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Principled, pragmatic or expedient.

datePosted on 16:44, April 11th, 2021 by Pablo

For several decades under Labour and National-led governments New Zealand has claimed to have an independent (and sometimes autonomous) foreign policy. This foreign policy independence is said to be gained by having a “principled but pragmatic” approach to international relations: principled when possible, pragmatic when necessary. More recently NZ foreign policy has shifted from traditional diplomacy in which trade was a component part to a trade focused orientation to which all other aspects of diplomatic endeavour are subordinated. Seen as a marriage of belief in Ricardian notions of comparative (and now competitive) advantage with a pragmatic understanding that NZ is dependent on trade for its survival and prosperity, the “trade for trade’s sake” approach continues to reign supreme to this day.

It turns out that foreign policy pragmatism or principle may no longer obtain in certain instances, especially when trade is involved. Take the issue of NZ military-related exports. It has been revealed that NZ firms and (possibly) public agencies export everything from airplane parts to small arms, explosive ordinance, training simulators, muzzle flash suppressors, missile guidance systems and artillery range finders to several dozen countries. (The term “possibly” is used here because all of the NZ exporting entities are redacted in the export list made public by MFAT. While some private exporters can be broadly identified by the nature of the items sold, other special license categories make ambiguous the provenance of the equipment in question).

Most of these exports go to NATO members and other liberal democracies, while other recipients are regional partners like Singapore, Malaysia , Australia, Tonga and Indonesia. The bulk of what is exported is what might be considered to be on the soft rather than sharp end of the so-called “kill chain:” items that do not impart lethal force directly but which contribute to the accuracy and lethality of weapons system that do so.

None of this would be controversial if it were not for the fact that some of the recipient countries have checkered human rights records (like Indonesia) while others have outright dismal histories of authoritarianism and military criminality. That includes Saudi Arabia, the United Arab Emirates, Turkey, and the PRC. Saudi Arabia and the UAE lead a coalition of Sunni Arab states that have been credibly accused of committing war crimes and genocide against Houthi populations in Yemen. Saudi Arabia does not recognise the Universal Declaration of Human Rights (the UAE was not party to the UDHR vote) and along with the UAE does not recognise a number of human rights conventions involving women’s rights, labour rights, political and social rights. Malaysia, Singapore and Indonesia also are not party to the UDHR and while not as dismal as the Sunni oligarchies, have subpar records when it comes to adhering to international human rights norms and agreements. NZ exports military training material to the PRC, whose human rights history is known for all the wrong reasons. There are other dubious recipients but the issue is clear. In spite of claiming to be a champion and defender of human rights as a matter of principle, NZ exports military equipment to egregious violators of human rights both domestically and abroad.

Some will argue that NATO members and other democracies like Australia also violate the laws of war and human rights in their own territories. There is merit to those arguments. But the difference between Australia, Canada, the UK and US and, say, Saudi Arabia and the UAE when it comes to military conduct in conflict theatres is that war crimes committed by the forces deployed by liberal democracies are exceptions to the rule and are punished (even if initially covered up) rather than systematically encouraged and later denied. Domestically, while systemic racism clearly exists throughout the liberal democratic world, it is no longer genocidal in nature even if in previous eras there was a significant element of that.

Conversely, places like the PRC systemically abuse human rights at home, deny individual and collective rights as a matter of course and treat ethnic and religious minorities as if they were foreign enemies. Turkey has grown increasingly authoritarian under President Erdogan, with its treatment of its Kurdish minority a particularly black mark on its record. The UAE and Saudi Arabia are known for their mistreatment of foreign workers, Shiia Muslims in particular but not exclusively. Jordan, another recipient of NZ strategic license exports, is a Western ally but not known for its adherence to human rights conventions.

Even Israel, a supposed liberal democracy and a Western ally that is another recipient of NZ military-related exports, systematically violates the rights of Palestinians inside and outside of its recognised territorial limits, including targeting of civilian populations during times of conflict (in Gaza) and forcibly annexing Palestinian territory (in the West Bank) as part of an expansionist doctrine that seeks to eventually expel Palestinians from what they and Israelis consider to be their homelands. Within Israel, in spite of recent electoral gains by so-called “Arab” (Joint List) parties, Palestinians are more often seen and treated as a subversive fifth column rather than full citizens (Arabs make up around 20 percent of the Israeli population).

Most liberal democracies simply do not act this way. The West may be guilty of many things, particularly during the colonial era and Cold War, but even if flawed most liberal democracies at a minimum pay lip service to the rule of law based on civil liberties and human rights at home and abroad. A fair number of the recipients of NZ strategic exports in recent years make no such pretence.

None of this would matter if NZ had a realist approach to foreign policy that was completely pragmatic in orientation based on national self-interest. Matters of principle would not factor into foreign policy-making and trade relations. But that is not the case. Instead, NZ is a very vocal defender of small states rights in the International community as an extension of its championing of international human rights, international norms and the rule of law. That makes trading with authoritarians somewhat hypocritical and exporting military equipment to murderous regimes downright despicable. Especially when done for a buck–that is, for the profit gain of NZ private firms.

