Former New Zealand Prime Minister Sir John Key on the streets of Bamiyan, Afghanistan.
Former New Zealand Prime Minister Sir John Key on the streets of Bamiyan, Afghanistan.
Our military and two of its most studious observers are both likely to experience discomfort before the inquiry into allegations in the Hit & Run book is finished.
No public agency likes being pulled into an inquiry and the NZ Defence Force is less accustomed than most to have its activities and motives questioned.
Inquiries are institutionally exhausting, and tend to be an opportunity for careers to end rather than to be enhanced.
There will be little joy in having to explain to civilians how our NZSAS engaged with the anarchic battlefield Afghanistan was during our time in the country.
The story they told in Hit & Run was pieced together with jigsaw pieces wrested from sources and used to create a picture.
Their story is now set against a military machine which has always had the entire picture relating to the 2010 raid in Afghanistan.
NZDF on patrol in Bamyian in 2011, the year after Tim O'Donnell was killed.
That military machine will approach the inquiry as it does every conflict - aggressively, confidently, tactically and with an intent to dominate and win.
The stakes are high for both sides. NZDF and the authors both face credibility damage if the inquiry findings fall short of their wildly differing accounts.
Here's the key points the inquiry will touch on - and some clarification over exactly what has been alleged and who might be responsible.
Revenge and civilian deaths
The key point of Hit & Run wasn't just that civilians were killed.
It was that civilians were killed in a revenge raid. This is the key theme which runs through the book and at the heart of the allegations.
The NZSAS assault on Tirgiran Valley came after the August 4 2010 death of Lieutenant Tim O'Donnell in a province neighbouring the Bamiyan district where New Zealand's Provincial Reconstruction Team was based.
Hit & Run calls the August 22 2010 raid "one night of immature and ruthless retaliation" for O'Donnell's death and that the NZSAS "broke" every rule in the Code of Conduct card they carried, which included taking all possible precautions to avoid accidental injury or death.
They wrote of an "air of rage" and a "lack of control", quoting sources as saying "it was definitely a revenge raid".
Some of the weaponry found and destroyed by the NZSAS during the 2010 raid.
The NZSAS returned to the same area 10 days after the initial raid. Of that return, the book says it is "hard to see their actions were born of anything but revenge". An explosive was used - NZDF says it was so as to enter a house while Hit & Run says it was to destroy a house.
The revenge allegation is extraordinary and required an inquiry in itself.
Remember, the raid was supported by United States' aircraft - Apache helicopter gunships and a Spectre gunship circled the area and provided support fire under direction from the ground.
Video from the raid was broadcast back to the NZSAS base in Kabul when Chief of Defence Force Lieutenant General Sir Jerry Mateparae watched.
Mateparae had listened to a briefing on the raid alongside Minister of Defence Wayne Mapp, who happened to be in the country. They both ran it past Sir John Key before the green light was given.
If the raid was intent on revenge - on actually punishing the village that harboured O'Donnell's killers with death and destruction - then it would have required an extraordinary conspiracy.
Mapp didn't watch the raid unfold but plenty of others did. If it were the case that the death and injury caused was done for "punishment" and "revenge", as alleged, then it would have been clear to the US aircrew and to those watching back in Kabul.
It would have also been clear to Mateparae.
Governor-General Sir Jerry Mateparae, former Chief of the Defence Force.
It is this allegation that strikes hardest at NZDF - that they deliberately engineered a raid for payback and "casual retribution" that left five people and a three-year-old girl dead.
That's a long way to come from East Timor 11 years ago. Then, an Australian soldier in the SASR (Special Air Service Regiment) was accused of kicking a corpse, among other claims.
The key witnesses in the case against him were NZSAS members who witnessed the unhinged assault.
Despite the special forces' "brotherhood", a number came forward to offer testimony, although were ultimately unable to when the Australian military made it clear they would be publicly named if they did so. The current Chief of the Defence Force, Lieutenant-General Tim Keating, was commander of the NZSAS at the time.
It would be unusual for a highly disciplined unit such as the NZSAS to go from a principled stand to casual, murderous revenge in just 11 years - and to do it in view (and enabled by) their military and political leaders, and air crew from a foreign nation.
Proving "revenge" will be extremely difficult.
If not 'revenge', why attack?
New Zealand was fortunate in securing Bamiyan as the base for its PRT contribution to the Afghanistan conflict.
The district is home to the Hazara people, who suffered at the hands of the Taliban and were not natural allies to those who opposed the American-led military action in Afghanistan.
In comparison to the districts other countries took on, Bamiyan was a relatively benign environment.
It was less so in Baghlan province, which it neighboured and where a strong opposition was building.
Defence Force Chief, Lieutenant General Tim Keating, during a press conference in Wellington on the allegations made in the book Hit & Run. Photo / Mark Mitchell
Elements of that opposition increasingly pushed into Bamiyan, with the border just a short distance away. Its closest border was close to Kiwibase - our PRT headquarters - and within striking distance of NZDF's patrol route.
