UNDER THE INQUIRIES ACT 2013

 

 

IN THE MATTER OF A GOVERNMENT INQUIRY INTO
OPERATION BURNHAM AND
RELATED MATTERS
Date of Minute: 14 September 2018
MINUTE NO 4 OF INQUIRY
Table of Contents

Para No
Introduction 
Summary 
Process for handling classified information 
Inquiry process overall 
Allegations [1 0]
Procedure for dealing with classi?ed information [13]
The classified material [14]
Crown parties? submissions [15]
Afghan villagers? and authors? submissions [19]
The Inquiry ?s process in relation to classified documents [21]
(1) Handling classified information [22]
(ii) Review of classifications [25]
What now? [28]
Inquiry?s overall process [34]
Arguments advanced in support of an adversary-style process [3 5]
The Inquiry ?s current view on process [41]
An inquiry, not a court proceeding [42]
(ii) Further context [49]
Classified information [51]
Confidentiality [56]
Vulnerable witnesses [59]
Natural justice [60]
(iv) The principle of open justice [67]
Conclusion on Inquiry procedure [75]
Allegations [92]
Conclusion [95]

Appendices

Introduction

In Minute No 3, the Inquiry set out its preliminary views on its powers in
relation to classi?ed information and sought submissions on those Views. The
Inquiry has received submissions ?om the core participants;1 from the Department
of Prime Minister and Cabinet (DPMC) on behalf of itself, the Government
Communications and Security Bureau (GCSB) and the New Zealand Security and
Intelligence Service and from the Ministry of Foreign Affairs and Trade
(MFAT). The Inquiry is grateful for the submissions and has found them helpful.

In determining what steps to take now, the Inquiry notes two points from the

submissions:

First, DPMC and the security agencies, MFAT and the New Zealand
Defence Force (NZDF) take the view that they will need to know precisely
how the Inquiry proposes to deal with classi?ed material before any such

material will be made available to the Inquiry.

Second, in addition to addressing the Inquiry?s powers in relation to
classi?ed information, counsel for the Afghan villagers and for
Mr Stephenson have made submissions on the general procedure that the
Inquiry should adopt. These are supported by Mr Hager. Their essential
proposition is that the Inquiry should adopt a traditional adversarial process

to the extent possible. As counsel for Mr Stephenson summarised it:

. a more traditional, adversarial, process is appropriate in the
circumstances, in which the Villagers, Mr Hager and
Mr Stephenson act as the notional plaintiffs, including because it is
likely to be the most effective way to test evidence produced by


NZDF indicated at an early stage that it supports an inquisitorial?style,
investigative approach but has not developed its position in submissions as
that issue was not something that the Inquiry intended to address until after

it had determined its powers in relation to classi?ed information.

 

1 The core participants are the New Zealand Defence Force; the authors of the book Hit Run,

Messrs Hager and Stephenson; and certain Afghan villagers.

 Against this background, we consider that we should set out in this Minute:

how we intend to deal with classi?ed/con?dential information in light of the

submissions received; and
our current views about the procedure for the conduct of the Inquiry.

In addition, we will address the issue of the allegations which are the subject of the
Inquiry. We will then ask for any further written submissions that anyone wishes to
make. If any party seeks an oral hearing on the issues dealt with in the Minute, we

will hold one, at which all issues will be open for legal argument and discussion.
Summary

We begin with a brief summary of our views.

Process for handling classified information

The Inquiry?s process for dealing with classi?ed information will be based

on two fundamental principles:

While such material remains classi?ed, the Inquiry will handle it in
accordance with the Government?s Protective Security Requirements and
will not make it available (whether directly or indirectly) to anyone other
than those assisting the Inquiry who hold the appropriate security clearance

(unless, of course, the originator agrees to disclosure).

The Inquiry has the power, by virtue of 27 of the Inquiries Act 2013 and
70 of the Evidence Act 2006, to assess classi?cation claims in relation to
particular information.2 We will not agree to any process or requirement
that has the effect of limiting our ability to exercise our statutory power. To

assist with the assessment of classi?cation claims, the Inquiry has engaged a

 

2 As we note below, the applicable tests differ as between material controlled by New Zealand and

material controlled by foreign governments or international organisations.

barrister, Mr Ben Keith, who is a former Deputy Inspector-General of

Security and Intelligence.

Inquiry process overall

We think it wrong to focus simply on two competing models of inquiry
methodology - inquisitorial or adversarial. The choice is not a binary one. A third
option, a mixed or hybrid model is also available. Section 14 of the Inquiries Act
gives the Inquiry a wide discretion as to the procedure it will adopt and 15 sets out
the factors that the Inquiry must consider when deciding whether to hold public
hearings. Accordingly, there are two interrelated questions what type of process
should the Inquiry adopt? How much of the Inquiry?s work can be carried out in
public sessions? It will be necessary that we retain some ?exibility in order to deal

with circumstances that are as yet unknown.

Our current view is that the Inquiry should adopt an essentially inquisitorial
or investigative approach, but could incorporate elements of a traditional
adversarial?style approach where appropriate. We develop the reasons for this
below, but note at this stage that there are two considerations that point powerfully

to an inquisitorial and substantially non-public process:

First, some of those who wish to give evidence are vulnerable in some way
and/or will seek con?dentiality in order to give evidence. For example,
certain of the Afghan villagers have already sought orders protecting their
identities. Some of those involved in intelligence gathering or military
activities in relation to Afghanistan may well be willing to provide
information to the Inquiry only on a con?dential basis. In this connection,
the Inquiry notes that it has already been approached by people who say
they have relevant information, but who want assurances of con?dentiality
before they are prepared to speak to us or give evidence. To the extent that
such people are ?whistle blowers?, requests for con?dentiality are not
surprising. In this particular Inquiry, our current view is that a non-public

evidence-gathering process is likely to enhance our ability to get at the truth.

 Second, most of the documentary material relevant to the Inquiry is
presently classi?ed. Even if some or most of it is ultimately declassi?ed,
there will inevitably be signi?cant relevant material that will remain
classi?ed, some of which will be the information of foreign governments or
international agencies. As we explain below, the material that remains

classi?ed must be dealt with in a non?public process.

If we adopt an essentially inquisitorial approach to the gathering of evidence as we
presently propose, we would treat all those who have information to give the
Inquiry as the Inquiry?s witnesses, rather than the witnesses of any particular

participant, and the process for taking evidence would re?ect this.

However, we accept the need to hold public hearings where possible, to
preserve public con?dence in the Inquiry. We think, for example, that the opening
and closing statements of core participants could be heard in public, as could
submissions on legal issues. It may also be possible to have public hearings on
particular technical or similar issues. And there may be other mechanisms through
which we can keep the public informed. For example, we intend to publish the
Inquiry?s Minutes and Rulings on the Inquiry?s website. We also see possible
means to support core participants? engagement where material is not available to
some or all of them. For example, it may be possible to provide summaries of
classi?ed material and opportunities for participants to suggest areas of inquiry or
speci?c questions to be put to witnesses. Transcripts of evidence given by
witnesses who do not seek con?dentiality and are not dealing with classi?ed
information could be made available to core-participants, subject to non-publication

orders.

We emphasise that we have not yet reached a ?nal view on the question of
the procedure for the conduct of the Inquiry and that we intend to provide an

opportunity for further submissions on that topic.

Allegations

[10] We said at the outset of the Inquiry that, because our overall purpose is to
inquire into the allegations of wrongdoing by NZDF in connection with Operation
Burnham and related matters, we needed to have the allegations clearly articulated.
We discuss this below, and seek comment on the draft allegations prepared by

counsel assisting.

[11] We note that NZDF has published a refutation of speci?c allegations made
in Hit Run. We consider that it would be helpful, both to the Inquiry and to the
general public, if NZDF was able to prepare an unreferenced narrative account of

the events at issue as it sees them that could be made publicly available.

[12] We now explain our views on these matters, starting with the Inquiry?s

approach to classi?ed material.

Procedure for dealing with classi?ed information

[13] We begin by giving a brief description of the classi?ed information at issue
as we presently understand it, before brie?y describing the stances of the core

participants and other parties to it. We then set out the Inquiry?s position.

The classified material

[14] Most of the material said to be relevant to the issues in the Inquiry is
presently classi?ed. That classi?ed material can be divided into three broad

categories:

Material derived by GCSB or NZSIS or in cooperation with,
international partners and intelligence networks. Some material within this

category may also be held by Crown agencies other than GCSB and NZSIS.

Material that NZDF holds by virtue of its participation in International
Security Assistance Force/North Atlantic Treaty Organisation 

operations in Afghanistan. As we understand it, some of the material in this

category will originate from foreign sources but some will have been
generated by NZDF in the context of the operations. The

submissions signal two areas of dispute about this category:

First, where its boundaries should be drawn. The category could be
limited to material originated by foreign sources or could include
material generated by NZDF itself in connection with the operations,
including, at its widest, items such as reports from NZDF personnel

in Afghanistan to NZDF Headquarters in Wellington.

(ii) Second, the effect for the purposes of disclosure (to the Inquiry
and/or to core participants) of any relevant international agreements,
such as the Agreement between the North Atlantic Treaty
Organisation and the Government of New Zealand on the Security of

Information dated 3 October 2007.

Other material relating to operations in Afghanistan generated by NZDF for

its purposes.

In addition, it may be that the Ministry of Defence holds con?dential material of a
policy nature that is relevant to the issues in the Inquiry. As will become apparent,

the different categories of material raise different considerations.

Crown parties submissions

[15] The positions of the Crown parties in relation to classi?ed information are

largely similar, although there are some differences.

[l6] NZDF advises that it is committed to providing to the Inquiry all material
that may be relevant to the Inquiry?s Terms of Reference irrespective of its security
classi?cation, but it opposes the disclosure of highly sensitive material to other
participants. NZDF has proposed an approach which involves disclosure of all
relevant information to the Inquiry in the ?rst instance. The Inquiry would hold the

information on a restricted access basis while it carried out a review in order to

identify any information that it considered should be released more widely. NZDF
would then consider whether it agreed that the material identi?ed by the Inquiry is
able to be released more widely. If NZDF took a different View to that taken by the
Inquiry, the issue would be addressed in a closed hearing, presumably a hearing

under 70 of the Evidence Act.

