Former prime minister John Key should be held accountable for his decisions over Operation Burnham, journalist Nicky Hager has told an inquiry into the actions of New Zealand SAS troops in Afghanistan in 2010.
Hager was making a submission to the inquiry, led by Sir Terence Arnold and Sir Geoffrey Palmer into claims he and fellow journalist Jon Stephenson made in their book Hit & Run about an SAS raid.
The pair claim six civilians were killed and 15 others wounded. The New Zealand Defence Force has rejected the claims, saying nine insurgents were killed.
Hager was today discussing the Rules of Engagement (ROE), which were the subject of a lengthy presentation by the NZDF yesterday and referred to again today by former defence minister Wayne Mapp.
"Rules of Engagement are not some sort of parallel military laws. They are simply orders, approved by the prime minister and issued by the chief of defence force, telling military personnel what they can and cannot do on military operations," he said.
Hager said not all prime ministers took a lot of interest in the Rules of Engagement.
"I am told that Helen Clark used to worry over the wording over ROE and rewrite them herself. In contrast John Key – the person who signed off the ROE in force for Operation Burnham – was apparently not terribly interested and tended to sign off what he was given.
"In the case of John Key, he personally approved Operation Burnham and the ROE and should be held accountable for those decisions," Hager said.
He said there seemed to be clear breaches of the ROE during Operation Burnham. They were not at the grey or disputed edges of what was acceptable.
Just three weeks before Operation Burnham, the US military commander in Afghanistan, General David Petraeus issued new directives urging personnel to redouble efforts to reduce the loss of innocent life to an absolute minimum. It included a direction that before shots were fired, the commander in charge must determine no civilians were present.
Hager said the two civilian villages targeted in Operation Burnham were not insurgent camps but small farming villages.
"Nearly everyone was not an insurgent, including members of the families or the ones who were."
Hager took the inquiry through a timeline of the raid and how he alleged the ROEs were breached throughout. The events that occurred, according to Hager and Stephenson, are the subject of their book and the dispute over how they unfolded is central to the inquiry.
Hager said it was essential that the NZDF was held publicly accountable for the civilian casualties, the lack of care and aid afterwards and the cover-up of Operation Burnham, which is what he and Stephenson have alleged.
"In addition, two former chiefs of defence force, some SAS officers and a former PM deserve public criticism, and the SAS joint tactical air controller who directed helicopter gunship fire into a civilian areas should, at the very least, lose the medal he was awarded for this action."
Hager said he was not calling for action against individuals because he said there were more constructive ways to improve the NZDF.
Palmer took issue with Hager's claim that Key should be held responsible, saying he had no legal power to approve the operation and there was a division between the civil and the military.
Hager disputed that but put the question directly to Mapp, who was at the inquiry this afternoon.
Mapp confirmed that a phone call was made to Key but the question required a more comprehensive answer.
It was more likely to be a call under the "no surprises" arrangement, and he confirmed that the SAS had full authority to carry out the mission.
Giving evidence earlier today, Mapp said he was aware of complaints by the New Zealand Defence Force about the treatment of Afghan detainees by US forces.
Hager and Stephenson claimed in their book that a Taliban fighter was caught by the SAS, beaten then handed over to Afghan authorities and tortured.
"I was well aware that there had been abuses of detainees in the past by overseas militaries. In particular, I was aware of an incident where SAS soldiers had detained Afghan persons after a raid in Band e Timur in 2002. The detainees were handed over to US forces," Mapp told the inquiry.
"Subsequently, the NZDF complained about the way in which the detainees were treated by the Americans," Mapp said.
He also said he was aware that the treatment of detainees arrested by the Afghan police's Crisis Response Unit (CRU) where the SAS were involved could be problematic for the New Zealand Government.
Mapp was responsible for the Cabinet paper which sought to redeploy the SAS to Afghanistan in 2009. The Rules of Engagement (ROE) were developed and attached to the Cabinet paper.
He said it was a high priority for him and for the Government to ensure that the NZDF complied with all relevant legal standards.
It had been for the previous Government also, with Mapp noting former defence minister Phil Goff had received assurances from the Afghan government that detainees handed over to its authorities would not be subjected to torture or capital punishment.
Mapp said that on joint operations between the SAS and the CRU, the detaining authority was the CRU, not the SAS.
"This did not mean the SAS would ignore what was occurring but it did mean that the primary responsibility for detainees rested with the CRU in almost all cases."
His view, based on official advice, was that where the CRU detained a person, they were the responsibility of the CRU.
Mapp said his concern over detainee treatment continued and he monitored the issue closely, raising it at a number of levels.
"Even where the SAS were not detaining individuals, I was concerned that New Zealand was taking reasonable steps to ascertain that persons detained by the CRU had their human rights respected."
Mapp said that to his knowledge, only one person was detained by the SAS, a mid-level Taliban commander in 2011.
He was handed over to US authorities before being taken before Afghan authorities.
The inquiry also heard from the Ministry of Foreign Affairs, the New Zealand Defence Force and their lawyer.
Heath Fisher, Mfat's divisional manager international security and disarmament, said the NZDF did not detain and transfer any individuals directly to Afghan authorities.
The SAS detained only one person, a mid-level Taliban commander called Musa Khan, who was handed over to United States custody.
Fisher told the inquiry New Zealand operated under legal obligations prescribed by international law and that would apply to those detained by the NZDF.
However, if the prisoners were detained by Afghan forces during operations in which New Zealand took part, those legal obligations would not apply.
New Zealand forces in Kabul were partnered the CRU. It was typically involved in rapid response and authorised to apprehend anyone believed to be involved in actual or imminent attacks.
The SAS was tasked in January 2011 with apprehending Musa Khan.
New Zealand did not operate any detention facilities in Afghanistan so Khan was transferred to the US operated Battlefield Detention Facility at Bagram Air Field.
Fisher said the US offered its standard conditions of transfer which were considered to be "broadly compliant" with New Zealand's obligations.
New Zealand diplomats and NZDF staff visited Khan and he was monitored by the New Zealand Government until he was brought before the Afghanistan Government's judicial authority.
Brigadier Lisa Ferris, director of Defence Legal Services, said that since 2009, only two individuals were directly detained by the NZDF in Afghanistan.
One was Khan, the other was detained in 2012 by members of the New Zealand Provincial Reconstruction Team.
Both were transferred to US custody before being handed over to Afghan authorities.
Ferris said New Zealand forces had no authority to interfere with the conduct of any criminal investigation or judicial process.
Arnold said he and Palmer were troubled by the distinctions between apprehension by a foreign force or by Afghan authorities.
"Looking at it in a realistic sense, is it right to say that detention is effected only by the CRU and all the foreign force is doing is assisting that?"
Palmer quoted from Hit & Run on the arrest and handover by New Zealand forces of a detainee to Afghan authorities, saying if it was true it would be concerning.
The inquiry will resume in July.