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Could New Zealand Face the International Criminal Court for War Crimes in Afghanistan?

Investigative journalist Nicky Hager's highly anticipated new book alleges SAS forces killed Afghan civilians in a raid personally signed off by the Prime Minister in 2010.

The coming days are critical to determining New Zealand's liability for war crimes at the International Criminal Court, following today's release of Nicky Hager and Jon Stephenson's new book Hit & Run. I've worked at the Court as an investigator, and at every other UN war crimes tribunal. The key question will be whether New Zealand is willing or able to investigate the allegations regarding SAS troops in Afghanistan during August 2010, or if the International Court will have to step in and do it for us.

Perhaps contrary to what you might expect, war crimes are not a numbers game. One unlawful killing can lead to charges at the International Criminal Court. Furthermore, it can actually be lawful to kill civilians in certain contexts. However, reviewing the 151 pages of this book, I can see there are sufficient grounds to include these allegations in the International Criminal Court preliminary examination against allied troops in Afghanistan—a case which I have worked on.

Nicky Hager at the launch of Hit & Run with co-author Jon Stephenson (far right).

It is considered a war crime to intentionally direct attacks against civilians, to destroy the property of adversaries unless immediately demanded by the conflict, or to torture detainees. International law also requires that after an attack all parties should attempt to take care of wounded, and states must investigate allegations of war crimes by their armed forces.

The book records details of the alleged killing of six civilians in the New Zealand-initiated and led raid, including women and children as young as three, plus injuries from shrapnel and fire. It documents reports of New Zealand troops destroying villagers' homes, and failing to offer help to wounded villagers. It also reports one incident where a captured insurgent is allegedly beaten by New Zealand forces in the back of a van, then handed over to Afghan secret police to be tortured.

New Zealand Defence Force has issued a repeat of their statements in 2011 and 2014 saying no New Zealanders were involved in the killing of civilians.

Nicky Hager talks to the press outside Unity Books.

During the book's launch, suspense was palpable in the crammed floorspace of Unity Books. It was hot with the high body count and the excited anticipation for what was to come. With the launch only announced a few days ago, rumours were swirling that Nicky had followed the precedent of his last well-timed election treatise Dirty Politics and was going to release a take-down of ex-Prime Minister John Key the day before his final speech in Parliament. Nicky, however, denied it was going to be a book about the elections. Nobody told the guy with the "Goodbye National" sign.

True to his word, the new book we awaited while jostling for prime viewing position is not about the upcoming elections—but it is massively political. This is because the key way to avoid investigation by the International Criminal Court is for the national political process to kick in and pursue accountability within our own courts. And as Nicky rightly pointed out during his press conference after the book launch, John Key resigning may well provide the best opportunity for creating political space to pursue this accountability, particularly as Mr Key is alleged in the book to have directly approved the SAS actions.

During the press conference, there was a lot of anxiety among the press about the law. Is New Zealand responsible for war crimes? Is this an attack on our military? The grilling was on a par with the UN press corps tackling the Security Council.

At this point I was confused: I have personally collected evidence of thousands of deaths in a single incident. The Rwanda genocide was a crime scene with nearly one million people killed in 100 days. And yet I have never ever seen a room as packed as Unity Books today about any single one of my cases. I began to feel angry and disgusted at the grossly disproportionate application of caring around the world. But then it struck me. We in New Zealand, we care. That's when I started to cry.

There could be a total outpouring of dismissive and hateful responses to this new book. And the law is indeed complex. At the moment there is not yet an open investigation at the International Criminal Court regarding Afghanistan, but the allegations in Hit & Run could be persuasive information which could bump the assessment forward, with the next update report due out in November this year. The key aspect which could potentially trigger action by the International Criminal Court will be inaction by the New Zealand government. And with a roomful of concerned citizens and press to rival any international response to an international crime, the concerns are clear. What next, Prime Minister?

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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.