[17] DPMC, GCSB and NZSIS advise that release of partner-controlled
classi?ed material held by them to the Inquiry is unlikely to be permitted under the
existing default disclosure permission, so that speci?c permission will have to be
sought from partners for release. Partners are unlikely to provide permission
without assurances about the handling of information, including that the Inquiry
will not release classi?ed material to persons who do not hold the appropriate
security clearance. Redacted documents or summaries may be available in the
absence of such assurances. DPMC suggests a process that involves the
intelligence agencies summarising any intelligence support provided to NZDF so
that the Inquiry can identify what, if any, of it the Inquiry considers may be relevant
to the issues before it. DPMC then identi?es a number of options for dealing with
any documents relating to the matters identi?ed by the Inquiry. The option selected
would depend on the nature of the particular documents at issue. One of the
options is that the intelligence agencies would seek a non-disclosure order in
respect of particular material before that material would be made available to the

Inquiry and would provide it only after the order is made.

[18] MFAT considers that obtaining consent from NATO or other overseas
partners for the release of classi?ed information that is subject to an obligation of
con?dence will be contingent on those parties understanding how the Inquiry will
access, consider, disclose and report on the information. The degree of concern,
and therefore the extent of assurance required, by overseas partners will re?ect the
nature of the particular material at issue. MFAT considers that the approach
suggested by NZDF could be explored with overseas partners and suggests that the
Inquiry should not seek to resolve issues relating to that information until further
time has been allowed for MFAT and NZDF to make further inquiries of NATO,

and institute inquiries with the United States of America.

Afghan villagers and authors? submissions

[19] The Afghan villagers and the authors have previously signalled that they do
not accept that all classi?ed material provided to the Inquiry will currently justify
classi?cation. Accordingly, the status of classi?ed material is disputed. Moreover,
counsel draw a distinction between foreign-sourced material and locally generated
material on the basis that the former category raises an issue that is irrelevant in
relation to the latter category, namely whether there is a need to protect material
provided in con?dence so as not to disrupt the provision of information in the
future. Necessarily, then, a clear distinction must be drawn between the two
categories. Counsel indicated that they did not accept description of where
the boundary between the two categories was. They submit that they should be
provided with a proper and adequate summary of any material not disclosed to

them on the ground that it is classi?ed.

[20] Mr Hager notes that he has considerable experience analysing defence and
security information in various contexts. He considers that a meticulous
examination of events, times and places is required to identify the truth of what
occurred. He is concerned that NZDF might control decisions about what material
is classi?ed and con?dential, which would impede the process and would, in any
event, be a con?ict of interest given dual roles as custodian of relevant
information and subject of the investigation. Mr Hager drew the Inquiry?s
attention to several inquiries conducted overseas where information that had been
classi?ed was ultimately declassi?ed and made publicly available or re-classi?ed

and made available to core participants.

The Inquiry ?s process in relation to classified documents

[21] As we said at the outset of this Minute, the Inquiry?s process for dealing

with classi?ed information will be based on two fundamental principles:

While such material remains classi?ed, the Inquiry will handle it in

accordance with the Government?s Protective Security Requirements and

will not make it available (whether directly or indirectly)3 to anyone other
than those assisting the Inquiry who hold the appropriate security clearance.
(This is subject to the possibility that the originators of particular documents

may agree to their wider disclosure.)

The Inquiry has the power, by virtue of 27 of the Inquiries Act and 70 of
the Evidence Act, to assess classi?cation claims in relation to particular
information. It will not agree to any process or requirement that has the

effect of limiting the Inquiry?s ability to exercise that statutory power.
We deal with each point in turn.
Handling classified information

[22] The Inquiry will comply with the Government?s Protective Security
Requirements in respect of classi?ed information. In order to achieve this, the

Inquiry has taken two steps:

The Inquirers, the two counsel assisting and key administrative staff hold
security clearances for the classi?ed information the Inquiry will receive.
Access to classi?ed information will be restricted to those members of the

Inquiry team who have the appropriate clearance.

The Inquiry has arranged access to SCIFs (sensitive compartmented
information facilities), safes and cleared IT systems in order to access, store,
and consider classi?ed material. All classi?ed material will be held and
viewed in SCIFs and any interviews or evidence that involves classi?ed

material will take place in suitably secure premises.

[23] As the Inquiry said in Minute No 3, participants in an inquiry do not have a
right to receive all material produced to the inquiry by other participants.

Moreover, an inquiry has the power to order that the inquiry or any part of it be

 

3 For example, such material will not be referred to in the ?nal report in a way that is inconsistent

with, or undermines, its classi?cation.

held in private.4 In making such an order, an inquiry must take account of Speci?ed
criteria, including the extent to which public proceedings may prejudice New
Zealand?s security or defence interests.5 The Inquiry?s Terms of Reference
reinforce this.6 No classi?ed material will be made available to those without
security clearances, although the Inquiry will consider options to support
engagement by core participants, such as redaction and summaries, if feasible and

appropriate.

[24] The Inquiry accepts that it will have to be scrupulous to avoid
compromising any classi?ed information in any material that it makes available to
those who do not hold appropriate security clearances, including its ?nal report.
That report will not disclose material that is classi?ed, but will be informed by it.
Thus, the report will be accurate and reliable but not in breach of security
requirements. The recent public report of the Inquiry of the Inspector-General of
Intelligence and Security in relation to complaints of unlawful intelligence
gathering in the South Paci?c is a good example of how ?ndings can be made in

that way.7
(ii) Review of classifications

[25] As noted in Minute No 3, the Inquiry has the same powers as a judge to
make orders under ss 69 and 70 of the Evidence Act. It will not agree to any
process or arrangement as to the handling of classi?ed information that would have
the effect of limiting its statutory powers in this respect. It does not consider that it

could properly do so.
[26] There are two points to be noted in this context:

First, as counsel for the Afghan Villagers emphasised, in terms of the

operation of 70 of the Evidence Act, different considerations apply to

 

Inquiries Act 2013, 15(1).

Section 

See Terms of Reference Principles of the Inquiry 12-15.

Of?ce of the Inspector-General of Intelligence and Security, Public Report, Complaints arising
?om reports of Government Communications Security Bureau intelligence activity in relation to
the South Pacific, 2009-2015 (Wellington, 4 July 2018).



material held by NZDF and other New Zealand agencies that is the
information of foreign governments or international agencies than apply to
information that NZDF and other agencies hold that is the information of
those agencies. In relation to New Zealand-controlled material, the issue for
the Inquiry under 70 will be whether the disclosure of the information
would prejudice the security or defence of New Zealand, or the
Government?s international relationships. In relation to foreign-controlled
material, there will be an additional consideration, namely whether
disclosure would risk the provision of information on a basis of con?dence

from overseas governments or organisations in the future.

Second, as the Inquiry said in Minute No 3, when the Government
established the current security classi?cation regime in 2002, it recognised
the danger of over-classi?cation and the need for a system of regular review
of classi?ed material to ensure that the justi?cation for classi?cation
remained current. It is unclear to us at this stage to what extent the
classi?ed material that will be provided to us has been subjected to a

rigorous review process.

[27] To assist with the assessment of classi?cation claims, the Inquiry has
engaged a barrister, Mr Ben Keith, a former Deputy Inspector-General of
Intelligence and Security. Mr Keith will provide advice to the Inquiry regarding
matters of classi?cation, including whether there are options such redaction 0r
summaries that could be considered by the Inquiry if documentary or other material
cannot be disclosed. Mr Keith will review the classi?ed material as it is provided
to test the claim to classi?cation. If he has doubts about the continued need for
classi?cation of any material, he will advise the Inquiry and the relevant
Government agency or agencies. He will then discuss the matter with the relevant
agency to see whether agreement can be reached in relation to the material. If no
agreement is reached, the Inquiry will determine the matter. The Inquiry will give
the relevant agency or agencies the opportunity to make submissions in relation to

classi?cation before it reaches a ?nal view. It may also seek further explanations or

take other procedural steps before determining the matter.8 A similar process will
be followed in relation to proposed redactions or summaries that are disputed.
While the Inquiry does not rule out any legitimate exercise of its powers, the main
alternatives in terms of a ruling are maintaining the classi?cation (in which case
it will consider whether the options of redaction or providing a summary are
available) or de- or re-classi?cation of the material (which would likely result in

wider availability, certainly in the case of 
What now?

[28] NZDF, MFAT and DPMC have all said that they cannot make ?nal
decisions about providing the Inquiry with all relevant classi?ed information in
their possession or custody until they understand what procedures the Inquiry
intends to operate in relation to classi?ed information. What we have outlined

above should meet their legitimate concerns.9

[29] We expect that classi?ed material held by NZDF, MFAT, DPMC and other
Government agencies that is not subject to the control of partner governments or
international organisations (whether by international agreement or convention) will
be provided to the Inquiry as soon as practicable. It will be handled in accordance
with the procedures outlined in this Minute. The Inquiry has no objection if
agencies coordinate their bundles of material so that the Inquiry does not receive

multiple copies of identical documents.10

[30] Turning to classi?ed information held by NZDF, MFAT, DPMC and other
Government agencies that is subject to the control of partner governments or
international organisations, we understand that NATO that has an established
process for dealing with these matters and that it is waiting for a formal request for
its consent to release relevant material that it controls to the Inquiry. We also
understand that NATO has expressed its full support for national accountability

mechanisms and has indicated that it will do all it can to enable the Inquiry to meet

 

8
9

This might include seeking other submissions or advice.

For completeness, we note that if the Ministry of Defence holds any relevant material as a result
of its role under the Defence Act 1990, in particular 24, we expect that it will be supplied.
Obviously, this does not apply where there are differences between copies of the same
document, such as handwritten notations.

10

its mandate. As a consequence, we envisage that disclosure of NATO-controlled
material to the Inquiry is unlikely to be problematic. We understand that NATO

will need around 30 days to process requests for material.

[31] We believe that the procedures that we have outlined in this Minute in
relation to the Inquiry?s handling of classi?ed material should be effective in
facilitating consent from NATO and relevant partner governments to providing the
relevant material to the Inquiry. To achieve this, we ask that MFAT give high
priority to seeking, from NATO and partner governments, consent to providing us

with relevant material which they control.

