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Confusion Reigns Over New Zealand War Crimes Allegations

An inquiry from the International Criminal Court could be exactly what's required to cut through the mess.

by Alison Cole
27 March 2017, 10:05pm

(image via flickr)

Anyone hoping yesterday's New Zealand Defence Force press conference about alleged war crimes would clear up confusion will be sorely disappointed. But cutting through the confusion of competing stories is exactly what an International Criminal Court investigation is designed to do. Here's why a public enquiry into New Zealand operations in Afghanistan is still on the cards.

Arriving fresh off the plane from Iraq is never the best time for a press conference. But New Zealand has been waiting for a whole week for clarity from our top military officials, after the release of Hit & Run which alleged an SAS attack in Afghanistan had killed a number of civilians—an act potentially amounting to war crimes. Unfortunately, we face even more questions after hearing from Chief of Defence Force, Lieutenant General Tim Keating.

The frustration with the delay has been palpable. In the week since the book was first published, the New Zealand Defence Force had stayed silent, beyond re-releasing a statement about the alleged raid from 2014. Calls for an independent inquiry have grown—as have voices seeking to exonerate the military. Prime Minister Bill English urged the country to allow time for a measured examination of the allegations, whilst his Twitter account documented a busy week catching Adele and hanging out with Richard Branson. Meanwhile, contradictory information has been swirling from both current and former staff within the military and the Ministry of Defence. Yesterday's press conference was the first opportunity for clarity, but offered little: it seems either Hit & Run has been based on partially false information, or the military and the government is covering up what actually happened during Operation Burnham on 22 August 2010.

There's still much that the defence force and authors disagree on about that night in August 2010. But the very fact these conflicting versions of events exist without some form of inquiry still potentially opens New Zealand up to examination by the International Criminal Court. When investigating whether a country has broken international criminal law, the court doesn't need final proof to start an investigation; just enough information to suggest that it's worth looking into. The standard of proof at the ICC's first stage is whether there is a "reasonable basis to proceed with an investigation". In the past, reports from groups like Amnesty International or articles by journalists have been sufficient. Once they have that, then the ICC will look to see whether the country's own legal processes have genuinely investigated the allegations.

There are two main points where the official line of the military and the allegations in Hit & Run contradict: first, with respect to the location of Operation Burnham, and second, with respect to whether civilians were killed. Hit & Run alleges that attacks took place against two villages in the Tirgiran Valley, Naik and Khak Khuday Dad. Our defence chief point-blank rejected this, but then described an operation under the exact same name, with many similar facts. However, Keating says the location of this attack was actually the village of Tirgiran, which is located a few kilometres from the two Hit & Run villages.

Then there's the question of physical evidence. Hit & Run notes plastic water bottles were left at a possible sniper location. Keating showed photographs of very different military issued drink bottles used by New Zealand forces in Afghanistan. There's also the question of a gun that Hit & Run alleges was left behind by the commandos, and empty shell and bullet casings. Keating hasn't made mention of them.

In this type of conflict between factual allegations, a good investigator will assess the sources of her information. So far, we have the word of Keating and his staff's expertise with the Powerpoint pointer. He has committed to releasing relevant documents to support his account of events—but we have yet to see them. He also referenced a video recording of the raid, but said the footage was currently classified.

"There is no shame in complying with the international criminal law requirements of conducting inquiries, and ultimately, the increasingly contradictory information only adds more support to the need for clarification.

On the opposing side, Hit & Run contains potential insider information from six New Zealand and Afghan commandos who were interviewed about the attack. Those sources could be liable for breach of confidentiality, or alternatively, they may benefit from whistleblower protections. But their status was not discussed by Keating, nor has he made any commitment to protecting them if they step forward.

So where does this leave us in terms of liability at the International Criminal Court? Keating spoke about the strong reputation of the New Zealand military as a "force for good," with an exemplary track record. But a number of countries before us have recognised that responding to public concern is the hallmark of an exemplary force for good. Countries like The Netherlands and the United Kingdom have run national inquiries into military actions in Srebrenica and Iraq. There is no shame in complying with the international criminal law requirements of conducting inquiries, and ultimately, the increasingly contradictory information only adds more support to the need for clarification.

Follow Alison on Twitter.

Alison Cole is a New Zealand international human rights attorney and an international criminal law investigator. She has worked at the International Criminal Court and UN tribunals on Rwanda, former Yugoslavia, Cambodia and Sierra Leone. Alison is an adjunct professor at New York University.

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