To be clear, almost any hunting-related equipment can be converted for dual use military purposes. But there is much more to the NZ export list (released by MFAT to a couple of investigative reporters under OIA requests) than converted hunting equipment. It also is interesting that most of the redactions in the sanitised export list are justified on commercial sensitivity rather than national security grounds. If items were merely dual use conversions from hunting equipment, one would think that there are little commercial sensitivities involved given the global scope of the hunting industry. Nor are end users always identified on the list, which makes MFAT assurances that it knows what is ultimately being done with the exports somewhat disingenuous. Either it knows and does not want to say or it does not know even though it allowed the export license request for those items to be approved.

Consider this example. MFAT approved the sale of a general utility aircraft from a Hamilton-based aerospace company (now bankrupt) to a PRC-based aviation firm in spite of numerous concerns about the end use of that aircraft. A year or so after the sale went through the plane was photographed at an airshow wearing North Korean military livery, sparking an investigation into how international sanctions on North Korea were circumvented in the process (the sanctions violation was considered a first order offence given the military use of the aircraft). In the legal process that followed, which resulted in the conviction and fining of the Hamilton firm for violating the international sanctions regime and NZ strategic export requirements, MFAT admitted that it had no clue as to who the end user might be beyond the PRC firm that, incidentally, owned a half interest in the Hamilton company and controlled its board of directors. In other words, it took the exporter’s word as an article of faith and as a result contributed to an egregious violation of UN sanctions that NZ voted in support of. Diplomatically speaking, that tarnished NZ’s reputation because neither principle or pragmatism, much less due diligence, was applied to the sale.

Even training equipment has to be considered in proper context. Artillery range finders used for training purposes (which MFAT claims was the case with Saudi Arabia) are being used to train artillery for war, not fun and games. Saudi artillery is regularly used in the Yemen civil war, so it a stretch to say that exporting equipment that trains troops to be more accurate with their artillery fire is not related to the Yemeni conflict. Likewise, even if small in terms of numbers and monetary value, exporting small and field-grade arms to human rights violators ignores the fact that the weapons could be used against domestic populations and foreign civilians as well as foreign adversaries.

Again, none of this would be of concern if NZ did not proclaim itself to have an independent foreign policy based on principle as well as pragmatism. If it was a country powered by a military-industrial complex such as the US, it would all be in a day’s business to export military equipment to assorted nefarious regimes. But not so NZ, which has staked its international reputation on being an agent of honest virtue–a good global citizen, as it often says.

The truth is different. If NZ was truly independent it could resist the pressure to act as a cut-out or front for its allies’ military-related services (say, by not allowing the national airline to serve as a sub-contractor for the reconditioning of Saudi Navy gas turbines usually serviced by US Navy contractors). It could pick and choose about when to be principled and when to be pragmatic when it comes to military-related exports (say, by exporting to NATO or liberal democratic partners only). After all, although clearly unprincipled, it is really pragmatic for NZ to sell the Saudis and Emiratis military equipment when they are involved in industrial-strength war crimes in pursuit of a genocidal campaign in a neighbouring country?

In a past life I was involved in the decision-making chain involved in US military sales and training, etc. to Latin American countries. The primary criteria for vetting military equipment and training requests was twofold: the nature of the equipment or training requested and the character of the political regime (government) making the request. If the equipment or training was too sensitive or excessively lethal and/or the regime doing the requesting was of dubious disposition, then the request was denied. If the decision was anything other than an outright “no” on the primary grounds, then other criteria was applied: state of trade and diplomatic relations with the requesting state, the geopolitical balance in the (sub) region in which that state was located, the possibility of a domino proliferation impact, the presence of other foreign weapons suppliers as substitutes for US exports, etc. Once all of this was factored in with input from the various elements of the inter-agency consultation process (involving the State Department, CIA, NSC, Treasury, Commerce and other federal agencies with a potential stake in the matter) and sometimes after sounding out other countries in the region about their reactions, a recommendation was sent to the White House for approval/denial. If the White House approved the sale/mission, then the recommendation was sent to Congress for approval, something involving several committee votes and then a general vote in both Houses. The process was slow and circuitous but in the end it was comprehensive and transparent.

Although it is possible that there are similarly robust weapons exportation strategic license vetting protocols in place in NZ, that does not seem to be the case. MFAT appears to make the call, most likely after consultation with DPMC and/or Cabinet. Parliament is not involved in the decision-making process. No public notification is made. In other words, the entire NZ strategic export licensing regime is opaque at best. You can read the official criteria here.

MFAT says that the vetting process is rigorous and that it knows exactly where NZ sourced military equipment winds up. Yet it has only denied one out of more than thirty special export license requests in the last three years (to the Saudis for mortar stands and fire control (observation tower) equipment, supposedly in response to the Khashoggi murder). If foreign policy principle were involved, one might expect that the approval rate would be somewhat lower for authoritarian-ruled countries. But if pragmatism and trade are the criteria in play, does it make sense to supply murderous regimes with any kill chain components? Or is the fact that the entire decision-making process for granting special export licenses is so opaque that MFAT and the suppliers thought that they would never be found out if it were not for the good work of a couple of intrepid reporters?