[32] There are two ?lrther matters that we should note:

First, we should signal that we have some concerns about one aspect of the
procedure suggested by DPMC, GCSB and NZSIS. They indicated that
some documents may not be made available to the Inquiry until the Inquiry
has made a permanent non-disclosure order in relation to them. DPMC says
that in seeking a non-disclosure order, the security agencies will provide
evidence in support and, where possible, will provide a redacted or
summarised version of the document at a lower classi?cation. While we do
not exclude the possibility that we may be able to make a ruling on the basis
of such material, we think it more likely that we will feel unable to exercise
our power to make a non-disclosure order without considering the

documents themselves.

Second, the Inspector-General of Intelligence and Security has initiated an
inquiry which may overlap in some respects with our Inquiry. To the extent
possible, we wish to avoid doubling-up. We will discuss with the Inspector-
General the relationship between the two inquiries, in particular, issues

about the provision of classi?ed information.

[33] We conclude by saying that because:

 the Inquiry now has the capacity to handle any classi?ed material in

accordance with the Government?s Protective Security Requirements;

the Inquiry?s jurisdiction is explicitly con?ned to New Zealand actors it
has no jurisdiction to make determinations about the actions of forces or

of?cials other than NZDF forces or New Zealand of?cials; and

the Inquiry has the statutory power to require disclosure to it of all relevant
material in the possession of New Zealand actors, which it has not yet

formally exercised but which it will exercise in due course,

we expect that issues about disclosure of material to the Inquiry will be quickly

resolved.
Inquiry?s overall process

[34] We will brie?y summarise the position taken by counsel for the Afghan
Villagers and for Mr Stephenson, and by Mr Hager on his own account, on the
Inquiry?s process before setting out our own views, as they presently stand.11 As

we have said, they argued for an adversarial process to the fullest extent possible.
Arguments advanced in support of an adversarial-style process

[3 5] In their memorandum of 4 July 2018, counsel for the Afghan villagers made

the following submission:

Counsel submit that the purpose of the Inquiry requires a process that
allows for the de?nitive determination (where possible) of the factual
issues within the Inquiry?s remit. To this end, the Inquiry must allow for
the effective testing of contested and disputed facts, by use of adversarial
processes including cross-examination, rebuttal, disclosure to all core
participants of all information not restricted by direction of the Inquiry, and
the substantive inclusion of the Villagers in the proceedings.

 

As we noted at the outset, we have not yet formally sought the parties? views on the Inquiry?s
process, so NZDF have not made submissions on the issue, besides indicating at an early stage
that they supported an inquisitorial, investigative process.

Counsel indicated that submission in favour of an investigative and
inquisitorial process was resisted. The dual role of NZDF as, on the one hand, the
holder of, or conduit for, much of the material relevant to the Inquiry and, on the
other, as a party accused of serious misconduct and illegality by other parties was
highlighted. Counsel submitted that the core participants must be able to engage
fully with the contested facts ?including through discovery and disclosure,
challenging of claims to withhold information, and ultimately through examination

and cross-examination of witnesses?.

[36] In their memorandum of 10 August 2018, counsel for the villagers argued
that under the Inquiries Act, natural justice comes into play not only when the
Inquiry is contemplating making a ?nding adverse to a person or of fault, but also
when making a decision as to the conduct of the Inquiry. They argued that the
Inquiry has procedural and investigative duties with respect to the alleged killings
in Afghanistan which form part of the international law obligations regarding the
?right to life?.12 The State, they submitted, has a positive duty to protect the right to
life, which requires it to investigate possible or suspected breaches and to provide a
remedy where a breach is proved. It is a ?key aim? of the Inquiry to ful?l the

requisite procedural and investigative obligations.

[37] Counsel argued that the villagers have a right to be heard. This requires that
they have access to as much of the material before the Inquiry as possible, even if
counsel are required to give con?dentiality undertakings. In addition, the villagers
have a right to respond to adverse ?ndings, which included a right to cross-examine
key witnesses. As victims, the Afghan villagers are entitled to participate fully and
actively in the Inquiry.

[38] Counsel for Mr Stephenson relied on 27(1) of the New Zealand Bill of
Rights Act 1990 (NZBORA), which provides:

Every person has the right to the observance of the principles of natural
justice by any tribunal or other public authority which has the power to

 

12 Counsel refer to the New Zealand Bill of Rights Act 1990, 8 and the United Nations
International Covenant on Civil and Political Rights, 999 UNTS 71 (opened for signature
16 December 1966, entered into force 23 March 1976), art 6.

make a determination in respect of that person's rights, obligations, or
interests protected or recognised by law.

Counsel argued that 27 was engaged because the Inquiry had the power to make

determinations in respect of the rights, obligations and interests of others. 13

[39] Counsel noted that 5 of NZBORA provides that the rights and freedoms in
NZBORA may be subject ?only to such limits as can be demonstrably justi?ed in a
free and democratic society?. In relation to classi?ed material, this meant that there
should be a strong reason not to disclose and that disclosure should be the default
position.14 Counsel referred to a number of cases, including the decision of the
United Kingdom Supreme Court in Al Rawi Security Service,15 in support of their

argument that closed hearings and similar processes should be avoided.

[40] Mr Hager supported the submissions made by counsel for the Afghan
villagers. He said that he strongly supported an adversarial process, but one in
which the Inquiry plays an investigative and inquisitorial role as well. He
characterised the process suggested by NZDF as a ?closed, securitised process?.
Mr Hager noted that some of his con?dential sources may not be prepared to
provide information to the Inquiry, either at all or without appropriate

con?dentiality protections in place.
The Inquiry is current view on process

[41] In determining the procedure for the conduct of the Inquiry, we will have to

take account of six matters:
First, this is an inquiry, not a court proceeding.

Second, some of the material before the Inquiry will be classi?ed, and some
of that will be information controlled by foreign governments or

international organisations, so that the potential disruption of the provision

 

?3 Citing Combined Beneficiaries Union Auckland COGS Committee [2008] NZCA 423, [2009] 2
NZLR 56.

Citing the Law Commission National Security Information in Proceedings (NZLC PP38, 2015)
at 6.9.

'5 Al Rawi Security Service [2011] UKSC 34, [2012] 1 AC 531.

of information ?'om such governments or organisations to New Zealand

becomes a relevant consideration.

(0) Third, apart from issues of classi?cation, there will be issues of
con?dentiality. For example, some witnesses will seek con?dentiality

before they agree to give evidence.

Fourth, some of those who give evidence to the Inquiry will be vulnerable.
In particular, potential witnesses in Afghanistan (the villagers and members
of the Afghan armed forces) may be at risk, physically and 

Their position must be respected and dealt with appropriately.

Fifth, there is the Inquiry?s obligation to conduct the inquiry fairly and to

meet the requirements of natural justice.

Finally, the Inquiry must take into account the principle of open justice and

the need to preserve public con?dence in the Inquiry?s work.

We address each matter in turn, dealing with the matters identi?ed in and

above under the general heading ?Further context?.
An inquiry, not a court proceeding

[42] To state the obvious, this is an inquiry, not a court proceeding. It was
established under the Inquiries Act for the purpose of inquiring into and reporting
on allegations of wrongdoing by NZDF personnel in connection with Operation
Burnham and related matters. An important purpose of the Inquiries Act is to
enable inquiries to be carried ou ?effectively, ef?ciently, and fairly?.16 As
Sir Richard Scott, then Vice-Chancellor, said extrajudicially, there is an inevitable

tension between the requirements of fairness and the need for ef?ciency. 17

 

?6 Inquiries Act 2013, 

17 Richard Scott ?Procedures at Inquiries the Duty to be Fair? (1995) 111 LQR 596 at 597.
Sir Richard (later Baron Scott of Foscote) conducted an inquiry into the export by English ?rms
of defence equipment and dual-use goods to Iraq. It reported in 1996.

[43] The Inquiry has no power to determine civil, criminal or disciplinary
liability, although it may make ?ndings of fault.18 It has the power to conduct the
inquiry as it considers appropriate, subject to the Inquiries Act and the Terms of
Reference.19 In terms of the Inquiries Act, the Inquiry may determine matters such
as whether to conduct interviews and if so, who to interview; whether to call
witnesses and, if so, who to call; whether to hold hearings and, if so, when and
where the hearings will be held; whether to receive evidence or submissions from
any person participating in the inquiry (subject to the caveat that core participants
have a right to give evidence and make submissions);20 whether to receive oral or
written evidence or submissions and the manner and form of the evidence or
submissions; and whether to allow or restrict cross-examination of witnesses.21
This is, however, subject to the Terms of Reference, which provide that the Inquiry
is expected to consider (among other things) available evidence of relevant

government officials and NZDF personnel (including those who took part in

Operation Bumham) and evidence of ?Afghan nationals and/or other witnesses?.

[44] Under the Inquiries Act, the Inquiry may receive any evidence that it
considers may assist it to deal effectively with the subject of the inquiry whether or
not it would be admissible in court.22 However, witnesses and others participating
in an inquiry have the same immunities and privileges as if they were appearing in
civil proceedings, although such claims can be assessed by an inquiry in the same

way as they can be assessed by a court.23

[45] As this structure indicates, an important component of an inquiry such as the
present is to investigate in order to ascertain what happened. In conventional
litigation in the courts, it is the parties who conduct investigations into the factual
and legal background in the course of formulating their cases, which they then
present to the court through pleadings (or, in criminal cases, charges), evidence and

submissions at trial. The court then determines the matter based on the material

 

Section 11.

19 Section 14(1).

20 Section 17(3).

2? Section 14(4).

Section 19.

23 Sections 20(0) and 27(1).

presented by the parties. Obviously, rules that apply to trials may be inapposite in

relation to inquiries.

[46] Nevertheless, natural justice considerations are of vital importance. Section
14(2) of the Inquiries Act provides that, when making a decision as to its procedure
or conduct, an inquiry must comply with the principles of natural justice and have

regard to the need to avoid unnecessary delay or cost for all involved.

