraph [19], and then make final decisions. Overall, this work took many months. In particular, the Inquiry’s determinations in relation to its processes were not finalised until December 2018, after a public hearing held on 21–22 November 2018.41
  37. On the substantive side, the provision of classified documents and information to the Inquiry by government agencies took far too long. We accept that government agencies holding relevant classified material, particularly material provided by overseas partners, had a legitimate interest in being satisfied that the Inquiry’s processes for handling classified information were robust and complied with the government’s Protective Security Requirements.42 However, at an early stage, the Inquiry made clear that it would regard itself as bound by those requirements.43
  38. We consider that government agencies did not take adequate steps to facilitate the production of relevant partner and domestic material to the Inquiry as soon as they could have. For instance, they could have started to collate relevant material soon after the Inquiry was established in April 2018, given it was inevitable that the Inquiry would require access to such material. We note that the Inquiry was still receiving relevant material from NZDF and others in June 2020, shortly before the Inquiry was due to report. Some of this material only came to light as a result of the public hearing on the “cover-up” allegations; other previously undisclosed material came to light during the natural justice process. We found this disappointing because specific requests had been made for some of this material much earlier (in particular, a notebook kept by a senior officer in Afghanistan), but it was not provided at the time. The result is that the Inquiry cannot be confident that it has received all relevant material.
  39. We are not suggesting that NZDF and other government agencies acted in bad faith or were attempting to delay the Inquiry. NZDF advised us that it had to review hundreds of thousands of items to seek out relevant material, which was a time-consuming and resource-intensive process. NZDF also said that it found the iterative nature of the Inquiry’s work challenging in this context. But this does illustrate a problem that will be highlighted in subsequent chapters, namely that NZDF had a number of different systems, with the result that it was not able to find relevant material readily—nor could it be sure that the Inquiry had been provided with all relevant information.
  40. We note that the Inquiry has had access to a range of overseas partner-sourced material, much of it in the possession of New Zealand agencies when the Inquiry was established. New Zealand agencies refused to disclose overseas partner information to us without the consent of the relevant overseas partner, on the basis that it had been provided to New Zealand agencies in the first instance under obligations of confidence. We had some difficulty with the idea that Crown agencies would refuse to provide relevant overseas partner-sourced material in their possession to a government Inquiry without the consent of the relevant overseas partner, particularly as the Inquiry had agreed to meet the Protective Security Requirements.
  41. Although the Inquiry did eventually obtain access to this material, the process of obtaining overseas partner consent sometimes took what was, from the Inquiry’s perspective, an excessively long time—in one instance, a week short of six months. This impacted the Inquiry’s ability to make timely progress on some issues. In several instances, material was made available to the Inquiry only in a redacted form. While we are grateful to the overseas partners for granting consent, this raises issues to which we return in chapter 12.
  42. Finally, we acknowledge the cooperation of the Crown Agencies44 in the process the Inquiry established for the review of classified material. That review was designed to identify what of the classified material could be disclosed publicly, either in whole or in redacted form. The establishment of the review process reflected two things:
    1. first, the fact that the need for material to remain classified is not kept under review on any systematic basis, despite such reviews being required by the Protective Security Requirements; and
    2. second, the Inquiry’s desire to make public as much of the information available to it as it properly could.

    The classification review process was led by the Inquiry’s independent reviewers, Mr David Johnstone and Mr Ben Keith. As a result of their work, much previously classified material has been disclosed publicly.45 This was only possible with the considerable cooperation of the agencies, for which we are grateful.

  43. Particular challenges faced by the Inquiry

  44. As noted above, the Inquiry faced a number of challenges in preparing its report. These included, among others, challenges resulting from the quantity of classified information and material sourced from overseas partners, the legitimate claims of witnesses to confidentiality and the need to have as much of the Inquiry’s work as possible visible to the public, which we address in more detail below.

    An iterative process

  45. The first challenge was the iterative nature of the investigative process. As we noted in paragraph [13], the Inquiry’s Terms of Reference list 10 specific matters which the Inquiry is to investigate. Those, interpreted in light of the Inquiry’s purpose, provided the framework for the Inquiry’s investigations.As the Inquiry progressed, issues that seemed important initially turned out to be uncontentious. For example, the precise location of Operation Burnham appeared at the outset to be a matter in dispute, but it quickly became obvious that there was no room for dispute. Other contentious issues (such as whether there were insurgents in the villages during Operation Burnham) were readily resolved during the Inquiry for a range of reasons. Some issues, then, fell away, which required some modification to the Inquiry’s work.
  46. Further, new issues were exposed as the Inquiry progressed. In part, this resulted from the Inquiry obtaining new material from NZDF or other government agencies, in some instances well after the material should have been provided. On occasion, this meant that the Inquiry had to request further material from agencies or obtain further information from witnesses. As noted earlier, one example was the public hearing on the alleged “cover-up”. That threw up a number of new matters from the Inquiry’s perspective and meant that it had to request further documentation and seek further evidence. As we have already mentioned, during the natural justice process we learnt of the existence of information that should have been provided to us much earlier. This led to further information requests and the need to re-write significant parts of the draft report. At times, this became frustrating.
  47. In summary, while some issues fell away, new ones emerged. The Inquiry had to adjust its work to take account of this. In general though, the issues became more focused as the Inquiry progressed and this allowed us to hone in on what was truly in contention.
  48. The Afghan villagers