More than principle and pragmatism as guideposts for foreign policy, it seems that trade-promoting expediency is the new normal in NZ foreign affairs. But with expediency comes a loss of independence and autonomy as well, because among other reasons, states with their own agendas can use NZ’s trade zealotry as third party cover for transactions they themselves may be reluctant to admit publicly (even the US has suspended weapons sales to Saudi Arabia because of its behaviour in Yemen). Or authoritarians can hold non-military trade relations with NZ hostage to the provision of military equipment. Either way, that makes NZ a foreign policy tool of others rather than an honest broker in international relations and global good citizen.

Just like the fact that NZ’s “clean and green” image is more myth than reality, the foreign policy reality is that at least when it comes to trading in the paraphernalia of death, NZ is unprincipled, hardly pragmatic and dominated by logics of trade expediency rather than a commitment to the upholding international human rights. While it would be too much to expect a National-led government to put principle before trade expediency, that this continues to occur under a Labour-led government (in which the Prime Minister claims that she was unaware of the strategic export recipient list until asked about by the media) is all the more outrageous given its constant repetition of the “independent, principled but pragmatic” foreign policy mantra.

If NZ is to regain a semblance of integrity in diplomatic circles, its foreign policy decision-making matrix must change away from trade obsessed expediency and towards the principled but pragmatic orientation that grants it the independence that it claims to have.

In this week’s podcast Selwyn Manning and I discuss the ethics and practicalities involved in the so-called “conflict industry.” It includes a discussion of the who and what of the “kill chain” and the implications of Rocket Lab’s position as a major US military logistical provider. You can find it here.

Setting them up to fail?

datePosted on 14:55, November 3rd, 2020 by Pablo

There has been some excitement about the naming of Nanaia Mahuta as Foreign Minister and Peeni Henare as Defense Minister in the new Labour cabinet. At first glance neither one appears to have much experience or background in the portfolios that they are now responsible for, but Mahuta is the first female (and Maori) Foreign Minister, complete with a moko kauae. Henare, first elected in 2014, has been Minister for Civil Defense during the last year and half. He is also Minister of Whānau Ora. They comprise part of a cabinet that is considered to be one of the most diverse in NZ history and have received global attention as a result.

Mahuta first entered parliament in 1996 on the Labour list, then was elected in 1999 to the Te Tai Hauauru seat (beating Tuku Morgan), then transferred and won the Tainui/Hauraki-Waikato in 2002. She has been re-elected ever since and made a run for the party leadership in 2014. She was Minister for Customs, Youth Development, Local Government and Associate Minister for the Environment from 2005-2008 during the 5th Labour government and prior to her appointment as Foreign Minister was Minister of Local Government and Maori Development in the 6th Labour government (the first of which she retains). While in Opposition she served as the Labour spokesperson for Maori Affairs, Education, Energy and Conservation. She is also Associate Minister of Trade and Export Growth, Environment and Housing.

After 24 years in parliament, Mahuta surely knows her away around the Beehive and the domestic policy scene. But questions remain about her and Henare’s suitability for the positions they have been given. The breakdown of the questions goes something like this:

The symbolism of diversity is a powerful thing. However, beyond its symbolic value diversity in cabinet is a laudable goal only if it is accompanied by substance. The latter is defined as competence, background or experience in the policy areas for which the appointee is responsible, or the ability to learn fast. Diversity without substance is a cynical form of tokenism because it rewards those without merit in order to engage in empty symbolism as a PR tactic. It also sets up the appointees for failure if s/he is out of depth or is unable to overcome resistance from inside and outside of the Ministries for which they are responsible. That in turn serves to reinforce negative stereotypes about the ethnic, religious, racial or other groups to which they belong.

A big problem for ministerial neophytes of any persuasion is that they run the risk of bureaucratic capture by the agencies that they ostensibly oversee. Bureaucratic capture is a phenomenon where career bureaucrats surround a Ministerial appointee with everything from puffery and flattery to stonewalling and sandbagging in order to get the new leader to absorb and accept institutional logics as his or her own. This may include the “baubles” of office: getting to play with big boys toys in the case of Defense, and jetting off to exotic lands in the case of Foreign Affairs. All courtesy of the taxpayer. The syndrome is familiar.

Another problem is bureaucratic resistance or shunning. This phenomenon is when career bureaucrats endeavour to resist policy initiatives and change instigated by the new appointee by diluting or subverting the message within the institutional maze (which the new Minister is unfamiliar with), or simply ignore directives that do not suit or run contrary to their entrenched interests until the initiatives are dropped. This is an all-to-common problem in the intelligence and security field, where cadres of so-called “old boys” work hard to prevent real effective institutional reform from happening so long as they feel that the status quo works for them. The resistance to reform is less visible in Foreign Affairs because of the arc of modern diplomacy (multi-faceted, involving a variety of actors and subjects), but it remains in some institutional niches nevertheless.

In Foreign Affairs and Defence there is the additional problem that newly appointed Ministers must immediately engage with foreign interlocutors. Many of these foreign diplomats and military officials have great experience and often a considerable degree of cynicism when addressing areas of mutual interest. They very often have different cultural backgrounds, different ideological motivations, different economic interests and different ways of conceptualising the international order (say, being realist rather than idealist or constructivist in perspective). Without the shared cultural and ideological referents common to home, Ministerial neophytes thrust onto the world as the senior faces of NZ face formidable challenges unlike those found domestically.