[47] We will return to 14(2) and the requirements of natural justice later in this
Minute. But putting that topic to one side for the moment, the philosophy
underlying the Act largely re?ects the philosophy underlying the approach of the
common law to inquiries. This Inquiry is not an adjudicative process to resolve a
dispute between parties in accordance with their rights and obligations at law. In
that sense, the Inquiry has no legal consequences. Rather, it is an investigation into
Operation Bumham and related matters, at the end of which the Inquirers will state
their conclusions as to the facts and other matters on which they are required to

report and make recommendations. None of it will be binding on anyone.

[48] It might be argued that this particular Inquiry has the characteristics of the
disputes that courts commonly deal with, in the sense that it is dealing with
allegations of wrongdoing made by two groups of core participants against another
core participant who rejects them. In short, there is a lis. We return to this point in

our discussion of the requirements of natural justice.

(ii) Further context

[49] The Inquiry faces signi?cant challenges in terms of procedure in relation to:

the treatment of classi?ed information;

the need to preserve con?dentiality in certain contexts; and

the need to treat vulnerable witnesses appropriately.

All place constraints on the Inquiry?s ability to utilise a traditional adversarial-style

process.

[50] We address each matter in turn.

Classified information

[51] As we have said, it is inevitable that some material relevant to the issues in
the Inquiry will be classi?ed and/or subject to obligations of con?dence. This
creates dif?culties for the proper operation of an adversarial process, as the United

Kingdom Supreme Court discussed in Al Rawi Security Service.24

[52] In that case, the claimants had brought proceedings against the Security
Service and other State agencies alleging that those agencies had been complicit in
their detention and mistreatment by foreign authorities. The State parties wished to
put in evidence certain classi?ed material and wished to utilise what was referred to

?25 to do so (rather than dealing with the material

as a ?closed material procedure
through the usual public interest immunity process). They argued that this process
could be adopted by a court in the exercise of its inherent jurisdiction. The

claimants challenged the proposed use of the closed material procedure.

[53] The claims were settled before the matter came on for hearing in the
Supreme Court, but the Court nevertheless addressed the issues given their
importance. The Court concluded that the closed material procedure was
inconsistent with certain fundamental features of civil and criminal trials at
common law and so could not be utilised unless statutorily authorised. It also
criticised the use of special advocates. The fundamental features to which the

Court referred were the principles of open justice and of natural justice.

 

24 Al Rawi, above 154.

25 In essence, the State parties wished to use classi?ed security information in their defence in the
proceedings. That material would not be disclosed to the claimants (or, of course, the public) but
would be disclosed to the court and to special advocates, who would make submissions about it
on behalf of the claimants. This would presumably require the court to issue ?open? and
?closed? judgments. See the de?nition of ?closed material procedure? in the judgment of Lord
Dyson JSC at 

[54] Given the incompatibility of a closed material procedure with the traditional
trial process, Lord Brown SC expressed the view that cases involving highly
sensitive security issues should go for determination by a body akin to the
Investigatory Powers Tribunal ?which does not pretend to be deciding such claims
on a remotely conventional basis?.26 Lord Brown went on to say that claims
involving the complicity of intelligence services in torture could not simply be
ignored, which was why the claims in issue were, following the settlement, being

investigated by Sir Peter Gibson in the Detainee Inquiry.27

[55] Contrary to the position adopted in Al Rawi, the New Zealand courts have
been prepared to utilise the ?closed material? procedure in situations involving
detention or allegations of breach of human rights, making use of special

advocates.28

Nevertheless, if there is a signi?cant body of sensitive security
information which is appropriately classi?ed and centrally relevant to the
issues before the Inquiry, it will be dif?cult to operate a process that accords with
the conventional adversarial model. And, of course, unlike the courts, the Inquiry

does have the statutory power to utilise a closed process.
Confidentiality

[56] The book Hit Run contains numerous references to con?dential sources.
Some of these sources are, as we understand it, past or present members of NZDF.
We also understand that, while some sources are likely to be willing to give
evidence on an open basis, others will do so only on a con?dential basis. To the
extent that these latter sources express views adverse to the interests of NZDF,
NZDF would presumably wish to cross-examine them. However, it is difficult to
see how NZDF could be permitted to do this, given the need to preserve

con?dentiality.29

 

26 At 

27 At The Detainee Inquiry was ultimately not completed: see Sir Peter Gibson, The Report of
the Detainee Inquiry (United Kingdom Cabinet Of?ce, December 2013) at 1.1.

See, for example, the Zaoui and Dotcom litigation.

This is subject to 68 of the Evidence Act, which deals with the protection of journalists?
sources.

28
29

[57] In addition, the Inquiry will be calling for people who have relevant
information to come forward, if necessary on a con?dential basis. Some who come
forward may have been, or may continue to be, employed by NZDF. Some within
this group may be, in effect, whistle blowers who are giving information to which
they are privy as a result of their work experience, but which is contrary to the
official narrative. These people are likely to have concerns about both their privacy
and anonymity and will need to be protected from the possibility of organisational
pressure and intimidation. The Inquiry has already received contacts from people
who say they have relevant information but wish to speak on a basis of con?dence.
Again, it is dif?cult to see how such witnesses could be cross-examined by other
parties while preserving the requested con?dentiality. The procedure adopted by

the Inquiry will have to accommodate these eventualities.30

[58] In addition to these categories, there are others who may be prepared to give
evidence but only on a con?dential basis, for example intelligence of?cials, who
may be compromised if their identity is known and/or their sources of intelligence

are disclosed.
Vulnerable witnesses

[59] The international experience of inquiries such as the present one is that there
is a signi?cant risk that vulnerable witnesses will be further harmed if inappropriate
information-gathering procedures are used.3?1 To take the most obvious example, it

may not be appropriate to expose Afghan villagers to a process such as cross-

 

30 The Protected Disclosures Act 2000 does not appear to apply in this context. However, the
Inquiry has ample powers to protect whistle blowers should there be a need to do so.

Right to the Truth. Report of the O?ice of the High Commissioner for Human Rights
(2009) at ?The practice of both ICTY and ICTR reveals that the concern for
the security and safety of individuals and the needs of victims and witnesses have
been the overarching concern.? See also Rome Statute of the International Criminal Court 2187
UNTS 3 (opened for signature 17 July 1998, entered into force 1 July 2002), art 68(1): ?The
Court shall take appropriate measures to protect the safety, physical and well-
being, dignity and privacy of victims and witnesses?; Robert Petit, David Akerson and Maria
Warren (eds) Prosecuting Mass Atrocities, Lessons from the International Tribunals (Open
Society Foundations, New York, 2012) at [1238-1239]: ?Where possible, the prosecution team
should work with the defence to reduce or remove unnecessary cross-examination on matters
relating to peripheral issues or disclosure in order to limit the amount of time the witness will be
giving evidence. There is signi?cant national jurisprudence on limiting cross-examination to
protect special witnesses. The prosecution team should be fully acquainted with this
jurisprudence and be prepared to argue this law when special victims are testifying to protect
them.?

31

examination by counsel for NZDF. Rather, as is the case with classi?ed
information, the Inquiry may have to utilise other means to engage fairly and
effectively with that evidence. There are others who may also be vulnerable, such
as past or present members of NZDF or of the local Afghan forces who participated
in some of the activities at issue, so as to require an approach other than an

adversarial one.
Natural justice

[60] The Inquiry and its members have a statutory obligation to act
independently, impartially and fairly.32 More particularly, in making a decision as
to the procedure or conduct of an inquiry, or in making a ?nding that is adverse to
any person, the Inquiry must comply with the principles of natural justice.33 What

are the requirements of natural justice in this context?

[61] Natural justice is a ?exible concept, taking its precise content from the
context in which it used. It has two key features, however, the ?rst being that a
decision-maker must be disinterested and unbiased, and the second that parties are
given proper notice and an opportunity to be heard.34 In Al Rawi, Lord Dyson SC
described natural justice has having several elements in the context of a traditional

trial. He said23?5

A party has a right to know the case against him and the evidence on which
it is based. He is entitled to have the opportunity to respond to any such
evidence and to any submissions made by the other side. The other side
may not advance contentions or adduce evidence of which he is kept in
ignorance.

Lord Dyson went on to say that a further aspect of the principle of natural justice
was that the parties should be given the opportunity to call their own witnesses and
to cross-examine opposing witnesses.36 Implicit in these rights is the right of a

party to be present throughout the trial.37

 

3?2 Inquiries Act 2013, 10.

33 Section 

3? See Combined Bene?ciaries Union Inc Auckland City COGS Committee [2008] NZCA 423,
[2009] 2 NZLR 56 at 

35 AI Rawi, above 15, at 

36 At 

37 At 

[62] However, it is well recognised that the principles of natural justice
applicable in a trial context do not necessarily apply in the context of an inquiry, as
the Court of Appeal reaffirmed in In re Royal Commission to Inquire into and
Report upon State Services in New Zealand.38 There, North said that an inquiry is

neither a court nor a tribunal and went on to say:39

There is nothing approaching a lis, a Commission has no general power of
adjudication, it determines nobody?s rights, its report is binding on no one.

Cleary made observations to similar effect, describing the ?basic difference?

between a lis inter partes and an inquiry by Commissioners as follows:40

In a controversy between the parties the function of the Court is ?to decide
the issue between those parties, with whom alone it rests to initiate or
defend or compromise the proceedings? The function of a Commission
of Inquiry, on the other hand, is inquisitorial in nature. It does not wait for
issues to be submitted, but itself originates inquiry into matters which it is
charged to investigate. There are, indeed, no issues as in a suit between
parties; no ?party? has the conduct of proceedings, and no ?parties?
between them can con?ne the subject matter of the inquiry or place any
limit on the extent of the evidence or information which the Commission
may wish to obtain.

