The actions described in the book Hit & Run could constitute war crimes under the Geneva Convention. The case for an independent inquiry is now becoming overwhelming, writes geopolitical analyst Paul Buchanan.

Nicky Hager and Jon Stephenson make serious allegations in the book Hit and Run. Among other claims, the authors argue that the New Zealand Special Air Services (NZSAS) conducted a “revenge” attack in 2010 on villages associated with Taliban elements suspected of killing a New Zealand solder a few weeks earlier; that they called in air strikes against unarmed civilians, resulting in multiple deaths and injuries; that they shot dead two unarmed men who unknowingly approached a concealed NZSAS sniper position; and that they destroyed houses, on two separate occasions a few weeks apart, as punishment for those who were suspected of harboring Taliban in those villages.

Under article 33 of the Geneva Convention, which prohibits collective punishment against anyone not directly involved in armed conflict (including destruction of property), these are potential war crimes. As such, the actions of the NZSAS and allied forces during that operation must be investigated thoroughly and independently. Even if no war crimes were committed and the civilian casualties, should they exist, were incurred as an attachment to a professional military operation conducted according to jus in bello standards, an investigation into how the tragedy unfolded is warranted.

It is not good enough for the NZDF or its allies to investigate their own, as that raises the possibility of cover-ups and white washing of culpability and complicity during and after the fact. Indeed, a joint investigation done by the Afghan Defense Ministry and International Security Assistance Force (ISAF) shortly after the event concluded that no civilians were injured or killed in the raids. For years, the NZDF denied that any civilians were involved at all, much less hurt. But now, after claims of civilian casualties were aired in Hit and Run, the NZDF admits that there might have been civilians caught up in the NZSAS operation after all.

Yet the situation has reached an impasse. The NZDF and National government deny the authors’ claims and see little need for an investigation. Hager and Stephenson stand by their account and want an inquiry. Something has to give and it is the relative positions of the contending parties that provide the answer to which side must do so.

Hager and Stephenson are private citizens. They have made serious allegations and their reputations are at stake. The consequences for being wrong will fall on them as individuals. On the other hand, the NZDF and National government are taxpayer-funded elements of a liberal democratic regime. As such they are accountable to the public for their actions. Unlike the Hit and Run authors, they are responsible for safeguarding the reputation of the institutions that they represent and that of the national as a whole. They therefore have no choice but to answer the allegations. If anything, agreeing to an independent inquiry will allow the NZDF to clear the names of its maligned personnel and prove once and for all that Hager and Stephenson are willfully malicious in their coverage of the military and other security agencies. Why the NZDF and government would continue to resist an inquiry given this opportunity is a matter of unhappy conjecture.

The bottom line is this: as a public institution in a liberal democracy, the NZDF is accountable for its actions to the New Zealand public. It can do so without compromising operational security. It must do so because now its professionalism and integrity are in question.

It has been suggested that the New Zealand Police conduct an investigation of the events that fateful August night. I disagree. The police have an mixed history of when it comes to reviewing the actions of uniformed staff and have a vested interest in keeping “on-side” with their military comrades-in-arms given the operational overlap that occurs between the two from time to time. Plus, they already have plenty to investigate, which given their lack of resources makes conducting a thorough investigation of actions undertaken in a foreign land, involving different cultural mores and language barriers, problematic at best.

Instead, it seems reasonable to convene a Board of Inquiry chaired by the Inspector General of Intelligence and Security (IGIS). Although not usually focused on military operations, the IGIS has authority to look into all security-related matters and is the key oversight mechanism on matters of intelligence and security. With the widely respected inspector general, Cheryl Gwyn, as chair, a panel could be convened that involves a senior military judge, a retired High Court justice and perhaps an international jurist of some reputation and experience in such matters. They should have powers of compulsion under oath and be given access to all evidentiary material as warranted (beginning with the account and sources in the book as well as the NZDF response).

There should be plenty of evidence to sift through. Modern military operations involve the use of helmet and body cameras on soldiers as well as gun sight and other cameras on aircraft. Audio recordings of communications between ground and air forces likewise serve as real-time referents on how things unfolded from the vantage point of the participants. Together, they serve as forensic tools for after-action reports compiled in the wake of combat engagements. These reports include de-briefs from soldiers involved in kinetic engagements and summaries of tactics, maneuvers, equipment and personnel used in any given operation. Along with interviews of the participants, the advantage of video and audio evidence is that it helps clarify the who, what, how and when of a particular engagement, thereby lessening the impact of individual confusion due to the “fog of war” when recollecting events. With such evidence, including what is obtained via night vision and infrared devices, investigators can gain an objective measure of how things happened in real time.

For example, did the NZSAS squad take fire from any of the villages? Did their counterparts in the Afghan Crisis Response Unit (CRU) open fire independently of the NZSAS? What was the nature of injuries? Were the dead positively identified as combatants or non-combatants? Did NZSAS personnel clearly identify targets for engagement by close air support? This is important because it is alleged that an NZSAS operator served as the Joint Terminal Air Controller (JTAC) calling in air support and perhaps even “painting” targets with a laser identifier.

That is not enough, though. The inquiry must also focus on what the NZDF command and political leadership did and did not do during and in the wake of events. Did the soldiers on the ground communicate clearly with their superiors in Kabul as to what was happening in real-time? Was intelligence provided for the raid corroborated or was it assembled without corroboration? Did the NZDF commanders in Kabul and Wellington fully apprise the political leadership of what occurred? Were any liberties taken with the reconstruction of events?

These are just a few basic questions that need to be investigated. An inquiry needs to be opened here in New Zealand, and it must be done independent of the principals involved. If that does not happen the next form of recourse is to present a case against the NZDF for war crimes at the International Criminal Court in The Hague (which only gets involved if states refuse to investigate the actions of their own citizens when it comes to potential war crimes). For the sake of the NZDF as well as New Zealand’s international reputation, better justice is served at home rather than from abroad.

Paul G Buchanan is the Director of 36th Parallel Assessments, a geopolitical and strategic analysis consultancy.

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