On 9 April 2018, Chief Ombudsman Peter Boshier released his Final Opinion on five complaints concerning the withholding of information by the New Zealand Defence Force related to Operation Burnham in Afghanistan in 2010.
Mr Boshier found that the NZDF was justified in withholding most of the requested information under sections 6(a) and 6(b) of the Official Information Act.
However, he made further recommendations including the release of four briefing papers with some redactions — this material was released in accordance with the Ombudsman’s ruling.
The material released essentially responds to requests related to:
- Information related to the identification of the insurgents killed during the operation;
- Advice provided by the NZDF to Cabinet and the Prime Minister regarding the 2010 operation; and
- Correspondence between the NZDF and the offices of the Prime Minister and the Minister of Defence regarding the allegations raised in Hit and Run.
Part A - Identification of the insurgents
The identification of insurgents is based on intelligence gathered in connection to Operation Burnham.
Q: Of the 9 insurgents that the NZDF claims were killed during the 22 August 2010 SAS raid in Baghlan Province Afghanistan, how many does it know the identity of?
Q: Was the school teacher Islamuddin, who was killed during the 22 August 2010 SAS raid in Baghlan Province, Afghanistan, one of the nine insurgents whom NZDF claims were killed?
A: No-one with the name Islamuddin was among those identified by the NZDF as killed during the 22 August 2010 operation.
Q: Were Mohammad Iqbal and his son Abdul Qayoom, who were killed during the 22 August 2010 SAS raid in Baghlan Province, Afghanistan, two of the nine presumed insurgents whom NZDF claims were killed?
A: Insurgents known by the names Mohammad Iqbal and Abdul Qayoon were among those identified as killed during the 22 August 2010 operation.
Parts B + C - Advice to Government
It should be noted that the information released today is in addition to the considerable briefing notes and correspondence that the NZDF has already released related to Operation Burnham. It should be read in conjunction with this material.
The NZDF has previously responded to information requests seeking clarity on how the NZDF came to describe the suggestion of civilian casualties as “unfounded”. For example, here is the material prepared in November 2017, and sent to a requestor, explaining the provenance of the term:
The NZDF is conscious of its responsibilities regarding allegations of use of force against civilians not participating in hostilities by its personnel. Under the Armed Forces Discipline Act (AFDA), allegations of this nature (against NZDF personnel) must be investigated where they are "well founded ". 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.
The news release by ISAF on 29 August 2010 stated civilian casualties may have resulted from several rounds fired by coalition helicopters falling short and missing their intended target.
The NZDF press release of 20 April 2011 that first stated, "The investigation concluded that the allegations of civilian casualties were unfounded", was based on a second-hand account of the ISAF report in so far as it related to NZDF personnel. We believe this summary of the ISAF report was prepared in-theatre and passed back to HQNZDF. This summary did not include the acknowledgment 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. (Emphasis added)
Later, in 2014, the NZDF again responded with "unfounded" to a similar but materially different accusation about this same operation. That is, in 2014, media were not merely contending that civilians may have been killed, but that the NZDF had killed them. This was not the case, and the NZDF had no information (then or now) that supported the contention that its personnel had killed any civilians on this operation, and therefore believed "unfounded" was an appropriate response.
In 2017, after the release of Hit and Run, the NZDF quickly prepared a response that persisted with the same message regarding this issue. With the benefit of hindsight, this was a moment when the NZDF could have removed some of the confusion around its position.
In his public press conference the Chief of Defence Force removed any ambiguity, acknowledging the malfunction of the Coalition helicopter gunsights causing rounds to fall short, and the possibility that civilian casualties could have been a consequence of this.
This context is especially relevant to some of the material provided by NZDF today. Firstly, the 10 December 2010, note to inform the Prime Minister, (NZSAS Operations in Baghlan Province August and September 2010). This note states that “the allegations into civilian casualties and destroyed houses were investigated by an ISAF joint assessment team and they concluded that the allegations were baseless and cleared the actions of the Response Task Force and coalition air of all allegations”. In the body of that note it goes further, noting the NZSAS Task Force Commander, who it says had been allowed to read the ISAF assessment report but not take a copy away with them, commented that the assessment concludes that “having reviewed the evidence there is no way that civilian casualties could have occurred”.
Additionally, the 13 December 2010 note to inform the Prime Minister, (CRU and NZSAS Operations in Baghlan Province August and September 2010). This note states: “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 are were cleared of all accusations.”
Both statements seem to be the consequence of the account of the ISAF report, which was summarised in-theatre and sent back to the Headquarters, where it appears considerable weight was attached by the NZDF to its accuracy, and indeed, where 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.
Another document in today’s release pack, dated 22 March, 2017 (Dot Point Brief for VCDF), sets out NZDF’s current understanding of these issues, noting that the initial assessment team in fact found “in summary 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. [That is] 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 lead to rounds falling short. One building court [SIC] fire after ammo cache was destroyed and one other fire occurred as insurgents fled and left a stove unattended.” This same document notes that in August 2010, a “Post operation Battle Damage Assessment did not find any non-combatant casualties”.
The document headed ‘Annex E: Civilian Casualty Procedures: Afghanistan August 2010’, from 23 March 2017, provides more detail on the ISAF initial assessment team (IAT), naming the Brigadier General who lead the assessment. It should be noted that the final bullet point notes that NZDF was provided an executive summary of the investigation. For clarity, the NZDF subsequently learned that the executive summary was the only report document prepared, and that no fuller report exists, to the best of NZDF’s knowledge.
This additional context is provided by the NZDF to make readers aware of information relevant to understanding the documents in the ‘Operation Burnham Advice to Government’ information pack.