  49. Second, the Inquiry was conscious that it would face special challenges in taking evidence from the Afghan villagers. Three villagers had issued judicial review proceedings challenging the decision of the previous New Zealand Government not to hold an inquiry.46 Those proceedings were discontinued when the new Government decided to establish this Inquiry. The Inquiry accorded core participant status to the three villager applicants in the proceedings. As such, they were entitled to give evidence and make submissions to the Inquiry, subject to any directions from the Inquiry about the way this should be done.47
  50. In March 2019, the three villagers with core participant status issued judicial review proceedings challenging the Inquiry’s determination as to process. They applied for interim relief aimed at preventing the Inquiry from holding any further hearings pending determination of their substantive application for review. They also sought permission to administer interrogatories to the Inquiry. The latter application was rejected48 and, ultimately, the villagers discontinued their proceedings.
  51. Initially, we assumed that we would need to hear from the three villagers (and other Afghan villagers) directly. We considered how to do this, against the background that they were vulnerable witnesses and we needed to accommodate security, cultural, psychological and other issues.49 We then thought that we might not need to take evidence directly from the villagers but, rather, could rely on the information already available about what the villagers said had occurred, including what they told Mr Stephenson in his interviews with many of them.50 However, after receiving submissions on that suggestion and considering the matter further, we decided that we did need to hear from the villagers directly. As a result, we indicated that one of us would travel to Kabul to hear the villagers’ accounts, with the assistance of a local law firm in Kabul.51
  52. Shortly after (in mid-June 2019), the lawyers for the villagers, McLeod & Associates, advised that their clients were withdrawing from the Inquiry.52 The reasons given were that the villagers had been sceptical about New Zealand authorities and their legal processes from the start. Their view that the Inquiry’s processes had marginalised them had reinforced their scepticism. Counsel advised that their clients had lost confidence in the Inquiry and its processes and were no longer willing to participate in it.
  53. The Inquiry found this a puzzling and disappointing decision, especially because the villagers had issued judicial review proceedings in 2017 aimed at having an inquiry established and had stated in their supporting affidavits that they wished to speak to the investigators about what had happened to them. Although disappointed by the villagers’ decision, we were able to gather accounts from some people who were in the villages during Operation Burnham and who expressed a desire to engage with the Inquiry. This was done through a law firm in Kabul. The firm also made various other enquiries in Afghanistan at the Inquiry’s request. Care was taken to ensure that no one was put at risk in this process.
  54. Maintaining public confidence

  55. A further major challenge was maintaining public confidence in the outcome of the Inquiry, given that we had decided that much of the evidence from NZDF personnel and related witnesses would have to be taken in private and that much of the classified material could not be disclosed to the public or the non-Crown core participants. Some commentators drew the immediate conclusion that the Inquiry would be a “whitewash”.
  56. Obviously, neither of the Inquirers had any interest in participating in a whitewash, and we did not. We did what we could to promote public understanding of what the Inquiry was doing and the issues it was addressing. This included:
    1. disclosing much previously classified material on the Inquiry’s website;
    2. holding public hearings concerning the Inquiry’s processes and on significant legal and factual topics, including a public hearing in September/October 2019 on the “cover-up” allegations;
    3. publishing submissions received for these hearings, the transcripts of what took place at them, and the associated Minutes and Rulings; and
    4. publishing periodic progress reports on the Inquiry’s website.

    In the result, we consider that interested members of the media and the public will have been able to follow the Inquiry’s work reasonably well.