The questions about Mahuta and Henare are therefore driven by concerns about their experience and competence when confronting these realities, and about whether their domestic experience can immediately translate into the skillset required to effectively engage both the internal (bureaucratic) and external (foreign interaction) aspects of their jobs.

Not surprisingly, some of the responses to those asking these questions have been to accuse them of being racist. That could well be true for some people, but the knee jerk, reflexive defensiveness of these reactions simply serves to obscure the reality of tokenism and overlook incompetence in the event that it does occur.

More reasoned rebuttals focus on Mahuta’s long career in parliament and the range of portfolios she has held over the years. Although Henare has a much shorter parliamentary career, he is seen as a competent quick learner in the areas in which he has previously been given responsibility. So the reasoning goes that even if they do not have deep experience in military-security matters and foreign affairs, both Mahuta and Henare are well equipped to rapidly get up to speed on their portfolios.

Beyond that, there is the domestic political side of the appointment equation to consider. Mahuta and Henare represent important Maori constituencies that Labour seeks to retain as a support base. Henare comes from a distinguished military lineage, so the symbolism of his appointment bestows mana on his office and in the eyes of many of his troops. Mahuta, known as “The Princess” in some circles, is Maori royalty. This might prove very useful when engaging Pacific Island nobility on matters of regional and mutual concern, and her familiarity with pomp and circumstance makes her a natural for ceremonial occasions when representing the State.

Other assessments of the appointments are mixed. There is a line of thought that posits that, on the one hand, the Mahuta appointment is a way of getting a long serving, important yet underwhelming MP out of the way via a golden parachute into a glamorous job while on the other hand a young, up-and-coming Maori MP is given his first shot at playing with the Big Boys. If they do not pan out, this reasoning holds, then no harm done because others will be running the show in any event.

That dovetails with the belief that PM Ardern is going to be the de facto Foreign Minister, using the leverage of her global celebrity to advance major NZ initiatives on the world stage while Mahuta works on what a knowledgeable friend of mine calls the “mice and rats” of foreign affairs. Mahuta will also be a visible indigenous symbol of the multicultural and polyethnic nature of NZ society. So, while Ardern does the heavy lifting in things such as climate change, non-proliferation and bilateral relations with the likes of the PRC and US, Mahuta can provide the ceremonial face of NZ diplomatic representation to the global community.

For Henare the issue is simple: translate his generally well-regarded work in Civil Defense into an understanding of the logistics and operational requirements of complex service organisations such as the MoD/NZDF that operate under relatively tight budgetary constraints and with significant institutional shortcomings when it comes to personnel, material and overall force readiness, and which recently have (in the case of the NZDF) suffered some serious incidents of professional and personal misconduct within both senior and junior ranks. That notwithstanding, much of what the NZDF does under MoD policy directives IS civil defense, be it in terms of disaster relief, humanitarian interventions and emergency engineering and transport. So the experience he has gained in his previous portfolio, even if relatively short, should well suit him for his new role. More to the point, none of this will interfere with how the NZDF leadership see and approach the world around them.

The most jaded idea being advanced is that, regardless of whether they are competent or not, both of these politicians will be the subject of bureaucratic capture. Senior managers and careerists in Mfat and MoD and NZDF will in fact run these agencies largely unimpeded by their respective ministers, who will cut ribbons, shake hands and bestow honours instead. A “Yes Minister” scenario will prevail, if you will.

Not all the reaction to these appointments has been negative or questioning. Many at home and abroad are celebrating the diversity represented in the new Cabinet and the individual achievements of Mahuta, Henare and their non-Pakeha, non-straight and/or female colleagues. The era of the straight white male in politics is seen as coming to an end, with NZ leading the way.

Perhaps that is true but it is not for me to say. Along with being called a racist for having broached some of the afore-mentioned questions on social media as well as being labeled a member of the Pakeha international relations and security community (I have to plead guilty to that one), I am loathe to tread further into the minefield that is identity politics in Aotearoa. Moreover, since I focus on matters of international and comparative polities and security, I cannot offer a knowledgeable opinion about appointments made to domestic-focused portfolios or about which of the scenarios outlined above is the closest to the truth. It seems likely that there is a mix of factors and reasons involved in these appointments, both opportunistic and sincere.

All I can hope for is that both of the new ministers are not being set up to fail and that even if their learning curves are steep, that they succeed in gaining command of the important instruments of State that they have been directed to lead. Time will tell.

I have been fortunate enough to receive regular reports from the 42 Group, a defence and security-focused collection of youngish people whose purpose is to provide independent strategic analysis to policy makers and the NZ public. Their work is very good.

I asked the person who sends me their reports if it was Ok to republish the latest report here. He agreed, so here it is.