As resistance organised against the coalition occupation, NZDF personnel came under increasing threat which culminated in the attack on O'Donnell's patrol.
At that point, NZDF had few options - it could leave, it could hunker down and become effectively bunkered in its base, or it could remove the threat.
NZDF personnel patrolled Bamiyan in four wheel drives in 2009, the year it began to attract increased attention from those opposed to the Western presence in Afghanistan.
Leaving was not an option. New Zealand - for better or worse - had signed on to do a job. Leaving would have been politically impossible.
Reducing patrol ranges and staying close to base was an interim option, but would ultimately have allowed an opposing force free rein across the district. It would have eventually created a greater threat than it avoided.
The NZSAS mission was the third option - identify the threat (which it believed it had done through intelligence) and then "neutralise" it.
In Afghanistan, that means killing the people who are trying to kill you before they succeed.
But were civilians killed?
It seems almost certain to have been the case.
NZDF - belatedly and eventually - appears to have conceded the fact.
It took years for NZDF to reach a point where it could concede the possibility publicly.
But there was little doubt at the time among members of the NZSAS on the raid. They may not have known on the night of the attack but The NZ Herald has been told they knew within days that support gunfire had killed civilians.
The villagers have also asserted through lawyers Rodney Harrison QC, Deborah Manning and Richard McLeod that civilian casualties occurred. Those claims have emerged as sworn evidence and been filed with the High Court.
He told soldiers days after the book was published that nine "hostile insurgents" armed with assault rifles, machine guns and rocket-propelled grenades were killed.
One of those nine was killed by a NZSAS soldier, Kelly said. This was a detail an NZSAS source confirmed with the Herald and differed (slightly) from claims in the book that a sniper had killed two people.
The other eight "insurgents" were presumed to have been killed by supporting Apache helicopter gunship fire.
Authors Nicky Hager and Jon Stephenson during the launch of their book, Hit & Run. Photo / Mark Mitchell
Kelly said "we know for a fact that there were no civilian casualties in and around the buildings that the Afghan police and New Zealand soldiers cleared".
But he also conceded it was possible others had died.
He said a malfunctioning gun sight on an Apache helicopter meant shells fired at one "insurgent" hit a building 15 metres away in which women and children were sheltering.
Community leaders in Afghanistan treat it as common knowledge. The governor of the Baghlan province was quoted saying there had been civilian casualties within days of the attack.
Neighbouring leaders also believed that was the case, and the overarching coalition body ISAF had also conceded there was a likelihood in statements at the time.
"Unfounded" was the word chosen by NZDF to use in the press release which needed to be issued after Mapp, the former Minister of Defence, confirmed the existence of the raid in 2011.
It was the first New Zealand knew of the raid, revealed during an interview with Mapp in which he was told of an Associated Press report claiming civilians had been killed.
Mapp responded: "And that's been investigated and proven to be false."
Mapp was asked: "So no civilians were killed in that? You're satisfied about that? You've seen some reports on it?
Mapp said: "I am satisfied around that."
NZDF would have seen that interview and noted its Minister's comments. It had to have reviewed what the Minister said because it was then forced to publicly respond.
It then crafted a press release saying nine "insurgents" had been killed and supported the Minister's comments saying reports of casualties were "unfounded".
If the Minister had mis-spoken at the time, it was NZDF's duty and obligation to provide him with accurate information so he could correct his public statement.
But it did not, and Mapp did not.
Since then, NZDF has tried to position "unfounded" as meaning "possible". It has also said that it was meant to refer to casualties caused by NZ personnel. Even that doesn't work, with a Kiwi on the ground directing some - but not all - air support.
Former defence minister Dr Wayne Mapp in 2011.
The decision by NZDF to use "unfounded" and its shifting definitions will be uncomfortable for NZDF.
Weren't the casualties caused by US aircraft?
Yes and no. With the exception of the one person shot by a NZSAS marksman, the rest of the casualties were as a result of air support.
The NZSAS deployed with a Joint Tactical Air Controller - usually shortened to "JTAC" or "J-Tack".
Their role is to direct fire onto areas of the battlefield where it is considered support is needed.
It is intended to complement the high degree of visibility enjoyed by air support, which is able to engage a number of different technologies to allow as effective operation as night as during the day.
According to Keating, this was only done after sign off from the NZSAS commander on the ground and only targeting "insurgents".
According to Hager and Stephenson, this was constant heavy fire intended to destroy buildings and people.
The JTAC and others were dropped off on an elevated position about two kilometres away from the location of the assault.
It was further away than they would have liked but Afghanistan is a rocky and rugged nation, and it was a struggle to get them closer by helicopter.
Air support began reporting sightings of groups of people appearing to gather weapons as they became aware of helicopters in the valley.
The soldier and those he was with had to scoot fast, down the rocky incline and ever closer to the village, directing fire as the opposing force appeared to be moving to a position where they could come into contact with the NZSAS.
On one occasion, they closed to within 40 metres of the NZSAS, moving along a tree line.
