New Zealanders were fortunate to be on the winning side in both World Wars. Had we not been victorious, our soldiers could have faced war crimes tribunals for incidents on the Somme and in Palestine in the First, and for actions at Crete and North Africa in the Second.

In the 21st century, such evasion from justice is no longer possible as all soldiers in all countries must abide by the same rules.

In Afghanistan, these rules attempt to cover a conflict which has since 2001 claimed about 28,000 civilian lives (80 per cent killed by the enemy) and coalition military deaths of about 3400, including 10 Kiwis.

Against this backdrop Nicky Hager and Jon Stephenson have raised a series of questions against the New Zealand military.


They assert that following the death of Tim O'Donnell in 2010 a revenge attack was planned in the Tirgiran valley.

This valley held the settlements of Naik and Khak Khuday Dad, in which the leaders of the Taleban who may have been responsible for O'Donnell's death lived.

From this raid, and subsequent actions, the authors assert there are "reasonable grounds to suspect that New Zealanders and their United States allies were involved in war crimes and other serious breaches of the laws of war".

These acts call for an independent investigation. The specific allegations involve complicity in direct targeting of civilians, the intentional destruction of civilian houses and cultural property, and failing to help the wounded.

Further allegations concern the beating of prisoners and knowingly handing over captives to be tortured.

These claims are weakened by three considerations. First, the distance of seven years is matched by that of geography and the difficulties of obtaining reliable evidence in foreign lands.

Second, the events took place after very serious abuses of the laws of war, from Guantanamo Bay to Abu Ghraib, and deeply shocking material being exposed on WikiLeaks.

To act in such a deliberative, reckless or even negligent way as suggested in the book, when everyone was watching for breaches of the laws of war, does not make sense. Our elite soldiers have the unambiguous rules drilled into their core.


Third, the fog of war is very thick. Much of the evidence gathered is incomplete.

Although death and destruction may be recorded, this does not necessarily explain why such acts occurred or how these acts are reconciled with the complexities of the laws that govern situations of war.

In certain circumstances, civilians or their property can be killed or destroyed if they overlap with military objectives.

The answer will turn on what threats the soldiers understood they faced, what orders they received, what checks and balances were applied before they acted, and whether their responses were proportionate.

Depending on the answers given, incidents involving civilian deaths may be closer to tragedies than crimes.

Despite these reservations, there are also reasons the matter should not be swept under the carpet.

First, to be accused of war crimes and their cover-up is among the most serious allegations a government can face. If they are not adequately dealt with, at best there will be a stain on the reputation of the military and the country.

At worst, this could develop into a political football at home and/or evolve into the subject of negative international attention.

Second, there are inconsistencies in the different explanations of what happened. These inconsistencies need to be ironed out.

Third, the official explanations only cover the issue of civilian deaths. They do not cover the other alleged crimes at issue, such as the beatings, handing over prisoners to be tortured, unnecessary destruction of civilian property or failure to help the wounded.

Fourth, it is a good thing to be doubly sure that when civilians may have died in a Kiwi-related operation, that all of the high standards we profess have been met.

The question is what is the Government to do from here? The first option is to do nothing and accept the situation as it stands.

The second option is to have an official inquiry either through the military as a court of inquiry, or civilian as a commission of inquiry.

A third option is to create an independent process to see if there is enough reason to go to a full inquiry.

A fourth option, as reported to be operating in Australia, is where one of their judges of the Supreme Court of New South Wales is conducting an inquiry behind closed doors, which is independent of the army chain of command.

This inquiry followed a range of allegations including one where a former SAS soldier went public in a very unambiguous way about the execution of Taleban prisoners.

• Alexander Gillespie is a professor of law at Waikato University.
• John Roughan's column will return next week.