[63] The Privy Council in Re Erebus Royal Commission; Air New Zealand 
Mahon, while acknowledging important differences between ordinary civil
proceedings and inquiries, held that a costs order made against Air New Zealand by
Mahon had been made in breach of the rules of natural justice.41 Delivering the

advice of the Privy Council, Lord Diplock said:42

The rules of natural justice that are germane to this appeal can, in their
Lordships? view, be reduced to those two that were referred to by the Court
of Appeal in England in Deputy Industrial Injuries Commissioner; ex
parte Moore [1965] 1 QB 456 at pp 480, 490, which was dealing with the
exercise of an investigative jurisdiction, though one of a different kind from
that which was being undertaken by the Judge inquiring into the Mt Erebus
disaster. The ?rst rule is that the person making a ?nding in the exercise of
such a jurisdiction must base his decision upon evidence that has some
probative value in the sense described below. The second rule is that he
must listen fairly to any relevant evidence con?icting with the ?nding and
any rational argument against the finding that a person represented at the

 

38 In re Royal Commission to Inquire into and Report upon State Services in New Zealand [1962]

NZLR 96 (CA), discussed in Jason Beer QC (ed) Public Inquiries (CUP, 2011) at 
39 At 109.
4? At 115?116.
2 Re Erebus Royal Commission; Air New Zealand Mahon [1983] NZLR 662 (PC).
At 671.

inquiry, whose interests (including in that term career or reputation) may be
adversely affected by it, may wish to place before him or would have so
wished if he had been aware of the risk of the ?nding being made.

The technical rules of evidence applicable to civil or criminal litigation
form no part of the rules of natural justice. What is required by the ?rst
rule is that the decision to make the ?nding must be based on some
material that tends logically to show the existence of facts consistent with
the ?nding being made and that the reasoning supportive if the ?nding, if it
be disclosed, is not logically self-contradictory.

The second rule requires that any person represented at the inquiry who
will be adversely affected by the decision to make the ?nding should not be
left in the dark as to the risk of the ?nding being made and thus deprived of
any opportunity to adduce additional material of probative value which,
had it been placed before the decision?maker, might have deterred him from
making the ?nding even though it cannot be predicated that it would
inevitably have had that result.

[64] Section 14(3) of the Inquires Act incorporates, in effect, the two rules

referred to in Re Erebus. It provides:

(3) If an inquiry proposes to make a ?nding that is adverse to any
person, the inquiry must, using whatever procedure it may
determine, be satis?ed that the person?

is aware of the matters on which the proposed ?nding is
based; and

has an opportunity, any time during the course of the
inquiry, to respond on those matters.

It is important to emphasise that while 14(3) sets out important substantive
requirements, it speci?cally reserves to the inquiry?s decision the means by which it

will meet those requirements ?using whatever procedure it may determine?.

[65] Against this background, we consider that the requirement in 14(2)(a) that
an inquiry must comply with the principles of natural justice in making a decision
as to the procedure or conduct of an inquiry was not intended to require an inquiry
to apply the range of natural justice requirements that would apply in a trial context.
Rather, it means that an inquiry?s processes must be such as to give those about
whom an inquiry is considering making adverse comment an opportunity to
respond. In order to exercise that right of response, the person affected will have to
know what it is that has led the inquiry to the point of considering making adverse

comment. Given that context is critical to the content of the concept of natural

justice, however, we cannot rule out the possibility that other natural justice
considerations will arise in the course of the Inquiry. We accept the need to be both

vigilant and ?exible to ensure fairness.

[66] As we noted earlier, it might be argued that this Inquiry is like a trial in the
sense that it involves a [is between disputing parties and that this justi?es a more
adversarial approach than might otherwise be taken. While there is some force in
this analysis, we note that inquiries are often set up to investigate allegations of
wrongdoing that are conteSted. They do not thereby become notional trials with
notional plaintiffs and notional defendants, nor do they adjudicate a lis. We agree
with the observations of Vice-Chancellor Scott in the article already referred to,
when, having described the characteristics of the adversarial trial system, he went

3
on to say:4

In an inquisitorial Inquiry there are no litigants. There are simply witnesses
who have, or may have, knowledge of some of the matters under
investigation. The witnesses have no ?case? to promote. It is true that they
may have an interest in protecting their reputations, and an interest in
answering as cogently and comprehensively as possible allegations made
against them. But they have no ?case? in the adversarial sense. Similarly,
there is no ?case? against any witnesses. There may be damaging factual
evidence given by others which the witness disputes. There may be
opinion evidence given by others which disparages the witness. In these
events the witness may need an opportunity to give his own evidence in
refutation. But still he is not answering a case against himself in an
adversarial sense. He is simply a witness giving his own evidence in
circumstances in which he has a personal interest in being believed.

(iv) The principle of open justice

[67] Section 15(1) of the Inquiries Act gives the Inquiry wide powers to forbid
the publication of evidence and submissions, to hold the Inquiry or any part of it in
private and to protect the identity of witnesses. In making decisions under 15(1),

the Inquiry must take into account:44

the bene?ts of observing the principle of open justice; and

the risk of prejudice to public con?dence in the proceedings of the
inquiry; and

 

43 Scott, above 11 17, at 598-599.
4? Section 15(3)

 the need for the inquiry to ascertain the facts pr0perly; and

the extent to which public proceedings may prejudice the security,
defence, or economic interests of New Zealand; and

the privacy interests of any individual; and

whether it would interfere with the administration of justice,
including any person?s right to a fair trial, if an order were not
made under subsection and

any other countervailing interests.

[68] In the common law system, the principle of open justice is a critical element
of adjudication through the courts. In Al Rawi, Lord Dyson described it as ?a
fundamental common law principle?.45 In (Mohamed) Secretary of State for

Foreign and Commonwealth A??zirs (No 2), Thomas LJ said:46

The reasons most commonly expressed as to why the courts must sit and do
justice in public are as a safeguard against judicial arbitrariness,
or inappropriate behaviour and the maintenance of public
trust, con?dence and respect for the impartial administration of justice. It
has also been noted that sitting in public can make evidence become
available. Furthermore the public sitting of a court enables fair and
accurate reporting to a wider public and makes uninformed and inaccurate
comment about the proceedings less likely:

[69] Thomas went on to say that there were two further reasons for the open
justice principle.47 The ?rst is that a judge?s duty to uphold the rule of law does not
relate simply to ensuring that a particular dispute between parties is resolved openly
it also encompasses ensuring that matters coming to the attention of the court
during the proceedings that appear to involve an infringement of the rule of law are
dealt with openly. The second is that facts relating to issues of public interest
which would not otherwise emerge will be brought into the public domain.
Information of this type could be important in a democracy, because it facilitates
free speech, which promotes political debate and government accountability. In the

appeal from this judgment, Lord Judge CJ discussed the open justice principle in

 

45 Al Rawi', above 15. at 

46 (Mohamed) Secretary of State for Foreign and Commonwealth A?airs (No 2) [2009] EWHC
152 (Admin), [2009] 1 WLR 2653 at [36] (citations omitted).

47 At 

similar terms, noting that ?the principles of freedom of expression, democratic
48

accountability and the rule of law are integral to the principle of open justice
[70] Powerful as the principle of open justice is, however, there is no
presumption at common law that inquiries must be conducted by way of a public
process. This is made clear in cases such as (Persey) Environment Secretary49
and (Howard) Secretary of State for Health.50 While the English authorities
provide support for the view that there are good reasons to follow a public process
where an inquiry is established to look into discrete allegations of wrongdoing by
State actors in the past, ultimately the decision as to a public or private process

depends upon the circumstances of the particular inquiry.

[71] Section 15(3) draws attention to the terms of reference for the particular
inquiry. It provides that ?if the instrument that establishes an inquiry restricts any
part or aspect of the inquiry from public access, the inquiry must make such orders
under [s 15(1)] as are necessary to give effect to the restrictions?. The Inquiry?s
Terms of Reference provide that the Inquiry ?may? restrict access to ?inquiry
information? in order (among other things) to protect the security or defence
interests of New Zealand, the Government?s international relations, the
con?dentiality of information provided to New Zealand on a basis of con?dence by
any other country or international organisation, or the identity of witnesses.
Accordingly, the Terms of Reference for the Inquiry contemplate that the Inquiry
may not be able to operate in a fully public way.

[72] We accept that, in principle, it is desirable that an inquiry such as the present
operate in public. Serious allegations have been made against the NZDF and others
in relation to particular operations in Afghanistan in 2010. They are to be examined

by an independent Inquiry. Ideally, the allegations should be examined through a

 

48 (Mohamed) Secretary of State for Foreign and Commonwealth A?airs (No 2) [2010] EWCA
65, [2011] QB 218 at 

9 (Persey) Environment Secretary [2002] EWHC 371 (Admin), [2003] QB 794.

so (Howard) Secretary of State for Health [2002] EWHC 396 (Admin), [2003] QB 830. See
also Kennedy Charity Commission [2014] UKSC 20, [2015] AC 455 at [48] per Lord Mance
JSC (with whom Lords Neuberger and Clarke JJSC agreed) and per Lord Camworth JSC at


public process so as to enhance public con?dence in both the process and the

outcome, whatever it may be.

[73] However, there are features of this Inquiry which strongly militate against a

fully public process. In particular:

There is a real risk that we will not be able to get at the truth unless we are
able to offer complete con?dentiality to some witnesses. In addition, we
have an obligation to put in place arrangements to protect vulnerable

witnesses.

Whatever the ultimate extent of the classi?ed material, there will be some

important material that remains classi?ed.

In addition, although we would not regard this as a compelling consideration
standing alone, we are also conscious of the need to guard against the possibility

that fair trial rights will be affected.

[74] The circumstance that some of the Inquiry?s work will have to proceed in
private does not mean, of course, that all its work must be done in private or that we
cannot take steps to facilitate public understanding. We consider that we can take
steps to assist the public to understand matters such as the allegations made, the
nature of rebuttal, the methods that the Inquiry will use, the Inquiry?s
Views on the legal issues that it must address, and the background to at least some
of the technical issues the Inquiry will confront (such as geo-spatial mapping). We

return to these measures below.

Conclusion on Inquiry procedure

[75] We now outline the methods the Inquiry proposes to use to undertake its
fact-?nding role. As will be apparent, there are factors that render this particular
Inquiry procedurally complicated. These factors include the need to preserve
con?dentiality for some material where the security of New Zealand may be

involved, and the need to secure the safety of witnesses who give evidence and

protect their human rights and privacy to the extent appropriate. Further, it will be
necessary to ensure that witnesses understand the processes of the Inquiry and are
informed of any risks that its methods may pose for them. Vulnerable witnesses
need protection and the Inquiry also needs to be vigilant to do no harm by its
actions, including the processes that it adopts to take evidence. Our suggested

process is informed by international best practice.

