By RNZ

A civilian child was killed during Operation Burnham in 2010, but an inquiry has found their death was justified under international law.

Four others died, but the Burnham Inquiry couldn't determine if they were civilians or insurgents.

Operation Burnham Afghanistan 25 July 2010 Released image and documentation FOIA by Nicky Hager. Possible Kalta location. Picture / Supplied.
Operation Burnham Afghanistan 25 July 2010 Released image and documentation FOIA by Nicky Hager. Possible Kalta location. Picture / Supplied.

The long-awaited inquiry into the actions of New Zealand SAS troops during Operation Burnham in Afghanistan has been released today.

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The Burnham Inquiry has also found New Zealand Defence Force (NZDF) officials did not plot to cover-up the casualties, as claimed in the book Hit and Run by investigative journalists Nicky Hager and Jon Stephenson.

It did, however, find the Defence Force never corrected claims made to the public and ministers by its personnel that allegations of civilian casualties were "unfounded", despite knowing it was possible.

Operation Burnham Afghanistan 25 July 2010. Released image and documentation FOIA by Nicky Hager. Possible Nematullah location. Picture / Supplied
Operation Burnham Afghanistan 25 July 2010. Released image and documentation FOIA by Nicky Hager. Possible Nematullah location. Picture / Supplied

The Inspector-General of Intelligence and Security has also released its report, which found New Zealand's intelligence agencies could have done more to help set the record straight.

Operation Burnham

The $7 million government inquiry found Hit and Run accurately set out the timing of Operation Burnham, as well as the identity of the insurgents targeted, their links to the attack which led to the death of Lieutenant Tim O'Donnell and the names of the villages where the raid took place.

Retired Colonel Jim Blackwell gives evidence at the Operation Burnham Inquiry in Wellington. Photo / Boris Jancic
Retired Colonel Jim Blackwell gives evidence at the Operation Burnham Inquiry in Wellington. Photo / Boris Jancic

It also correctly identified some of the people killed and injured, including civilians.

The author's claims buildings were damaged as a result of the fires caused by ground troops and rounds from Apache helicopters and there was a second operation in the area were both proven correct.

The inquiry has found, however, the operations were not "revenge" raids, nor were they "ill-conceived".

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There were "legitimate reasons" for the operations, the report said, as Defence Officials had "reliable intelligence" insurgents who had been conducting attacks in the Bamyan province were located in the villages and had plans for further attacks targeted at New Zealand troops and Afghan security forces.

Tim Keating gives evidence at the Operation Burnham inquiry in Wellington. Photo / Boris Jancic
Tim Keating gives evidence at the Operation Burnham inquiry in Wellington. Photo / Boris Jancic

"The operations aimed to disrupt the insurgent network and improve security in Bamyan province," the report said.

Operation Burnham was not an attack on innocent people as claimed in Hit and Run, the inquiry said, as there were insurgents in the two villages.

One of the insurgents NZDF was searching for, Maulawi Neimatullah, was in Naik on the night of the operation, as was Qari Miraj - another insurgent leader, it said.

The inquiry was unable to confirm whether Abdullah Kalta, another target of Operation Burnham, was present.

A New Zealand troop later punched Miraj around the rip or stomach area, the report said, and there was strong evidence he was tortured after he was placed in Afghan custody but nothing was done to stop it.

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Casualties and injuries

The book Hit and Run alleged six civilians were killed, including a child, during Operation Burnham.

Brigadier Christopher Parsons gives evidence at the second day of the Operation Burnham inquiry in Wellington. Photo / Boris Jancic
Brigadier Christopher Parsons gives evidence at the second day of the Operation Burnham inquiry in Wellington. Photo / Boris Jancic

The inquiry found an unnamed civilian female - who was about 8-10 years old - was killed in the operation, not three-year-old Fatima as claimed in the book.

At least seven men were killed in the raid, three of whom were identified as insurgents.

Two others had links to insurgent groups, while the inquiry was unable to determine if the remaining two men were insurgents or civilians.

At least six civilians were injured during the Operation, the report said.

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Cover-up claims not true - inquiry

The report states there was "no organised institutional strategy to cover up civilian casualties" but NZDF made several incorrect and misleading statements in briefings to Ministers and to the public.

