Media release 31 July 2020, Nicky Hager
“The Operation Burnham Inquiry report, released today, concludes that a child was killed and other civilians were injured during Operation Burnham and that NZSAS officers denied and hid evidence of the civilian casualties. It finds a prisoner was handed over to torture and the same prisoner was assaulted by an NZSAS trooper. Thus, after nearly ten years of denials, the Inquiry has confirmed the main allegations in the book Hit & Run.” The report says the book has “performed a valuable public service” (12/103).
“The report goes further than the book and finds that named SAS officers hid and denied evidence of civilian casualties following Operation Burnham”. (see below)
“The report contains the most serious criticism of the NZSAS and NZDF in their history. This should prompt a lot of soul searching inside the New Zealand Defence Force.”
“The report also recommends some major changes to NZDF. This is a huge achievement. It is very important that New Zealand is prepared to investigate wrongful actions by its military, thoroughly and independently. The Operation Burnham Inquiry has done that,” he said. Mr Hager welcomes the findings and recommendations. “I thank the commissioners and their staff for two years of hard work.”
“I am very, very pleased. This is a tremendously important result.”
“At the same time, the public should know that the Inquiry process was difficult and highly unequal. NZDF and other agencies spent millions of dollars of public money trying to deny any wrongdoing, while the authors and public were not allowed to see and contest the agencies’ secret submissions and evidence. Military officers were repeatedly given the benefit of the doubt; but not so the villagers. It was not a fair process.”
“However this makes it all the more significant that the Inquiry has confirmed the main allegations in the book. Moreover, the government has accepted the report’s recommendations, which is very important. These changes will strengthen civilian control of the military in the years ahead. The report:
Confirms civilians were killed and injured (and did not reach a decision for most other deaths whether or not they were civilians)
Confirms a child was killed (Mr Hager and the Inquiry differ over whether there is “sufficient evidence” to be sure she was called Fatima) (5/93)
Confirms that reports of civilian casualties were denied and hidden by named SAS officers
Confirms NZDF did not give aid to the wounded (Mr Hager and Inquiry differ on whether it was legally obliged to do so (6/144)
Confirms the NZDF mission failed in its objective; the troops did not capture or kill either of the insurgent leaders they were seeking
Confirms NZDF failed to investigate civilian casualties (9/149)
Confirms no weapons were fired at the NZ-led forces at any stage of the operation (5/38)
Confirms that, contrary to NZDF claims, the raid occurred in the two villages named in the book, Naik and Khak Khuday Dad (3/4)
Confirms that both target houses were burned during the raid, and one of them was further damaged at a later date (however Mr Hager and the Inquiry disagree over whether this was deliberate)
Confirms the NZSAS breached the Geneva Conventions by handing over a prisoner to torture (11/144)
Confirms an NZSAS trooper assaulted a prisoner while bound and blindfolded, again breaching the Geneva Conventions (10/28)
Confirms Ministers were misled by NZDF (eg ch 1, clause 7.5.2)
Finds the NZDF response to reports of civilian casualties was “deeply troubling”, reflecting conduct and events over a number of years (9/1)
Finds a “surprising level of ineptitude and disorganisation within NZDF Headquarters” (9/165)
“This is an extremely serious list of findings.”
Severe criticism of NZSAS officers for hiding and denying civilian casualties
“Four former commanding officers of the NZSAS are found to have acted improperly. This is unprecedented.” The officers are:
1. Brigadier Chris Parsons (NZSAS commanding officer 2010): when he sent a “seriously misleading” email (1/76(a)) from Afghanistan saying that there was no evidence of civilian casualties, his position was “implausible” (9/27), “fundamentally inconsistent” with what he knew (9/30), it was a “serious failure” (9/63), and “unreasonable and unacceptable”(9/63). He directed a subordinate to remove words from a report that acknowledged civilian casualties (9/51). His actions were “inexcusable” (9/70) and the commissioners said “we do not accept his denial”. (9/69) Parson’s quietly left his job as New Zealand’s defence attache to London after the draft inquiry report was circulated.
2. Peter Kelly (NZSAS commanding officer 2004-6, Director of Special Operation 2009-11) produces a ministerial briefing paper denying civilian casualties that was “inaccurate in fundamental respects” (9/74) and “misleading” (9/158), despite it being “contradicted by other information available to NZDF, including video footage, intelligence reporting and ISAF’s own media releases” (ch1, clause 7.5.3.) He told the Inquiry he was unaware of a second US civilian casualty investigation but his own email shows he knew about it (9/78-79).