[76] The Inquiry proposes to use a mixed model methodology, one that is mainly
inquisitorial but may have elements of traditional adversarial processes where that
is appropriate. For example, witnesses will be witnesses of the Inquiry, not the
witnesses of particular participants. In general, witnesses will be questioned and
tested by the Inquiry, whether directly or through counsel assisting, although there
may be circumstances where the Inquiry considers that it would be assisted by
cross-examination by the core participants? counsel. Where relevant evidence is not
available to a core participant (as when evidence is provided in con?dence or
involves classi?ed information), we will consider steps to facilitate participant

engagement, such as summaries.

[77] This does not, of course, mean that core participants will have no ability to
in?uence the Inquiry?s evidence-gathering process. We envisage that core
participants will, for example, put forward or suggest people for the Inquiry to
approach to be interviewed and/or to give evidence, suggest topics to be pursued in
questioning and suggest particular questions or sequences of questions to be put to

particular witnesses.

[78] In adopting the approach outlined above, we note our general agreement

with the following observations of Vice-Chancellor Scott:51

Every witness is the Inquiry?s witness. Every witness must for the sake
not only of fairness but also of ef?ciency, be given proper notice of the
matters in respect of which he or she will be asked questions. For the
purposes of an inquisitorial hearing conducted before an Inquiry, however,
the distinction between examination-in-chief, cross-examination and re-
examination is meaningless. All questions to the witness are part of the
investigative process designed to uncover the truth about the matter under
investigation. They are not designed to prove or disprove a ?case?.

 

51 Scott, above 17, at 605.

And later:52

In an inquisitorial Inquiry, the questioning of the witness by the Inquiry is
not an examination-in?chief, nor is it cross-examination. Hearsay evidence
may be sought. Opinions, whether or not eXpert, may be sought.
Questions to which the questioner does not know the answer will
frequently be asked and, indeed, will be asked because the questioner
does not know the answer. The techniques of questioning witnesses in
adversarial litigation can be set aside. The questioning process is, or should
be, a part of a thorough investigation to determine the truth. It is not a
process designed either to promote or to demolish a ?case?.

[79] We acknowledge the importance of open process and the need to maintain
public con?dence in the Inquiry?s work as a general proposition, the more open
the process, the easier it is to maintain public con?dence in it. Despite this, the
factors which we have discussed above point to the conclusion that not only will
substantial portions of the Inquiry have to be conducted by inquisitorial methods,

but also all or most of its evidence-gathering activities will have to occur in private.

[80] We do not think it feasible to hold a programme of both private and public
hearings of evidence from witnesses of fact. That would provide a misleading
impression to the public; it would be logistically dif?cult to operate; and it would
be impractical, in our judgment, to switch from public hearings for the taking of
evidence and back to private ones, bearing in mind the added complication that any
of the evidence relating to classi?ed material will need to be heard in an appropriate
secure facility. We are satis?ed, however, that the Inquiry will be able to meet all
of its legal obligations set out in the legislation and conduct a fair inquiry that will
be as open as it can be in the circumstances. We note that what we say above is
subject to the quali?cation that, when we have seen all the documents and have a

better feel for the issues in the Inquiry, our views on these matters may change.

[81] To achieve some degree of openness, the Inquiry has already determined
that its Minutes and Rulings will be published on its website, subject to a ?ve
working-day delay to allow for the parties to seek redactions on the ground of
con?dentiality. Moreover, the Inquiry considers that legal argument should take
place in public hearings and that submissions on legal issues should also be

published on the Inquiry?s website, again, subject to the possibility of redactions at

 

52 At610.

the request of the parties for reasons of con?dentiality. In addition, we consider
that it may be possible to have public hearings on some discrete issues. A possible
example is expert evidence on a particular topic, say geo-spatial mapping. And we

consider that opening and closing statements should be made in public session.

[82] To facilitate evidence gathering, the Inquiry will advertise on its website,
through the NZDF internal communication system and in selected New Zealand
media outlets for people to provide any information they may have relevant to the

issues before the Inquiry.

[83] People who wish to provide information to the Inquiry should make contact
by using the process on the Inquiry?s website as set out in Appendix 1. Where a
person wishes to provide information in con?dence, that will be respected. The
Inquiry has the statutory powers necessary to preserve con?dence, and its processes

are intended to ensure that con?dence is protected.

[84] For the Afghan villagers and other witnesses from Afghanistan (such as
members of the Afghan Crisis Response Unit), enhanced arrangements will be
necessary. Afghan residents are likely to be vulnerable due to their current
circumstances and their geographical separation from the Inquiry. Villagers
alleging that they were victims of the military action, where their dwellings were
destroyed or otherwise disturbed and their relatives and friends killed or injured, are
likely to be particularly vulnerable. The possibility of injury in these
circumstances cannot be overlooked. It is important to provide them with adequate
security when being interviewed or giving evidence and to ensure they experience
no avoidable trauma as a result of the Inquiry?s work. The Inquiry will make every
effort to ensure that evidence from Afghan nationals who are not resident in
New Zealand can be provided in a way that will not place them at physical or

risk.

[85] The Inquiry will attempt to facilitate the giving of evidence remotely via a
secure and safe AVL portal and provide, as appropriate, interpreters to facilitate
both interviews and the giving of evidence. The Inquiry is concerned that requiring

Afghan residents to give evidence in a public process will result in threats to their

physical or wellbeing, or at least that they may perceive such threats.
Given the challenges relating to this aspect of the Inquiry?s work, the Inquiry needs
to give further consideration to precisely how evidence from the Afghan villagers
will be conveyed to the Inquiry. Its intention is that its approach will accord with

international best practice.

[86] The Inquiries Act draws a distinction between interviews and evidence, an
importance difference being that witnesses may be required to give evidence on

53 Counsel assisting will conduct initial interviews with all

oath or af?rmation.
those who have relevant information for the Inquiry. This includes members of the
public who have contacted the Inquiry, initially through its website as set out in
Appendix I, and who wish to provide information. In the event that the
information they have is relevant to the issues raised by the Terms of Reference, the

Inquiry will decide whether to interview or call them as witnesses.

[87] Those people whom the Inquiry wishes to call as witnesses will be briefed
by counsel assisting as to the areas on which the Inquiry wishes to hear their
evidence. As we have said, all witnesses will be witnesses of the Inquiry, not the

participants.

[88] People who are interviewed by the Inquiry or are called as witnesses will be
entitled to have their lawyer present at the interview or during the giving of
evidence if they wish, subject to any issues relating to classi?ed material. Evidence

will be taken under oath or affirmation as provided by 19 of the Inquiries Act.

[89] A written record will be kept of all interviews conducted by the Inquiry and
all evidence given to the Inquiry. The text of interviews will be approved by the
person interviewed and signed. In the event that the interview relates to classi?ed
information, that information will be protected and not disclosed to anyone other
than the members of the Inquiry who hold any necessary clearances. Evidence
given under oath or affirmation will be transcribed as in a court proceeding and

handled on the same basis as texts of interviews.

 

53 Inquiries Act, 5 19(b).

[90] The texts of interviews and the transcripts of evidence will not be publicly
available (except in the case of evidence given in public session). However,
transcripts of evidence from witnesses who do not seek con?dentiality and are not
dealing with classi?ed material could be made available to core participants,
subject to non-publication orders. Where material emerges which might form the
basis of a comment by the Inquiry that is adverse to a person or organisation, that
person or organisation will be given a summary of the relevant material and an
opportunity to provide a response to it, both in writing and orally. These
requirements are necessary in order to conduct an inquiry that is fair, as required in
10, and meet the obligations under 14(2) of the Inquiries Act to follow the rules
of natural justice ?where [the Inquiry] makes a ?nding that is adverse to any

person. . 

[91] It is possible, depending on the issues that emerge during the Inquiry that
some expert evidence may be required. If that is the case, the experts will be dealt
with in the same way as other witnesses as speci?ed above, subject to the
possibility that some of their evidence may be such that it could be given in public

hearings.

Allegations

[92] According to the Terms of Reference, the purpose of this Inquiry is ?to
examine the allegations of wrongdoing by NZDF forces in connection with
Operation Burnham and related matters?. Among other things, the Inquiry is

directed to:

Seek to establish the facts in connection with the allegations of wrongdoing
on the part of NZDF personnel during the Operations.

Under the heading ?Scope of Inquiry?, the Terms of Reference say:

Having regard to its purpose, the Inquiry will inquire into and report on the
following:

I. The conduct of NZDF forces in Operation Burnham, including
compliance with the applicable rules of engagement and
international humanitarian law;

2. The assessment made by NZDF as to whether or not Afghan
nationals in the area of Operation Burnham were taking direct part
in hostilities or were otherwise legitimate targets;

3. The conduct of NZDF forces in the return operation to Tirgiran
Valley in October 2010;
4. The planning and justi?cation/basis for the Operations,

including the extent to which they were appropriately authorised
through the relevant military chains of command, and whether
there was any Ministerial authorisation of the Operations;

5. The extent of knowledge of civilian casualties during and
after Operation Burnham, and the content of written NZDF
brie?ngs to Ministers on this topic;

6. Public statements prepared and/or made by NZDF in relation to
civilian casualties in connection with Operation Burnham;

7. Steps taken by NZDF after Operation Burnham to review the
conduct of the operation;

8. Whether transfer and/or transportation of suspected
insurgent Qari Miraj to the Afghanistan National Directorate of
Security in Kabul in January 2011 was proper, given (amongst
other matters) the June 2010 decision in (oao Maya Evans) 
Secretary of State for Defence [2010] EWHC 1445;

9. Separate from the Operations, whether the rules of engagement, or
any version of them, authorised the predetermined and offensive
use of lethal force against speci?ed individuals (other than in the
course of direct battle), and if so, whether this was or should have
been apparent to NZDF who approved the relevant version(s)
and responsible Ministers. In particular were there any written
brie?ngs to Ministers relevant to the scope of the rules of
engagement on this point; and

10. Whether, and the extent to which, interpretation or
application of the rules of engagement insofar as this involved such
killings, changed over the course of the Afghanistan deployment.