  57. A public report?

  58. The writing of this report was also affected, as we have said, by the constraints resulting from most of the witnesses’ evidence being protected by confidentiality orders and much of the material before the Inquiry being classified. We were concerned to produce a report that the Attorney-General could, if he wished, make available to the public. To achieve this, the Inquiry had to be careful to write the report in a way that addressed the issues in sufficient detail to provide a proper explanation to the public but did not compromise legitimate security and confidentiality concerns.
  59. Given that the matters at issue occurred a decade ago, the Inquiry considered that the security interests were not so much in the information obtained but rather in:
    1. the particular methods by which information was obtained (that is, the capabilities of NZDF and intelligence agencies);
    2. the identity of individuals who provided information (disclosure of which might endanger their safety); and
    3. closely protected strategic, tactical and operational information that may have value to opposing forces and others in the future.
  60. As we have said, the Inquiry had access to relevant material sourced from overseas partners that had originally been provided to New Zealand agencies on a basis of confidence. Whether we have been able to make that material available to non-Crown core participants or the public has, as a practical matter, depended on whether the relevant overseas partner has been prepared to give its consent. While consent was granted in respect of some matters, ultimately we were not able to make available to non-Crown core participants and the public as much overseas partner-sourced material as we would have wished. We comment further on this in chapter 12.
  61. Accordingly, the report is written in a way that seeks to protect information that is classified or was provided in confidence yet provides a coherent account of relevant factual matters. Where we have relied on material that is unclassified or has been declassified, or on evidence that was given in public session, we have attempted to footnote it. However, we have not referenced classified material (which has been “gisted”) or oral evidence provided in confidence. Where we have referred specifically to oral evidence given in confidence, we have obtained the consent of the relevant witness.
  62. In the result, we believe that we have managed to write a report that is sufficiently detailed and comprehensive to explain the conclusions we have reached yet accommodates legitimate security and confidentiality interests.
  63. We appreciate that our inability to share classified and confidential material with the public, or even with non-Crown core participants, may be frustrating for those who have taken a close interest in these events over the years. This must be particularly so for the authors of Hit & Run, given that the report does not accept allegations they made about the conduct of NZDF forces during Operations Burnham and Nova, in part on the basis of objective53 and witness evidence not available to them. Unfortunately, that is part of the reality of an inquiry such as this.
  64. Inquiry by the Inspector-General of Intelligence and Security

  65. Before this Inquiry was established, the then Inspector-General of Intelligence and Security (IGIS) began an inquiry of her own motion into the roles of the New Zealand Security Intelligence Service and the Government Communications Security Bureau in relation to specific events in Afghanistan from 2009 to 2013, including Operation Burnham. Given that there was a degree of overlap between the two inquiries, we agreed a Memorandum of Understanding with the IGIS as to how we would interact.54
  66. We had regular meetings with the IGIS, which we found helpful. We have attempted to write the Inquiry’s report in a way that does not impinge on the work of the IGIS, but refers to her findings where appropriate. We note that the IGIS’s public report will be available around the same time as the Inquiry’s report.
  67. The Inquiry’s report

  68. This report sets out the Inquiry’s views on the matters we were asked to investigate. The structure of the report is as follows:
    1. Chapter 2 describes the background to the deployment of New Zealand forces to Afghanistan. We deal with the decisions to deploy the NZSAS initially in 2001 (and the NZPRT in 2003), and later the NZSAS in 2009 on Operation Wātea, during which the operations at issue occurred. This chapter also outlines two important features of New Zealand’s constitutional arrangements—civilian control of the military and ministerial responsibility to Parliament—and addresses the question of whether there was ministerial authorisation for Operation Burnham.
    2. Chapters 3 to 6 relate to Operations Burnham and Nova. Chapter 3 describes the planning and preparation for Operations Burnham and Nova, while chapter 4 outlines what happened on the two operations. Chapter 5 considers whether there were insurgents in the villages at the time of Operation Burnham and addresses the consequences of Operations Burnham and Nova, in particular whether there were civilian casualties and the extent of property damage. Chapter 6 sets out the relevant principles of International Humanitarian Law (or the Law of Armed Conflict) and discusses their application to the facts of Operations Burnham and Nova.
    3. Chapter 7 deals with issues relating to targeting killings and the JPEL. It also discusses the air strike that killed Abdullah Kalta in 2012.
    4. Chapters 8 and 9 deal with the allegations of a “cover-up” by NZDF. We focus on how NZDF responded to allegations of civilian casualties on Operation Burnham, both initially and in subsequent years. The facts are set out in chapter 8 and our assessment of them in chapter 9.
    5. Chapters 10 and 11 deal with the capture and detention of Qari Miraj on Operation Yamaha. Chapter 10 explains New Zealand’s policy on detention at the relevant time and the legal context, specifically the law relating to states’ obligations in respect of torture and its prevention. Chapter 11 sets out the facts of Qari Miraj’s capture; addresses allegations that he was assaulted by TF81 personnel and later tortured while in NDS custody; and analyses the circumstances of his capture to determine what obligations New Zealand owed to him at the time.
    6. Chapter 12 looks to the future and sets out our recommendations and observations.

1 In 1999 the United Nations Security Council passed a resolution designating al-Qaida and the Taliban as terrorist groups: SC Res 1267 (1999).

2 The background is more fully set out in chapter 2.

3 SC Res 1386 (2001).

4 SC Res 1401 (2002).

5 There were other contributions, for example, the deployment of New Zealand Police personnel.

6 Sir Angus Houston “The military context” (Public Hearing Module 1, 4 April 2019) at 13.

7 “Inquiry into death will examine soldier safety” Otago Daily Times (Dunedin, 6 August 2010).