3. Jim Blackwell (NZSAS commanding officer 2006-9, Director of Special Operations 2011-15): the Inquiry members “do not accept his account” of how he obtained a report on civilian casualties that he quietly deposited in an NZDF safe (9/89 and 99). They do not believe him when he said he had told other NZDF officers about the report (9/100). They were “concerned” that he “failed to mention in his evidence that he visited Afghanistan” (9/93). He appears to have misled the Inquiry.
4. Tim Keating (NZSAS commanding officer until 2001 and Chief of Defence Force 2014-18) His claims publicly and to ministers that Hit & Run was not about an operation NZDF conducted were “implausible” (9/136) and “ignored, unfairly, what was accurate in the book” (9/137). Keating had “erred in giving the prominence he did to the location errors in Hit & Run and not acknowledging that the book was accurate in important respects” (9/133).The report adopts the names of the villages used in the book as the location of Operation Burnham (3/4), contradicting Keating.
Chapters 8 and 9 on the “cover up” are deeply embarrassing for the NZSAS and NZDF. This includes finding that someone in the SAS had deleted a video of the child’s funeral off the SAS computer system (see “Other important parts of the report” below).
NZDF lobbied the Inquiry recently with an “expert opinion” trying to disprove that the funeral video showed the wrapped corpse of a child (9/167). Mr Hager says this gives the public a picture of the way NZDF has fought the Inquiry from beginning to end. Disputing a dead child, who had already been conceded by the Chief of Defence Force, is “astonishingly bad taste”, he said. It seems the Inquiry thought so as well: it restated its opinion that the video showed a child and asked why NZDF had not done “this style of forensic analysis” immediately after Operation Burnham (ie to investigate the reports of a dead child). Mr Hager: “We get an unattractive snapshot of NZDF, just in recent months, using yet more public money to try to deny the child was killed. I doubt many NZDF staff will support this behavour.”
Errors in the book accepted
“The Inquiry report acknowledges the difficulty of researching the long-hidden subject and unsurprisingly finds some errors in the book relating to Operation Burnham. Mr Hager has agreed with the Inquiry about various errors identified, including acknowledging that three men were seen carrying weapons on video he obtained under the US Freedom of Information Act. The book also appears to have had the age of the child Fatima wrong and several photos used as illustrations in the book, including of the child, are incorrect. Fortunately these errors are minor compared to the main findings.”
“’The main force of the Hit & Run allegations does not start until chapters 8-12 of the Inquiry report: the actions of SAS officers in response to reports of civilian casualties and the abuse of a prisoner. The book is found to be correct on nearly every point here. This is what the Hit & Run title of the book was about: NZDF not investigating the reports of civilian casualties (which appeared twice in the New York Times) and instead trying to pretend nothing had happened.
Claimed errors not accepted
There are other issues where Mr Hager does not agree with the Inquiry. “We were never going to get every point over the line, against an army of lawyers and massive resources.”
Mr Hager does not agree with the report on the dead child’s name, whether the acknowledged burning and blowing up of insurgents’ homes was deliberate, and the civilian status of various unarmed people who were killed, including four unarmed men shot in a separate valley and an unarmed man shot by an NZSAS sniper.
The chapter 1 summary of findings gives a very one-sided account of these issues. Of the five “key allegations” on Operation Burnham listed in Chapter 1 (para 9), the report finds the book correct or largely correct on three, 9(b), (d) and (e), we disagree on 9(c) and we had already conceded 9(a) last year.
Mistreatment of a prisoner
The report devotes chapters 10 and 11 to the subject of mistreatment of a prisoner, agreeing in full with the allegations in the book about torture and assault. It finds that NZSAS delivered a prisoner to the NDS secret police in the knowledge that NDS was torturing prisoners. The prisoner was indeed tortured and when NZDF learned this it did nothing about it.
The report says delivering a prisoner to possible torture makes New Zealand in breach of international law. When NZDF heard about the torture, it had an obligation to report the torture and investigate it, but it did not (11/129). The report recommends that the government take action on these failures, including developing new policies, procedures and training programmes (Ch12, recommendation 4). This is a very important result.
Thanks to the key whistle blower
“The book and Inquiry would probably never have happened without the assistance of insiders. I especially thank my main confidential source – the person who first talked about “Operation Burnham” and a tortured prisoner called “Qari Miraj” – without whom the book would not have been written. It is an outstanding example of the importance of whistle blowers. Thanks to the numerous other people who helped, notably lawyers Deborah Manning and Simon Lamain who represented the affected villagers.