An indictment by another name.

datePosted on 16:11, August 5th, 2020 by Pablo

After I noticed that my name had been taken yet again in vain by my friendly antagonist Tom Hunter over at No Minister, I went over to see what the fuss was about. Nothing much, but then I discovered a post about the Operation Burnham Inquiry by Psycho Milt. I made a comment (now several comments) in response, then decided to edit the original comment, add a few things and make it a short post here that outlines what to me is the bottom line of that report. Here it is:

As the old saying goes, “the original sin was bad, but the cover up was worse.” Had the NZDF simply come out after the 2010 engagement and said that there were civilian casualties resultant from the “fog of war” in a nighttime SAS operation designed to kill or capture people responsible for attacks on NZDF patrols in Bamiyan that resulted in several NZDF deaths, I bet that the majority of the NZ public would have accepted that war sucks and bad things inadvertently happen. Then, when Jon Stephenson’s first story on Operation Burnham came out it would not have caused such a stir because there would not have been a glaring gap between his account and that of the NZDF (Nicky Hagar got involved later and took primary credit for the book “Hit and Run” although most of it was researched and written by Stephenson–-Hagar never set foot in Afghanistan).

Although the Royal Commission (RC) sugar-coated it, the report is absolutely damning of the SAS and Army leaders of the time (and not the troops on the ground that night, although issues regarding the TAC (Tactical Air Controller) and SAS mission commander’s understanding of the Rules of Engagement (ROE) were not addressed in the public version of the report). The testimony of several officers taken under oath was labeled as not credible by the Commissioners. The RC Report states that no institutional cover-up was at play, but that is laughable in light of what it says about the testimony of most of the senior officials involved. In other words, this was an institutional cover-up by another name, and the name given to the process instead of coverup or whitewash was shoddy records-keeping and miscommunication on top of bad memories. This pushes the onus of responsibility onto individuals rather than the military as an institution. And for those individuals, I guess “incompetent” is a better mark on one’s service record than “liar.”

How those records were lost or mislaid, and whether those bad memories were a product of in-group cohesion or contempt for the process is a matter of conjecture. What is not is that civilians were killed and at least one suspect handed over to Afghan forces to be tortured, both breaches that under international law must be investigated. What is now known is that the possibility of casualties and the transfer of a Taliban suspect to ADF units known for torture was known immediately by the NZDF chain of command and NZ intelligence services attached to them, yet until late in the Inquiry, the NZDF admitted to neither. There is much more by way of deceitful and devious NZDF behaviour, but let’s just come out and say that uniformed officers lied to their civilian superiors for years after the operation and then some lied under oath at the Inquiry. The National government at the time Operation Burnham took place and in the years immediately afterwards may not have wanted to hear the truth in any event and so accepted what they were (not) told by the NZDF brass at face value, but the RC was keen to hear the unvarnished details.

It took them several years and $NZ 7 million of taxpayer money to find out. It remains to be seen what the Labour government will do with the RC Report’s findings and recommendations, but one thing is certain: it going to wait until well after the election to do anything. And there is one other irony in all of this. At the same time that the NZDF was engaged in its campaign of obfuscation and deflection regarding the events of 2010, Transparency International gave it very hight marks for command integrity, transparency and accountability. These marks were the average of scores provided by a select group of specifically chosen “experts” on defense and security. I know because I was one of them and I pointedly gave low marks when it came to exactly these three criteria, so can only assume that my scores were discounted when calculating the overall average. But who gave them such high across-the-board scores if it mine were not included, and what were they thinking?

In any event I urge readers to read Chapters 2 and 12 of the Report, which address issues of civilian control of the military and ministerial accountability to Parliament in a Westminster-style democracy. The RC found that the actions of the NZDF leadership (specifically, misleading, stonewalling, whitewashing and misrepresenting what happened to the civilian political leadership and ministers of the day) wilfully undermined both fundamental democratic principles.

Everything else is gloss.

I do not expect that much will change given the delicacy of the report’s language and the fact that all of those responsible for the worst offences are retired (one only resigned three months ago when the draft report came out and his statements were found to be particularly unbelievable to the point of possible perjury). But it is now on official record that the NZDF has a culture of playing loose with the truth and disrespect for the constitutional principles underpinning its role in society. If implemented, perhaps the recommendation to create an independent Inspector General of Defense may help refocus NZDF attention on those principles. We shall see.

No matter what one may think of Hagar and Stephenson, in the end, minor errors and some hyperbole aside, they were vindicated. That is evident in the Report, which states that the book “Hit and Run” performed a valuable public service by exposing some ugly truths about how the NZDF operates, not so much in the field (although there were some issues identified there as well), but in its interaction with the political class and the larger society which it ostensibly serves.

That is the bottom line.

The military is no quarantine panacea.

datePosted on 13:47, June 18th, 2020 by Pablo

A word of caution: the military is not a quarantine panacea.

At least 60 NZDF personnel have been on quarantine patrol duties since April 1, and yet breaches of the restrictions on physical contact occurred. What is more, the NZDF presumably has its own testing regime in place (for its personnel, primarily–there were at least 7 NZDF cases reported by April–but also as part of the overall quarantine testing regime) and yet no NZDF tests were administered at quarantine sites as far as I can tell. In addition, the NZDF record on transparency is poor. It has a record of coverups and whitewashes (e.g Operation Burnham). So yes, it has the legal authority (under the Epidemic Notice and National Transition Period legislation, which invoke assistance clauses in the Defense Act and/or Section 66 of the Civil Defense Emergency Management Act ) and logistical capacity to improve quarantine restriction enforcement, but it is an open question as to whether it will perform better or report honestly on its mission given its track record. It is folly to simply punt the task of enforcing the quarantine to the NZDF and expect things to automatically get better.