The Top Secret video from air support aircraft - which the US has refused to allow to be made public - shows the group of apparently armed "insurgents" move close to the main body of the NZSAS without knowing they are there, searching for a way to bring the fight to the Kiwi invaders.
As the NZSAS group moved in to search the village, the citation states that the "insurgents" gathered on two occasions to prepare an assault.
NZDF personnel on patrol in north east Bamyian, close to the Baghlan border where the 2010 raid took place.
The soldier's medal citation stated: "The reports he provided brought effective aerial fire to bear on the enemy, during which a number were killed, negating their ability to engage the main body of NZSAS personnel."
Like most New Zealand military engagements in Afghanistan, it was a team effort.
Don't expect to see this discussed much in the inquiry. The dual desires to keep the NZSAS activities secret and the desire to not embarrass out coalition partners is likely to keep these details buried.
What about NZDF's 'cover-up' over the location?
Forget about this red herring. When the initial copy of the book was printed, the maps used to locate the village were wrong.
It was an error of which NZDF made much. Keating said: "It seems to me that one of the fundamentals, a start point if you like, of any investigation into a crime is to tie the alleged perpetrators of a crime to the scene."
Maps were developed and experts located to explain how the valley depicted in the book was not a valley where the NZSAS had operated.
It seems likely NZDF, facing accusations of war crimes and seeing the uniform besmirched, leapt at an opportunity to point out an error. It should not have, given it conceded Hit & Run was all about Operation Burnham.
For Hager and Stephenson's part, it's understandable how they confused the issue. They had located the village during interviews with villagers, showing them aerial maps on which many valleys have similar characteristics.
This point arose again a few weeks ago, when NZDF confirmed photographs (as opposed to the maps in the original edition of Hit & Run) of the villages in the book were the same villages the NZSAS had raided.
At that point, the smokescreen was already gone. NZDF and the authors had been talking for a year about the same operation.
What is uncomfortable for NZDF was the Chief Ombudsman's ruling which came after NZDF confirmed the photographs in the book were the same villages as those raided.
NZDF personnel on patrol in north-east Bamyian in 2011.
It stated that NZDF could have released that information at the time of the book's publication when it was putting so much effort into the "wrong map" smokescreen.
Expect to see this examined in the inquiry - not the authors' error but why NZDF made so much of it.
Can we just kill people?
The inquiry has one big fishhook which will be uncomfortable for the military and politicians alike.
NZDF's preparation for the operation involved identifying those it believed responsible for killing O'Donnell and then mounting a series of operation to kill those people.
Our military's behaviour in a conflict zone is governed by Rules of Engagement. These are the rules which dictate how they are to behave, when they can fire on an opposing force and what degree of lethality is allowed.
The Rules of Engagement for Operation Burnham - and our other operations in Afghanistan - are unknown. NZDF will not release the rules and the Chief Ombudsman has upheld their right to do so, partly on the grounds they were agreed with coalition partners and partly because it is believed it places our personnel in jeopardy by alerting an opposing force to our boundaries.
The inquiry intends to study whether those rules allow "predetermined and offensive use of lethal force against specified individuals". The other term for this is "kill missions".
It is one thing to become involved in a firefight and to return fire - or to carry out an offensive assault on a target during which people might be killed.
It is quite different to select certain individuals as threats and to specifically set out to target and assassinate those individuals.
The inquiry intends to study whether the RoE allowed this, and if so, who approved those rules and whether it was explained fully to authorising Ministers - Mapp and Key in this case.
This discomfort for NZDF is it would consider this to be a military necessity at times, and losing the ability to do so could jeopardise its ability to protect New Zealand interests.
The discomfort for politicians is the sheer brutal ugliness of it. If they don't have final sign-off, then should they? And if they do, how palatable to the public is that after decades of portraying our defence personnel more as "peacekeepers" than "war fighters".
Why did all this need to happen?
There's an awful lot of confusion around what took place. There's also considerable reputational damage done to NZDF, which portrays itself as a modern and moral defence force.
But consider the context. New Zealand spent 15 years in Afghanistan, at the cost of 10 lives and hundreds of millions of dollars.
NZ personnel on patrol in north-east Bamiyan, close to the border with Baghlan province where the 2010 NZSAS raid took place.
In all that time, we have not had a shred of accountability or inquiry as to whether the investment - in terms of diplomatic advantage, lives, money or moral certainty - was worth the cost.
There has been one single report done on our deployment to Afghanistan. The internal NZDF review that was done of our PRT contribution criticised generals and politicians - and then got binned by senior command as being too inaccurate to be released.
It deprived the public of a true understanding of what we did and how we did it. In the absence of transparency, it is possible that our moral compass shifted. We don't know because we were never told.
It is equally possible the absence of transparency allowed conspiracy and well-meaning concern to grow in its place.
NZDF and its political masters need to consider whether greater levels of public information about what we did and how we did it would have avoided this inquiry ever taking place.
That's not an issue before the inquiry.
And the absence is not new - we have never looked closely at what our role has been in the War on Terror.