[93] As can be seen, the Inquiry?s task is to inquire into the particular matters set
out under the ?Scope of Inquiry?, having regard to the Inquiry?s purpose. The
Inquiry?s stated purpose is directed to ?the allegations?. The allegations are
therefore an important part of the background against which the Inquiry must
perform its speci?c tasks. For this reason, we think it important to have a clear

statement of the allegations at the outset.

[94] Counsel assisting prepared a summary of the allegations on the basis of Hit

Run. Although that summary was provided to the core participants at an earlier

stage, we attach it to this Minute in Appendix 2 and invite comment on it. We have
also included, from the unclassi?ed material provided by NZDF, a summary of its
response to speci?c allegations made in the book. This is Appendix 3. We consider
that it would be helpful, both for the Inquiry and members of the public, to have a
narrative account from perspective of the events at issue. Such a narrative
does not need to be supported by references or contain classi?ed information.
Rather, it would simply set out narrative of events. The Inquiry, and
members of the public, would then have the two competing accounts before them.
We understand that NZDF has been working on such a narrative. It would be

helpful to have that as soon as possible.

Conclusion

[95] As we said at the outset, our views as to the procedure to be followed by the
Inquiry are not ?nal views and we welcome further submissions on them.
Moreover, as we have emphasised, we need to retain the ?exibility to deal with
matters as they arise, as it is not possible for us to predict with assurance all

possible eventualities.

[96] If any party wishes to make further written submissions on the matters
covered in this Minute, they should be ?led by email at the Inquiry?s email address

(operationburnham@inquimgovmz) by 5 pm on Friday 5 October 2018. If any of

 

those who have made submissions on the matters covered in this Minute wish us to
hold a hearing for oral argument on them, they should advise us, and we will

schedule such a hearing after consultation with counsel as to a suitable date.

Sir Terence Arnold QC eoffrey Palmer QC

Participants:

Richard McLeod for the Afghan Villagers

Mr Radich QC for New Zealand Defence Forces
Mr Hager

Mr Stephenson

Appendix 1: Witness Protocol

This Protocol sets out how the Inquiry will gather information from

interviewees and witnesses. It is divided into two parts:

1.1

1.2

The ?rst deals with people who will provide information to the
Inquiry only under conditions of con?dence (?sensitive witnesses?).
The second deals with people who do not require the same protections

(?other witnesses?).

Sensitive witnesses

2.

Step I 

The process for any person who has relevant information to provide to the

Inquiry and who has concerns about their safety, security, or con?dentiality

involves three principal steps. Those steps are:

2.1

2.2

2.3

A con?dential preliminary meeting with counsel assisting to ascertain

the witness? security concerns and needs, and an indication of the

nature of the information that can be provided;

Following appropriate protective orders by the Inquiry (including as to

con?dentiality), provision of a ?will say? statement to counsel

assisting;

If requested by the Inquiry:

a closed session interview with the Inquiry; and/or

(ii) the provision of evidence on oath or af?rmation at a closed
hearing,

subject to protective measures. Witnesses may, if they wish, be

accompanied by their lawyer.

Initial con?dential contact with the Inquiry

An initial approach should be made in con?dence to either the con?dential

Inquiry email address or telephone number. The contact details are:

3.1

3.2

Con?dential Inquiry email address: 

 

(access to this address is restricted to the Manager Secretariat to the
Inquiry, and one other member of the secretariat).
Con?dential Inquiry telephone number: 0800 22 00 40 (callers will

hear an automated introductory message asking them to leave their

Step 2:

preferred contact details. Access to the number is also restricted to the
Manager Secretariat and one other member of the secretariat. All
phone messages will be cleared and responded to within 24 hours
(Monday to Friday)).

The witness will then be contacted by counsel assisting and a preliminary

meeting with counsel assisting will be arranged at a suitable and secure

location.

At the preliminary meeting a security needs assessment will be completed,

which will identify any concerns or needs the witness may have in relation

to the provision of information to the Inquiry. It is also expected that the

potential witness will provide an overview of the nature of the information

they can provide to the Inquiry.

The preliminary meeting with counsel assisting will be undertaken in

con?dence and in private. The following measures will apply:

6.1 The individual will be designated with a cypher, and any document
generated by the Inquiry will refer to the individual only by reference
to their cypher. The name of the witness will be held separately in a
secure environment within the Inquiry?s of?ce. Special facilities have
been established to ensure that access to this information is restricted
to Inquiry members and designated staff only.

6.2 Any notes taken by counsel assisting will be anonymised and also

secured within the Inquiry?s of?ce.

Second meeting with counsel assisting to prepare ?will-say statement

For individuals whom the Inquiry wishes to interview, the Inquiry may issue
orders under 15 of the Inquiries Act 2013, including protective measures
relating to anonymity and con?dentiality. The Inquiry?s consideration of
protective measures at this stage will be undertaken on the basis of the
security needs assessment completed by counsel assisting at the preliminary
meeting.

Once protective measures orders are in place, counsel assisting will meet
again with the witness to prepare a ?will-say? statement, approved by the

individual but unsigned. This will not be considered evidence. The same

precautions noted at paragraph 6 above will also apply to any ?will-say?

statement.

Step 3: Closed session interview by the Inquiry and/or a closed hearing to take



10.

ll.

12.

13.

14.

15.

16.

evidence on oath or affirmation

A person being interviewed by, or giving evidence before, the Inquiry will
be entitled to have his or her lawyer present. The lawyer will not be
expected to take an active part in the process but rather to be available to the
witness if he or she wishes to consult them. If classi?ed material is to be
discussed, the lawyer will have to hold an appropriate clearance, or not

attend the interview or hearing during the discussion of that material.

Closed session interview

Where a closed session interview is ordered by the Inquiry, this will take
place in a secure location and in private.

Prior to the closed session interview, counsel assisting will provide a
brie?ng to the witness on the issues the Inquiry may wish to canvass with
the witness. The Inquiry may, however, ask questions at the interview on
any matter it considers relevant.

Interviews will be digitally recorded and a transcript of the interview
prepared either during the interview or subsequently. Digital recordings of
the interview and transcripts will be stored in a secure environment within
the Inquiry of?ce and access will be restricted to Inquiry members and
counsel assisting. Transcripts, if prepared, will be secured and anonymized
using the witness? allocated cypher.

Questioning of the witness will be carried out by the Inquiry members and,
where appropriate, counsel assisting.

In some cases, a second or subsequent interview or interviews may be
required.

Protective orders appropriate to the circumstances of the witness will be
made. These are likely to include (as a minimum) anonymity and non-
publication orders.

If the Inquiry considers it necessary to meet the requirements of natural

justice for some level of disclosure of the witness?s statement to a party to

17.



18.

19.

20.

21.

22.

the Inquiry, the Inquiry will consult with the witness before this course is
taken. The Inquiry will take steps to ensure that any disclosure to an
affected party is made in a way that protects the identity of the witness.

It is possible that the Inquiry may ask a person who has been interviewed to

give evidence on oath or af?rmation at a closed hearing.

Closed hearing

Prior to a closed hearing, Counsel assisting will provide a brie?ng to the
witness on the issues the Inquiry may wish to canvass with the witness. The
Inquiry may, however, ask questions at the hearing on any matter it
considers relevant.

Witnesses will give evidence on oath or af?rmation at closed hearings.
Questioning will be carried out by the Inquiry members and/or by counsel
assisting as appropriate.

Evidence will be digitally recorded and a transcript of the evidence will be
prepared either during the hearing or subsequently. They will be stored and
handled as described in paragraph 12 above.

Protective orders appropriate to the circumstances of the witness will be
made. These are likely to include (as a minimum) anonymity and non-
publication orders.

Where issues of natural justice require conveying the substance of a
witness? evidence to others, a similar process to that outlined in paragraph

16 will be followed.

Protective measures

23.

As part of its information gathering process, the Inquiry will consider taking
protective measures suitable to the relevant circumstances at any stage of a
witness? involvement with the Inquiry. These may include steps such as
making orders protecting the identity of the person and preventing any
publication of his or her statement or evidence or involvement with the

Inquiry.

Approach for Afghan residents

24. The Inquiry considers that Afghan residents who have information that is
relevant to the Inquiry are likely to be vulnerable and so will need protective
measures. It wishes to take further time to consider the way in which
evidence will be taken from Afghan villagers and other residents and the

protective measures which will apply.

Other witnesses

25. In relation to witnesses other than sensitive witnesses, a similar staged
process will be followed, but Without the protective measures.

26. Interviews and evidence will generally be conducted in closed sessions,
although transcripts will be made available to core participants, subject to

non-publication orders.

Appendix 2: The Allegations made in Hit Run

1. The Inquiry provides the following summary of the allegations contained in the
book.

Operation Burnham was based on faulty intelligence

2. Third informant was not trusted by intelligence staff (his motives or
information) and provided with inducements/placed in danger by
intelligence staff (p 20).

3. It was primarily information from the third informant on identities and
whereabouts of insurgents which ?guided the retaliation? (p 20).

4. Attack on Abdul Razaq?s family home in Khak Khuday Dad was based on
faulty intelligence (p 54) Ghafar (a wanted insurgent) was not present but
three generations of his family were.

(ii) Operation Burnham involved the injury or killing of civilians

5. The raid was conducted as retaliation for the killing of Lt Tim O?Donnell
(motive to act in a cavalier/reckless manner?) (pp 8; 16?17; 23; 32; 44; 79; 80).

6. It was carried out in circumstances where it can be inferred that the killing of
unarmed civilians was known to NZDF personnel at the time the operation was
carried out, or in circumstances where they were reckless as to that fact.

7. The actions of NZDF personnel constitute possible war crimes and breaches of
domestic and international law (p 110 for further particulars see paragraph
vii).

No assistance (or investigation) was provided by SAS after they became

aware of civilian casualties (p 70)

8. No sign that SAS tried to help villagers in Khak Khuday Dad after the
helicopter attack (p 54).

9. Despite the SAS becoming aware very soon after the raid that there were
civilian deaths and injuries, ?they never came back to investigate, give help or
offer compensation? (p 70).

(iv) There was misreporting of the success of the operation initially, and then

consistent denials of civilian casualties amounting to a cover-up

10. SAS of?cers helped write the ISAF press release the day after Operation
Burnham, which reported 12 insurgents killed and no civilian casualties (p 45).