There also seems to be more to the move than meets the eye. In retrospect, it now seems plausible that the Navy crowd control exercise undertaken last week was oriented towards more than overseas deployments (as should be expected and as I had suggested earlier) and raises the possibility that the government knew that things were amiss in the quarantine regime well before the breaches were made public, and yet suppressed that information. There is much to unpack here.

Let’s leave aside what the Health Ministry may or may not have known about quarantine breaches, where in the chain of command did the failures to effectively enforce the quarantine restrictions occur, who made compassionate exemptions without testing, and why anyone in a position of authority would cover up the possibility that a lethal disease had escaped isolation. Instead, given that the quarantine regime is now under military control, questions should be asked as to why that step was needed. For example, why are the police not being used to enforce these quarantine restrictions on freedom of movement of NZ citizens, residents and visitors? Are they understaffed?

This is what the government says that the new quarantine boss, Assistant Defense Force Chief Air Commodore Darren “Digby” Webb, will undertake and what his powers include. First, a”start-to-finish audit” of the existing systems and written protocols at the border. To do so he will have access to the country’s military logistics and operational expertise. Then, if required, he can bring in military personnel to help run the facilities, and make any changes to further strengthen border defences. That is quite a broad mandate.

It also raises more questions. First, Air Commodore Webb replaced former Police Commissioner Mike Bush a few weeks ago as quarantine czar and was in charge when two women who later tested positive for CV-19 were granted leave from quarantine without being tested. Will granting him more authority improve his decision-making or was he hamstrung from the start by MoH officialdom and/or protocols? Second, if 60 NZDF personnel could not stop breaches of the quarantine regime, how many more will be needed to do so? Third, what is Air Commodore Webb’s relationship vis a vis the Health Minister and Director General of Health in light of the above? Can he pull rank on them or is he, and his handling of the health cordon, bound by civilian Human Resources regulations and other non-military protocols when it comes to non-military personnel under his control and supervision? Fourth, even with emergency legislation enabling the deputisation of the military in this instance, is the military bound by the Human Rights Act and other provisions protecting the rights of those detained, or are those quarantined to fall under military law or a mix of military and civilian law under the emergency powers conferred to it?

Normally, when the military is assigned a mission, it develops in advance of deployment an operational plan that includes specific targets and objectives, then marshals resources, prepares logistics, musters personnel, and stages in wait of the order to proceed. In this instance none of that appears to have happened other than the Navy crowd control exercise (if indeed that had a quarantine-related aspect). Instead, Air Commodore Webb will undertake a “comprehensive” audit of quarantine protocols and procedures. Given that he has been on the job for a while, it is surprising that that review did not begin immediately after he replaced former Commissioner Bush. It also means that any military response is still in the making unless planning and preparations have been done unannounced and unnoticed.

There may be simple answers to these questions that clarify the chain of command and rules of engagement in the revamped quarantine regime, and I welcome any clarifications to that effect.

I shall ignore the sideline whinging and bleating coming from the opposition and rightwing commentators. This was the crowd that after initially welcoming the “go early, go hard” approach to the pandemic, started to yelp about lifting the lockdown and re-opening the economy by the end of April. The fools includes university charlatans like the Auckland University VC, who initially claimed that prohibitions on returning students from China were due to “racism,” and more recently cried economic dependence on foreign tuition as an excuse to let them back in, only to have China now enveloped in a second wave of infections–including in the capital city. This, from a guy who is supposedly the leader of a university from which many of the epidemiologists who advise the government come from! Perhaps he should take his golden parachute, fade back into the vapour and leave authoritative talking to others.

Having said that, we cannot dismiss the fact that the two ladies who were allowed out of quarantine on compassionate grounds may be the tip of an infectious iceberg. Something went wrong and it is possible that several people were involved and errors were made throughout the Health Ministry hierarchy that contributed to it. That needs addressing and remedying. Responsibility must be assumed, and if merited disciplinary action must be taken. One easy step would be to offer the resignation of the hapless Health Minister as a sop to the braying Opposition donkeys while moving someone competent into the role (admitting that David Parker may be still in his job because he is instrumental in the DHB re-structuring project).

Whatever the case, it is not entirely clear that a knee jerk move to “bring in the military” is going to rectify whatever went wrong. It might, but the specific ways in which having uniforms lead and run the quarantine regime are a matter of observable action, not blind faith.

The cost of a range clearance.

datePosted on 08:09, November 20th, 2019 by Pablo

It has been revealed that firing ranges used by the NZDF while deployed to the Provincial Reconstruction Team (PRT) in Bamyan Province, Afghanistan, contained unexploded ordnance that caused numerous deaths and injuries after the NZDF withdrew the PRT in April 2013. In 2014 seven children were killed when an unidentified high explosive device detonated after they brought it back to their village. In the five years following the NZDF withdrawal seventeen people were killed and several dozen injured by unexploded munitions they encountered in and around the five firing ranges used by the PRT during its 12 year mission in Bamyan. While all of the ranges were used for small arms training, two, the Beersheba and Dragon ranges, also were used for training with high explosive rounds, including grenades, shoulder fired mortar shells/rocket propelled grenades (RPGs) and armour piercing heavy caliber bullets. It was near the Beersheba range where the children found the munition that killed them.