A senior defence official who was deployed in Afghanistan showed an "inexcusable lack of care and rigor" in misrepresenting the findings of an International Security Assistance Force investigation into claims of civilian casualties, the inquiry found.

Senior Defence staff didn't question his comments, despite being provided information - including video footage, intelligence reporting and ISAF media releases, which contradicted them, the report said.

Sir Geoffrey Palmer at the Operation Burnham inquiry in September last year. Photo: RNZ / Dom Thomas
Sir Geoffrey Palmer at the Operation Burnham inquiry in September last year. Photo: RNZ / Dom Thomas

"NZDF failed to adequately remedy its earlier incorrect statements and advice, even after it knew they were wrong."

Defence officials continued to repeat its incorrect statements to the public and to ministers "due to failures of organisational structure, systems and culture," it said.

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NZDF personnel also removed the possibility of civilian casualties during the Operation from reports, it found.

Former Defence Minister Wayne Mapp failed to correct this and "continued the false narrative" that there were no civilian casualties, despite knowing it was possible, the inquiry found.

"This was a significant departure from the standards expected of Ministers," the report said.

The Government Inquiry made four recommendations:

* An expert review group should look at NZDF's organisational structure, record-keeping and retrieval processes to assure the Defence Minister they meet international best practice.
* An office of the Independent Inspector-General of Defence (located outside the NZDF organisational structure) should be established to facilitate independent oversight of NZDF and enhance its democratic accountability.
* A Defence Force Order should be promulgated setting out how allegations of civilian casualties should be dealt with in-theatre and in New Zealand.
* The government should set effective detention policies and procedures in relation to people detained by, or with the involvement of, New Zealand forces overseas and how allegations of torture by such persons are treated.

Attorney-General David Parker said the government had accepted, in principle, all them.

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"The inquiry finds that the book Hit and Run contains many errors and impugns the integrity and professionalism of the NZSAS personnel involved on the ground in Operation Burnham on the night in question," Parker said.

Despite that, he said, in important respects the book was right.

"Without the book, the findings of the report and its important recommendations would not have been possible. Given this, it is right to acknowledge ... that the book has performed a valuable public service," he added.

The Inspector-General of Intelligence and Security has also released its report which stated New Zealand's security agencies accurately reported allegations of casualties from the operation, but could have done more to "ensure the possibility of civilian casualties was considered at an interagency level and reported to ministers."

"There were also known risks that persons detained by partner agencies were subjected to human rights violations including torture and that those risks were not adequately identified or responded to by the GCSB or NZSIS," the report said.

The report stated while it was not the lead agency, security services should have been "more alive" to the human rights responsibilities which came with their operational activities.

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NZDF 'deeply sorry' for misleading ministers and public

Air Marshall Kevin Short, the chief of the Defence Force, has apologised for providing inaccurate information to the public, saying the mistake "continued for a number of years".

"I am pleased that the inquiry's report has found that during Operations Burnham and Nova, our personnel operated with proper authorisation and conformed to the rules of engagement and international humanitarian law."

He said the operations were lawful, justified, and planned meticulously.

"However, this inquiry report demonstrates that we let our frontline service people down through a series of organisational and administrative failings that saw incorrect information provided to ministers and the New Zealand public. And for that, I am deeply sorry.

"The errors resulted in a number of mistakes over several years and saw inaccurate information about the possibility of civilian casualties given to ministers and New Zealanders. The mistakes were compounded when the inaccuracies were repeated."

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The Burnham Inquiry found NZDF officials did not plot to cover-up the casualties.

"However inaccurate statements were made. NZDF acknowledges and regrets these mistakes," he said.

Air Marshall Kevin Short. Photo / Mark Mitchell
Air Marshall Kevin Short. Photo / Mark Mitchell

"If we are to maintain the trust and confidence of the people we serve, we must be accountable. We must be better at the way we record, store and retrieve information, and then subsequently present that information to ministers and the public. I will ensure this happens."

Short said information was shown to an officer in Afghanistan.

"It was a brief look at one paragraph within a report and from memory he reported that back. Unfortunately, there was no system put in place to expand on that information, check on its accuracy and then provide very accurate information to the chief of defence force and then on to ministers.

"It started with an inaccurate account of what had occurred and that mistake continued for a number of years."