11. Following reports of civilian deaths, ?There was no acknowledgement that
anything wrong had happened or of any failure in the mission? (p 72).

12.

13.

14.

15.

16.

(V)

17.

(vi)

ISAF would have known soon after the press release that it was incorrect, but
did nothing to change it (p 75).

Throughout international reporting on civilian deaths, NZ forces remained silent

(p 78).

ISAF investigation found a ?gun site malfunction? caused several rounds of
ammunition to fall short, which may have caused civilian casualties (p 78).

NZDF acted throughout as if nothing had gone wrong and instead claimed
success in Afghanistan (p 97).

In response to One News story, NZDF issue a press release stating allegations of
civilian casualties were ?unfounded? (p 100). Repeated by Defence Minister
Wayne Mapp.

Qari Miraj was detained by SAS. They beat him, and handed him over to
Afghan NDS ?secret police He was then tortured (p 124 timeline)
The SAS took Miraj to the NDS knowing he would be tortured there (p 88).

Later missions involved a targeted killing strategy which was unlawful (p

90?91)

(vii) The actions of NZDF personnel constitute possible war crimes and breaches

18domestic and international law (p 110)

First Chinook helicopter deployed SAS at Khak Khuday Dad, gunshots are
heard (SAS believe it is insurgents ?ring at the helicopter), then Apache
gunships open ?re on the houses, circling and attacking repeatedly (p 36).
Appears SAS called the Apaches for support (p 37).

No evidence that insurgents identi?ed in the village when Apaches open ?re (p
37).

SAS likely to have called in the airstrike and had overall responsibility for the
operation (p 55).

SAS saw the intensity of the attack but ?apparently did nothing to stop it? or
search houses, or check to see if anyone needed assistance (pp 36-3 7).

Civilians began ?eeing homes/tents. Helicopters should have seen some people
were children through powerful night vision (p 50).

Two villagers appear to have been shot by SAS (one by a sniper) as they ?ed
(pp 56-59).

Second Chinook deployed SAS at Naik. Neither insurgent target (Abdullah
Kalta and Maulawi Naimtullah) were present. SAS set ?re to a room

25containing religious books and personal possession and left house burning (p
39). Also burned down Naimtullah?s father?s house, and Abdullah Kalta?s.

Houses were burned as punishment (p 40).

After searches of Naik complete and (Afghan) commandos con?rm there were
only civilians present, the Apaches re?appeared and ?red at houses (p 41). This
time they check ?rst that the houses are unoccupied.

Apaches opened ?re because ?it was more like retaliation and they didn?t care
whether there were ?bad guys? there? (p 44).

Apache helicopters then pursue two ?squirters? ?eeing Naik. Rules of
engagement for Apaches required targets to be positively identi?ed as target
presenting and ?imminent threat?. They ?re upon them until ?it is certain they
are dead? (p 42).

Wounded elderly civilian from Khak Khuday Dad approached CRU
commandos who render assistance. They then board helicopters (by
implication the SAS become aware of the civilian casualty?) (p 44).

SAS of?cers, Mapp and Lt-General Jerry Mateparae help write ISAF press
release which does not mention New Zealand or SAS involvement (p 45).

. Ten days after the ?rst raid troops, returned to destroy houses being rebuilt in

Naik; ?it was to punish them? (p 80).

There was or may have been Ministerial knowledge of and authorisation of

32.

33.

34.

35.

36

Operation Burnham before it took place (p 28)

Mapp and Mateparae were briefed ?on the plan by [Lt-Colonel 
staff?.

They met General Petraeus to thank ?him for the aircraft and other resources he
had made available for the raid?.

?Mapp and Mateparae also got involved in some practical work, including
helping control the post-raid publicity?.

Technically NZDF did not need ministerial sign off, ?but this mission was
different. It was unusually large, was very much SAS initiated and driven, and
the success or failure had serious implications?.

.Mapp and Mateparae obtained approval for the operation from the Prime

Minister (p 30).

Appendix 3: New Zealand Defence Force public response to the allegations in

1.

Hit Run

A detailed rebuttal of the allegations in Hit Run has been made by NZDF
after the publication of the book in March 2017. The ?rst detailed rebuttal was
made at a press conference by Lt-General Tim Keating on 27 March 2017 and
that has been elaborated since. This account is principally drawn from the
?Talking Points for the Prime Minister and Minister of Defence Key
Messages Operation Bumham? dated 23 February 2018.

The Chief of Defence Force, Lt-General Keating, issued a detailed rebuttal at a
press conference on 27 March 2017, and described an operation, called
Operation Bumham, carried out on the night of 21?22 August 2010.

Hit Run alleges that the SAS conducted an operation in Khak Khuday Dad
Village and Naik Village. It provided detailed lists of the dead and wounded
from those two villages, and lists of the houses destroyed.

NZDF rebuts the book's claims that the NZSAS committed war crimes or acted
inappropriately during Operation Bumham. In all respects, the conduct of the
New Zealand ground forces during the operation was exemplary.

NZDF says that Operation Bumham did not occur in the villages named in the
book, but in a place called Tirgiran Village, two kilometres away, in the north-
east of Bamyan Province. The operation followed the attack on 3 August 2010
on the New Zealand Provincial Reconstruction Team (PRT) that killed Lt
O'Donnell.

NZDF knew in a matter of days, from local and ISAF intelligence, who had
attacked the patrol.

The New Zealand Government gave permission to use the SAS, who were
operating out of Kabul with the Afghan Crisis Response Unit, to see if they
could help enhance the PRT's security. Greater security would allow the PRT to
continue with the progress it had achieved to date in its mission.

The underlying premise of the book was that the SAS conducted an operation in
Khak Khuday Dad Village and Naik Village that in?icted considerable damage
to property and deliberately killed civilians, and which added up to war crimes
that need to be investigated. However, Operation Bumham was conducted in
Tirgiran Village, some two kilometres away. A feature of all SAS operations
was the involvement in the planning, conduct and subsequent debriefs and
review of the operation by a lawyer. New Zealand was one of the ?rst in the
ISAF coalition to adopt this practice of legal oversight at the tactical level,
which was aimed to provide a level of additional assurance to the commander
and troops on the ground that their actions were within their operational
directive and any offensive actions were within the Rules of Engagement.

The SAS and partner ground forces arrived at the Helicopter Landing Zone at
0030 on 22 August 2010. They were provided covering support by Coalition

10.

ll.

12.

13.

14.

15.

16.

17.

18.

19.

20.

Aircraft. The role of these aircraft was to provide protection to the ground
patrols.

The ground force commander was an SAS Of?cer who controlled both the
ground activities and provided clearance, after the appropriate criteria had been
met, for any involvement of the aircraft. These elements were coordinated by an
air controller in his location.

The criteria were that the target was positively identi?ed as a direct participant
in hostilities and that any collateral damage would be minimised.

On arrival of the ground patrols by helicopters, insurgents with weapons were
identi?ed leaving the village to take up positions on the high ground and within
the Village which were deemed, appropriately, by the ground force Commander
to threaten the ground force. On meeting the necessary criteria within the Rules
of Engagement, coalition aircraft were given permission to engage these
insurgent groups.

Meanwhile, the ground forces entered a number of the buildings where
intelligence had indicated insurgent leadership was staying. While the
insurgents themselves had left, signi?cant quantities of weapons and
ammunition were found and destroyed on site.

During the destruction of the ammunition, two dwellings caught ?re, one
through exploding ammunition failing on the roof and one by an unattended
cooking ?re.

The SAS suffered one casualty, who was injured by falling debris during the
operation.

Flaming for the operation went to great to protect all civilians on the
ground, and this was followed through meticulously by the ground force during
the conduct of the operation.

Part of this included a procedure known as a callout, where before entering the
village, the ground forces announced their presence and intention to the
villagers through loudhailers, advising the villagers that this was a security
operation. The obvious downside of this approach is that it gave away the
element of surprise and allowed the insurgents time to respond, thereby putting
the ground forces at greater risk.

Two shots ?red by the SAS ground force were targeted at an insurgent who was
approaching one of the ground force positions. The insurgent was shot and
killed.

The situation in Afghanistan at the time was considered by New Zealand to be
one of a non-international armed con?ict. The legal framework governing the
conduct of members of NZDF was one regulated by international humanitarian
law also called the Law of Armed Con?ict.

For many operations, NZDF will also develop its own rules of engagement.
These are rules drafted with input from legal of?cers and operators and signed

21the highest level. These rules can never exceed the limits of the Law of
Armed Con?ict.

All members of the Armed Forces, and indeed all members of this deployment,
are required to undergo training in the Law of Armed Con?ict it is a baseline
training requirement for all members of the Armed Forces. All members of this
deployment undertook speci?c pre-deployment training that incorporated briefs
and scenario-based training involving the application of the rules of
engagement. All personnel were issued with a Code of Conduct card which
outlined their obligations under international law.

As part of this SAS deployment, NZDF sent a legal of?cer to accompany the
deployment at the tactical level.

The legal of?cer did not observe any activity in relation to Operation Bumham
which gave them any cause for concern around compliance with the law of
armed con?ict or the rules of engagement.

It is a tragic reality that civilian casualties occur in times of armed con?ict.
Civilian casualties, however, are not necessarily unlawful at international law.

Information received after Operation Burnham indicated that civilian casualties
may have been possible.

ISAF was required to assess all reports of possible civilian casualties and was
also required to notify such instances to the United Nations Assistance Mission
in Afghanistan and the International Committee of the Red Cross.

After the operation, reports of civilian casualties were made to the Afghan
regional governor. ISAF stood up an investigation team lead by an ISAF
Brigadier General and supported by a team including an ISAF Legal Of?cer as
well as the Afghan Government representatives.

The investigation team concluded that civilian casualties may have been
possible due to the malfunction of a weapon system in a supporting Apache
helicopter, as was made public by ISAF on 29 August 2010.

The investigation team also concluded that members of the NZSAS appear to
have complied with the ISAF commander's tactical directive, the rules of
engagement, and accordingly the law of armed con?ict. The investigation
concluded no further action be taken.

NZDF says that in all respects the conduct of the New Zealand ground forces
during the operation was exemplary.