The NZDF claims that it had cleared over ten tons of unexploded ordinance from the Bamyan ranges before it left the province. This was done early in the PRT tour because the ranges had been used by Russian, US and Afghan forces in the years before the NZDF arrived, and the concern was the safety of NZDF troops when using those ranges. After the NZDF left, it contracted with the Afghan Directorate for Mine Action Coordination (DMAC) to have contractors clear the ranges. In October 2013 this was supposedly done, to what the NZDF calls an Afghan government approved standard.

After the children’s deaths the standard was lifted to a UN approved level. From then on negotiations were enjoined to determine who should do subsequent clearing of the ranges, what the costs would be and when they should begin. In 2018 the NZDF agreed to pay US$10 million into a fund operated by the UN for employing explosive ordinance disposal (EOD) contractors to engage in follow up clearance of the ranges. The delay in agreeing to the payment was differences between the NZDF/MoD and the US Department of Defence (DoD) over the cost of the job. If I understand correctly what the NZDF has said on the matter, the US wanted NZ to pay US$48 million for clearing all of the Bamyan ranges, whereas NZ wanted to pay much less and only help clear the Beersheba and Dragon ranges. The US$ 10 million dollar sum appears to be the cost of the latter. The key thing to remember here is that while people were being killed and injured by ordinance on those ranges, the US and NZ were arguing about the cost of clearing them.

The NZDF claims that the contractors who did the October 2013 clearance were approved by the Aghan government. The raises questions about the tender and contract-letting process. Who were these contractors? Did the NZDF have any say in their approval? How was the handover between PRT EOD personnel and the contractors handled (since the NZDF EOD operators would have had maps of the ranges that indicated where they had cleared unexploded ordinance fired by NZDF troops as well as any incidental unexploded ordinance (UXO) found on them)?

The October 2013 range clearance done by the contractors was of a type known as a “surface clearance.” As the name implies, this means visually inspecting the range for any unexploded ordinance lying on the above-ground surface. This might include inspections under loose rocks and on slips or crevasses in the mountainous terrain of the area.

The NZDF has made the accurate point that given the amount of ordinance fired on the ranges over the years by multiple armed services from several countries, it is near impossible to determine if the munitions that are killing and injuring people came from the NZDF or another military. That would require shell fragments, explosive residue or other evidence of source, none of which is available. The NZDF notes that in terrain like that of Bamyan, with weather like that of Bamyan, unexploded rounds can last and lie undetected for years and be carried out of the ranges by landslides, snowmelt, floods and other natural events as well as people. The latter point is not as silly as it might seem: in countries such as Afghanistan scrap metal scavenging is an important source of income for impoverished communities, and firing ranges are a treasure trove of scrap metal in the form of bullet casings and other metallic debris of war. For children, some of this debris is an irresistible toy. For all who tread there by choice or innocence, venturing onto an inactive firing range is an invitation to disaster.

What the UN standard of range clearance demands, and what the US and NZ were negotiating about, is what is known as a “subsurface clearance.” This requires the use of metal detectors and other means of locating live explosive objects underground, usually up to depths of two meters given the munitions (such as those of the NZDF) used on the ranges. This raises several questions.

Knowing that it had fired three types of high explosives on the Beersheba and Dragon ranges (some of which were duds) and knowing that some of them were capable of penetrating into the ground rather than just ricochet off of the surface, why did the NZDF agree to a surface clearance even if it conformed to an Afghan government standard? Was it told that the initial clearance would be subsurface in nature only to have that changed to a surface clearance after it left, or did it assume that a subsurface clearance would be the case? One would think that as part of the handover and contracting process with regard to the post-PRT range clearances the NZDF would have informed DMAC about the presence of unexploded high explosives on those ranges and in return be provided with explicit knowledge of what type of clearance would be conducted in October 2013. If it agreed to a surface clearance knowing that it had potentially unexploded ground-penetrating high explosives on the ranges, then that would be a dereliction of its duty of care to the civilian population of the area.

One also has to ask about the role of the Afghans. After the NZDF withdrew from Bamyan, who gained control over the ranges? The Afghan National Police (ANP), the Afghan National Army (ANA), the DMAC or some other government entity? Were the ranges sign-posted and/or fenced off? Or were the ranges left open? Whatever the answer, there appears to have been some serious dereliction of duty on the part of those who inherited control of the ranges after the NZDF left.

Under Protocol Five of the UN Convention on Certain Conventional Weapons (CCW), countries are responsible for disposing of the Explosive Remnants of War (ERW) after they leave the area in which they operated. The responsibility is not legally binding and often ignored, but is the likely reason why the US and NZ negotiated the second round of range clearances with the UN Mine Action Service (UNMAS). That is important because in effect, the responsibility to “clean up” does not end when an armed organisation leaves an area–the issue is not about present control but of past usage.