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Hit and run

The government inquiry was prompted by Nicky Hager and Jon Stephenson's book Hit and Run, which claimed six civilians were killed and 15 injured in a botched raid on two Afghan villages in 2010.

Hager and Stephenson alleged New Zealand SAS soldiers, with support from US and Afghan troops, burned and blew up about a dozen houses in a Tirigran Valley village and then did not help the wounded.

The book states the military then tried to cover up what had happened.

The pair claimed the raid was in retaliation for the death of Lieutenant Tim O'Donnell after an explosion and attack on his patrol vehicle at the start of August that year.

Hit and Run detailed how the SAS planned to raid a village in Bamiyan, where they thought the insurgents responsible for Lieutenant O'Donnell's death were located.

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A "confidential" source had informed the authors the Defence Minister at the time, Wayne Mapp, and the then chief of defence, Lieutenant Jerry Mateparae, were in Afghanistan in the days leading to the raid.

An unnamed source was quoted as saying the pair were briefed by the SAS, which sought permission for the operation, and they decided it was up to the then prime minister, John Key, to determine if such a "major and possibly risky operation" should go ahead.

Nicky Hager at the Operation Burnham inquiry in September last year. Photo: RNZ /Dom Thomas
Nicky Hager at the Operation Burnham inquiry in September last year. Photo: RNZ /Dom Thomas

The source claimed Key had then given the operation the "green light to go ahead."

What followed, the authors claimed, was an early morning raid on two villages, Naik and Khak Khuday Dad, in an area of Baghlan province known as Tirigran Valley, with support from American Chinooks and the Apache gunships on 22 August 2010.

A Khak Khuday Dad elder, Deen Mohammed, described in the book a scene of "frightened" villagers running and trying to "hide themselves" after helicopters started firing into the village.

Hit and Run referenced "Afghanistan's Independent Directorate of Local Governance list of dead and wounded" to allege the helicopters "rained down cannon fire and rockets, destroying the two houses, injuring two of the mothers and five of their children and killing a small sixth child as she was held in her mother's arms". The "father of the third household would be dead soon too", it continued.

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The authors also claimed there was an attack on a second village where more houses were destroyed and civilians - but no insurgents - were hurt, as well as more fatalities.

Hager and Stephenson said the names of those killed or wounded had been officially confirmed by the district governor and several other sources - and that all were civilians.

Hit and Run also stated an SAS soldier detained Qari Miraj, an insurgent thought to be involved in Lieutenant O'Donnell's death, beat him and then handed him to the Afghan secret police where he was tortured.

Defence officials were quick to reject the claims made in the book soon after its publication.

NZDF said a joint Afghan Ministry of Defence, Ministry of the Interior and International Security Assistance Force (ISAF) investigation, conducted in 2010, concluded allegations of civilian casualties were "unfounded" and it was confident New Zealand personnel had conducted themselves "in accordance with the applicable rules of engagement."

NZDF later admitted, however, civilians may have been killed by shots from a US Apache helicopter which fell short and hit a building.

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Hager responds

Hit and Run co-author Nicky Hager said the inquiry's report should "prompt a lot of soul searching inside the New Zealand Defence Force".

The recommendations made in the report were a huge achievement and the findings "extremely serious", Hager said.

"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," Hager said.

While he was pleased with the outcome, Hager said the inquiry process was "highly unequal".

"NZDF and other government agencies spent millions of dollars of public money trying to deny any wrongdoing, while the authors and public were not allowed to analyse and contest the agencies' secret submissions and evidence.

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Military officers were repeatedly given the benefit of the doubt, but not so the villagers. It was not a fair process," Hager said.

Defence Minister responds

Defence Minister Ron Mark said he still had full confidence in Defence Force personnel who serve on the front lines, "often in highly dangerous and complex situations, and in places where no other member of New Zealand society would find themselves in".

They were, however, let down by their senior commanders, whose actions after the operation showed serious deficiencies, Mark said.

"The New Zealand Defence Force have acknowledged and accepted responsibility for these failings. I continue to have confidence in the Chief of Defence Force and his leadership team, and their commitment to transparency and accountability.

"As Minister of Defence, I will oversee and drive the government response where it relates to the Defence portfolio. This work is critically important, and urgent, to maintain public confidence in the Defence Force, and to ensure that lessons are applied, and that the relevant structures and institutions are fit for purpose," he said.

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