NZDF has admitted a "phraseology" error led it to telling former Prime Minister Sir John Key no civilians were killed in the controversial 2010 NZSAS raid.

NZDF's now says it is possible there were civilian casualties - a big shift from its assurance in 2010 "there is no way that civilian casualties could have occurred" in the controversial Operation Burnham raid in Afghanistan.

New documents released through the Official Information Act have now linked the cast-iron guarantee of no civilian casualties to confusion in 2010 that NZDF failed to correct until publication of the book Hit & Run.

NZDF has said at least one person was killed by NZSAS sniper fire, with nine "insurgents" in total killed during a raid supported by coalition aircraft.

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The book further alleged six civilians were killed and 15 injured in the raid.

The details on what the NZDF told the government have emerged after an investigation by the Office of the Ombudsman after the NZ Herald sought information held about Operation Burnham through the Official Information Act.

The new information seems to explain former Minister of Defence Wayne Mapp's confident assertion no civilians were killed when the NZSAS raid was first made public in 2011 during a television interview with TVNZ's Q&A.

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Journalists Nicky Hager and Jon Stephenson successfully called for a public inquiry in the book Hit & Run which alleged the death of civilians after a "revenge" raid by the NZSAS that NZDF then covered up.

It was alleged six civilians were killed and 15 others were wounded, leading to lawyers Rodney Harrison QC, Deborah Manning and Richard McLeod filing proceedings in the High Court on behalf of the villagers.

NZDF has rejected claims "revenge" motivated the raid and rejected suggestions the NZSAS were behind the deaths of any civilians. The previous government rejected calls for an inquiry but the new Labour-led administration this month said an inquiry would go ahead into the raid and its allegations.

An extraordinary briefing

The new documents show the NZDF declassified the operation just a few months after it took place and gave then-Prime Minister Sir John Key the go-ahead to speak publicly about the raid and the claim civilians were killed.

The documents show Key and Mapp made the decision to keep the details secret, not the NZDF.

New information released through the OIA reveal an extraordinary briefing by then-Chief of Defence Force Lieutenant-General Sir Jerry Mateparae to Key and Mapp on December 13, 2010.

Former Minister of Defence Dr Wayne Mapp, who was told no civilians were killed. Photo / Greg Bowker
Former Minister of Defence Dr Wayne Mapp, who was told no civilians were killed. Photo / Greg Bowker

The briefing stated its purpose was to provide Key and Mapp with "releasable information" about NZSAS raids in Baghlan province by the NZSAS in August and September 2010. The memo was given a security rating of "unclassified", meaning there was no perceived security risk associated with making the information it contained public.

While the information was made available by NZDF expressly to be made public, a handwritten note on the front of the memo stated: "PM and Min agreed not to release this information into the media."

The memo is extraordinary because it aimed to proactively release information about the NZSAS. NZDF is almost exclusively protective of any details about the elite unit being released publicly.

The memo stated that the raid was planned after the death of Lieutenant Tim O'Donnell in neighbouring Baghlan province, where New Zealand's Provincial Reconstruction Team was based.

It stated that O'Donnell's death was caused by an "insurgent group" with a history of carrying out attacks in the area and the raid was intended to "disrupt this insurgent group's capacity and capability to target coalition forces".

The memo provided details of the raid - that it involved the NZSAS, the Afghan Crisis Response Unit it was training in Kabul with support from coalition helicopter and fixed-wing aircraft.

It stated a "large number of armed insurgents operating in small groups" attempted to move into position above the NZSAS and were then fired upon by supporting "helicopters and aircraft" with nine "insurgents" were killed as a result.

New Zealand Prime Minister John Key on the streets of Bamiyan, Afghanistan.
New Zealand Prime Minister John Key on the streets of Bamiyan, Afghanistan.

The memo did not state that one person was killed by a NZSAS sniper who had been dropped into overwatch position on the hills above - a detail revealed in Hit & Run and later confirmed by the NZ Herald and then NZDF.

Also of note was the reference to "helicopters and aircraft" providing fire support - an apparent confirmation of the presence of a C130 fixed-wing Spectre gunship above the battleground, revealed by the Herald after the publication of Hit & Run.

The memo stated that the operation was followed by allegations "20 civilians had been killed by aircraft bombardment and 20 houses destroyed by fire".

As a result, Key and Mapp were told, an inquiry team was formed of two Afghan government agencies and officials from the International Security Assistance Force - the organising coalition body.

The inquiry team visited the province and district, including hospitals where the wounded were said to have been taken, reviewed gun camera footage from aircraft and interviewed NZSAS personnel, the memo stated.

It concluded: "As a result of their investigation the assessment team concluded that 'having reviewed the evidence there is no way that civilian casualties could have occurred' and the actions of the ground force and coalition air were cleared of all accusations."

Other information released through the OIA appear to show NZDF's explanation for giving Key and Mapp such a solid assurance no civilians were killed.

It also appeared to offer an explanation as to how NZDF came to use the term "unfounded" in relation to claims of civilian deaths.

NZDF stated that its position on civilian deaths came after the NZSAS task force commander in Afghanistan was allowed to read but not take a copy of the ISAF investigation report.

The summary of the report was sent to NZDF headquarters in NZ "where it appears considerable weight was attached by the NZDF to its accuracy".

Mapp said today he would make no comment until he appeared at the upcoming inquiry

NZDF's mistake over death inquiry

NZDF said it had emerged that "specific phraseology written by the person in-theatre is mistakenly taken to be a verbatim quote back in New Zealand of the ISAF assessment".

"Understanding the sequence of these events, and how this came to transpire, will likely be an issue the forthcoming Government Inquiry will consider."

NZDF also said the use of the word "unfounded" came as a result of the "second-hand account of the ISAF report in so far as it related to NZDF personnel".

"This summary did not include the acknowledgement by ISAF that coalition helicopter gunship rounds fell short and may have caused casualties."

When Hit & Run was published in 2017, NZDF said it prepared a press release "quickly" which used the same term.

"With the benefit of hindsight, this was a moment when the NZDF could have removed some of the confusion around its position."

Former Chief of Defence Force Sir Jerry Mateparae, who later became Governor-General.
Former Chief of Defence Force Sir Jerry Mateparae, who later became Governor-General.

It stated that the Chief of Defence Force Lieutenant General Tim Keating gave a press conference a week after the book was published, he attempted to clarify what NZDF meant by "unfounded".

NZDF said the Armed Forces Discipline Act required "well founded" allegations to be investigated.

"As there was no evidence produced at the time of any specific civilian casualties, and those that may have occurred were not as a result of any actions undertaken by NZDF personnel, any such allegations were not "well founded' in terms of the AFDA.

"This is the reason the term 'unfounded' was the particular term used in NZDF's
press releases.

"This summary did not include the acknowledgement by ISAF that coalition helicopter gunship rounds fell short and may have caused casualties. NZDF acknowledges that the "unfounded" remark related to NZDF personnel and therefore only reflected a partial picture of the operation."

NZDF said the same term - "unfounded" - was used in 2014 when the issue arose as a result of a documentary which claimed NZDF was responsible for civilian deaths. NZDF said that was not its understanding - "then or now".

NZDF's said its current position was that "it was possible that civilian casualties occurred because two buildings were used by insurgents as cover and that women and children were in those buildings".

It was because "the insurgents put non-combatants at risk by using the compounds as a base for their operations. Insurgents with machine guns and probable RPGs were clearly visible".

"[These] buildings were not a target, however a gun sight malfunction in one of the helicopters may have led to rounds falling short."