8 The name given to the operation at the time was Operation Rahbari. One of the targets of the operation, an insurgent leader named Abdullah Kalta, was given the name “Objective Burnham”. The name “Operation Burnham” has now been widely adopted, so the Inquiry will also use it. It should be borne in mind, however, that the publicly available contemporaneous documentation will refer to “Operation Rahbari” and “Objective Burnham”. “Operation Rahbari” was also used at the time to refer to the second operation, which is now commonly called “Operation Nova” (the primary target of that operation being Maulawi Neimatullah, known as “Objective Nova”).

9 See paragraph [12].

10 Nicky Hager and Jon Stephenson Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour (Potton & Burton, Nelson, 2017).

11 At 91.

12 CDF Ops Brief Op Watea 31 May 2011 (31 May 2011) (Inquiry doc 11/29).

13 NZPRT Bamyan Daily Intsum 154-11 (4 June 2011) (Inquiry doc 10/30) at [5].

14 See, for example, Afghanistan Independent Human Rights Commission “Attacks against Hazaras in Afghanistan” <www.aihrc.org.af>.

15 Hager and Stephenson, above n 10, at 91.

16 At 92–93.

17 Terms of Reference: Government Inquiry into Operation Burnham and related matters (11 April 2018), cl 5. The full text of the Inquiry’s Terms of Reference is set out in Appendix 1.

18 Clause 6.1.

19 Clause 7.

20 Inquiries Act 2013, s 11; Terms of Reference, above n 17, cl 13.

21 Clause 9.

22 Other supporting air assets were involved as well. We use the term “air assets” frequently throughout this report. This term reflects military usage and is a comprehensive term for aircraft of all types.

23 See chapter 8 at [40][43].

24 Law Commission A New Inquiries Act (NZLC R102, 2008).

25 Inquiries Act, s 3.

26 Law Commission, above n 24, especially at [1.18]–[1.28].

27 Especially at [1.18]–[1.28].

28 Inquiries Act, s 14(2); Minute No 4 (14 September 2018) at [46] and [60]–[66]; Ruling No 1 (21 December 2018) at [13].

29 Section 17.

30 Section 17(3).

31 Section 22(1)(b).

32 Section 22.

33 Sections 14(2) and (3).

34 The three Afghan villagers designated as core participants were represented by McLeod & Associates, two of whom were present on the night of Operation Burnham. McLeod & Associates also acted for a further 19 villagers connected to the Operation Burnham events.

35 Ruling No 1 (21 December 2018) at [79], [82]–[85].

36 See Minute No 4, above n 28, at [27].

37 See Minute No 11 (22 March 2019), Minute No 12 (25 March 2019) and Minute No 17 (27 June 2019). The Inquiry held five public hearings in all, totalling 14 days of hearing time. The other two hearings dealt with the procedures the Inquiry would follow and the “cover-up” allegations.

38 Minute No 4, above n 28, at Appendix 1: Witness Protocol.

39 Inquiries Act, s 21.

40 See Minute No 19 (18 July 2019).

41 See Ruling No 1 (21 December 2018).

42 The Protective Security Requirements (PSR) is a policy framework that outlines the government’s expectations for security governance and for managing personnel, physical and information security. Government agencies are expected to adopt the PSR and meet its mandatory requirements. More information can be found at <protectivesecurity.govt.nz>.

43 See Minute No 4, above n 28, at [5].

44 As we describe later in the report, the Crown Agencies made submissions to the Inquiry on various topics. They were represented by the Crown Law Office and comprised New Zealand Security Intelligence Service, Government Communications Security Bureau, Ministry of Foreign Affairs and Trade, Department of Prime Minster and Cabinet and Ministry of Defence.

45 A total of 423 previously classified documents were made publicly available.

46 AV1 v Attorney-General Wellington CIV-2017-485-000675.

47 Inquiries Act, s 17(3).

48 K & G v The Government Inquiry into Operation Burnham and Related Matters [2019] NZHC 854.

49 See Minute No 10 (20 March 2019), Minute No 14 (29 April 2019), Minute No 15 (17 May 2019) and Minute No 16 (4 June 2019).

50 See Minute No 14, above n 49.

51 See Minute No 16, above n 49.

52 RE Harrison QC and DA Manning Memorandum of Counsel for Former Residents of Khak Khuday Dad and Naik as to Withdrawal from the Inquiry Submission to Inquiry (18 June 2019).

53 We use the term “objective evidence” to refer to imagery, video footage, audio tapes and such like.

54 Sir Terence Arnold and Cheryl Gwyn “Memorandum of Understanding between Inquiry into Operation Burnham (the “Inquiry”) and Inspector-General of Intelligence and Security (the “IGIS”)” (16 November 2018).

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