New Zealand's military conduct in its longest running war ever in Afghanistan is finally getting an official government inquiry. This has the real potential to open up a can of worms.

So far, the announcement of the Government's inquiry into Operation Burnham has been met with a great diversity of reactions. Hit & Run authors Nicky Hager and Jon Stephenson, and their supporters, have been "over the moon", as Hager put it. But this doesn't mean they don't have concerns about the inquiry.

Validity of inquiry disputed

Not everyone is happy to see the New Zealand defence forces being made accountable for the SAS raid in Afghanistan. Newstalk ZB's Tim Dower represents one strand of opinion in his argument that the military should never be criticised or investigated – see his column condemning the new inquiry: When it comes to military operations, I'm taking the word of our guys.

Dower makes the case that New Zealand soldiers were in Afghanistan to help the locals, and the chaotic nature of the conflict there meant "our guys were at a disadvantage from the get-go". He goes so far as to say that, even if New Zealand troops killed Afghans in a botched raid, "I'd rather it was one of them – even a civilian – than one of ours."

Newstalk ZB's political editor Barry Soper says that "in reality this was a firefight and unfortunately some innocents lost their lives, which tragically happens in war zones" – see: Little doubt in what SAS inquiry will come up with.

He expects the defence forces to be exonerated, on the simple basis that: "the allied forces were under fire and responded".

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Soper regards the inquiry as a "waste of money", saying "surely the money would have been better spent on the mould and leaks at Middlemore Hospital." This is a similar line to that being run by the National Party. It's defence spokesperson, Mark Mitchell, has come out strongly against the inquiry, reiterating that when National was in office it carefully considered the evidence and was in no doubt an inquiry wasn't needed. You can see his very good 10-minute interview with Breakfast TV's Jack Tame here: Inquiry into deadly NZ-led Afghanistan raid labelled a waste of taxpayers' money by National.

The New Zealand Defence Forces bosses remain confident they will be cleared by the inquiry. The head of the defence force, Lieutenant General Tim Keating, has 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".

This email was leaked to Stuff journalists – see Laura Walters' Over three hours of aerial footage of Afghanistan raid exists, NZDF says.

This reports that "Keating also said there was 'compelling material', which could not be publicly released, including intelligence reports and video footage, which supported what NZDF had publicly said about the raid."

Attorney General David Parker this week announced an inquiry into the allegations contained in the book Hit & Run. Photo / Mark Mitchell
Attorney General David Parker this week announced an inquiry into the allegations contained in the book Hit & Run. Photo / Mark Mitchell

How well has the inquiry been set up?

How any government inquiry is set up obviously 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 has been 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", and "I'm pleased that the issue of NZ involvement in transferring detainees to the Afghan secret police who are well known to torture detainees is going to be examined" – see Jo Moir and Henry Cooke's Author Jon Stephenson pleased with inquiry, but queries Govt 'muddying waters'.

This article also reports Stephenson's belief that witnesses would be dealt with appropriately: "He said the fact that the inquiry could take evidence under oath in secret and protect the identity of witnesses would mean his sources would be comfortable - particularly the ones who were serving at the time."

According to that article, the main issues that the terms of reference include are the following: "The allegations of civilian deaths. The allegation that NZDF knowingly transferred a man to a prison where he would be tortured. The allegation that soldiers returned to the valley to destroy homes on purpose."

There is one further, less publicised, focus of the inquiry, that has the potential to be even more explosive than the Hit & Run allegations: an examination of whether New Zealand soldiers were involved in assassination missions on behalf of other countries.

Here are the terms of reference relating to this: "7.9 Separate from the Operation, 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) and if so, whether this was or should have been a[[aren't to (a) NZDF who approved the relevant version(s) and (b) responsible Ministers."

Blogger No Right Turn has picked up on this, saying this "is a new and unpleasant issue, and highlights the dangers of letting foreigners decide when and in what circumstances NZ soldiers are allowed to kill" – see: Finally.

He adds: "We know that many of NZDF's allies (including the USA, UK and Australia) are not moral countries and their moral values around military action and assassination are deeply at odds with those of the New Zealand public (and with international law). It's not clear whether there's any allegation that NZDF soldiers have been involved in assassinations, but if they have, then they may have committed crimes under New Zealand and international law, for which they will need to be prosecuted."

Investigative journalists Eugene Bingham and Paula Penfold have worked on important stories about the 2012 Battle of Baghak, in which two New Zealand soldiers were killed in action. This controversy has been specifically excluded by the Government, which claims it has already been dealt with in an Army Court of Inquiry. Bingham and Penfold dispute this, and argue the inquiry needs to be considerably wider in scoop – see: Missing the target: The Government inquiry into Afghanistan raid.

The journalists give kudos to the Government for establish the new inquiry, but say "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. Those problems run very, very deep. A bold Government would have taken on these issues. Instead, it has wilfully turned a blind eye."

They argue an inquiry needs to look broadly at the NZDF's "lack of transparency and accountability. Of a culture of cover-up and obfuscation. And at the heart of it all are questions raised by families of fallen New Zealand soldiers in The Valley: why were we even in Afghanistan in the first place? What were we trying to achieve?"

Former National MP and Defence Minister Wayne Mapp outed himself as a major contributor to the Hit & Run book. Image / Rod Emmerson
Former National MP and Defence Minister Wayne Mapp outed himself as a major contributor to the Hit & Run book. Image / Rod Emmerson

Muddying the waters

In announcing the inquiry, the Attorney-General David Parker commented that he had been shown a US military video of the raid, and this "does not seem to me to corroborate some key aspects of the book Hit & Run". Parker stated: "The footage suggests that there was a group of armed individuals in the village" and that this contradicted how Hager and Stephenson had portrayed the village as "non-threatening". This is all best covered by Herald reporters Isaac Davidson, Lucy Bennett, Claire Trevett and David Fisher – see: Inquiry already prejudiced, say Hit & Run authors.

The first problem with Parker's actions is that he has refused to give further details, and has not secured the footage for the inquiry. Jon Stephenson believes Parker has pre-empted the actual inquiry: "In my view he's prejudiced the inquiry and he's provided that information without any context at all and refused to answer questions about it. He's just muddied the waters… He's essentially making statements that are prejudicial… Surely the professional and appropriate thing to do was to allow the inquiry to determine the facts, having heard all the evidence and render a verdict, not pre-empt that."

The must-read view on this is from Gordon Campbell, who sums up the situation like this: "at the outset of an independent government inquiry, the Attorney-General not only felt free to make unverifiable assertions about Hit & Run – but no guarantee can be given that even this august inquiry will be able to see the footage in question and draw definitive conclusions from it, either way.

It seems amazing that NZDF is able to screen this footage for lobbying purposes with politicians whenever it suits NZDF to do so, while claiming that national security concerns prevent it from sharing the same information with either the public, the media, or – potentially – even with the $2 million inquiry set up to clarify the matters in dispute. As I suggested to Parker yesterday, we seem to be getting off on the wrong foot here" – see: On the Hit&Run inquiry

It opens the government up to criticism that Parker was deliberately throwing a bone to the defence forces with his reference to the video footage. After all, the Government has reportedly been under strong pressure not to hold the inquiry.

Campbell's column is also essential reading for anyone with concerns about what could go wrong with the inquiry. He points to a myriad of issues and dynamics that might allow authorities to effectively keep the lid on this particular can of worms.

Finally, for satire from the past year on these issues, see my blog post, Cartoons about Hit & Run, and NZ in Afghanistan.