To be clear: NZ has no enforceable legal liability for leaving subsurface UXOs uncleared after it abandoned the Bamyan PRT, even though the NZDF was aware of the possibility of their existence. Those UXOs were likely not fired from NZDF weapons but given the history of the ranges, the NZDF was quite likely aware of their presence simply because US forces had used the ranges and very likely mapped them out for their own protection, then handed them over to the PRT as an allied ISAF force.

The NZDF did have a moral-ethical responsibility to consider the non-combat consequences of leaving the ranges cleared to a surface standard given what had been fired in them. Since the stated purpose of the PRT was about nation-building, hearts and minds and the rest of that mission palaver, it seems that something got lost at the end.

None of that matters. According to the UNCCW protocol five on ERW, the NZDF and NZ government were obligated by international convention to assume responsibility for the initial and subsequent range clearances. That the NZDF failed to do so in the initial tender and handover to the first post-deployment EOD contractors, and that it took five years to negotiate a price for its participation in the obviously necessary follow-ups to what was clearly an inadequate job in October 2013, tells us something about the value placed by the NZDF on the lives of Afghanis, including their children.

Prime Minister Ardern said that she was first informed of the issue in 2018 and now, after the matter became public, has told the NZDF that it has been moving too slowly and needs to speed up its involvement with the UNMAS-led subsurface clearance process. This begs the question as to why she was not informed earlier about was a thorny military-diplomatic issue, which in turn raises yet again the matter of NZDF transparency and accountability to the government of the day.

By all public accounts, the Bamyan ranges do not contain unexploded ordinance from “heavy” air assaults or artillery, including cluster bombs, white phosphorus rounds or 500 to 2000 lb. bombs. If that were the case the whole story changes dramatically in several ways, including on the subject of responsibility. Assuming that they were only used for small arms and limited high explosive weapons training, then the US$10 million price tag for NZDF participation in the UNMAS clearance efforts in two abandoned firing ranges seems high but reasonable if it involves compensation to relatives of victims, deployment of NZDF EOD specialists back to assist in the range clearing efforts and/or paying the for salaries and equipment for honest and professionally competent EOD contractors. That is is predicated on UNMAS hiring EOD contractors that are not corrupt, incompetent or cronies of local officials and instead are totally dedicated to eradicating the deadly residue of a conflict supposedly gone past.

In the end, this is another reminder of the legacies of war and the unfinished business that remains long after troops come home. Because for those living in places like Bamyan, the war does not end when the foreigners leave.

The rot at the top (2).

datePosted on 16:14, October 15th, 2019 by Pablo

Thanks to a report from the Acting Inspector General of Intelligence and Security following a complaint by Nicky Hager, we have come to find out that the SIS illegally spied on Mr. Hager on behalf of the NZDF after publication of Hager’s 2011 book, Other People’s Wars. The NZDF justified its request by arguing that it was investigating potential espionage, although it turns out that it was actually looking for the NZDF source of leaks to Mr. Hager. This occurred when John Key was the Minister of Intelligence and Security, Warren Tucker was SIS Director and LTG Rhys Jones was Chief of the NZDF . Did the SIS and NZDF go rogue or were these individuals aware of the spying?

It seems hard to believe that none of these people were unaware of what their subordinates were doing. The NZDF request might have been accepted as a tasking under the partner agency agreement whereby the SIS assists other government agencies when and where needed. But for this to happen the Commissioner of Warrants or the Minister of Intelligence and Security would have to have approved the request. So the question is: did this happen? Was the request, while done through proper channels, truthful in its justification or was the warrant signed under false pretences? Or, did the NZDF and SIS agree to monitor Mr. Hager’s phone records without authorisation from above? If so, who authorised that action? Mr. Tucker and LTG Jones? Some mid level managers in the NZDF and SIS?

It should be noted that this unlawful spying occurred before the Police illegally searched Mr. Hager’s home and accessed his bank and phone records after the publication of his 2014 book, Dirty Politics. Here too we have the question of who, exactly, authorised the intrusion: the Minister of Police? The Police Commissioner? Someone below that rank? A friendly Justice of the Peace? Was the illegal Police access–again, supposedly to find the hacker called Rawshark who leaked to Hager a rightwing attack blogger’s emails and social media communications–a follow up or in any way connected to the previous NZDF/SIS investigation? After all, security agencies share information even after investigations are concluded or cases closed, so it is not inconceivable that the SIS file on Hager was forwarded to the Police once they opened their investigation into Rawshark’s identity. Ironically, the Police ended up with the same result as did the SIS when looking for Hager’s sources: nothing.

After the Acting IGIS issued her report, the Director General of Security (head of the SIS), Rebecca Kitteridge, issued an apology to Mr. Hager, seven years after the fact. But apologies are not enough. Punitive sanction must be meted, however retroactively, on those who ordered the spying in both the NZDF and SIS as well as those in cabinet who may have been aware of it. Will that ever happen? It is for the current Labor-led government to decide, which means that it needs to seriously think about yet another official Inquiry.

This may seem tedious and burdensome on the taxpayer, but it is now pretty clear that there is a systematic pattern of abuse of authority in the NZ security community. In the last ten years the Police, GCSB, NZDF and SIS have all been found to have committed unlawful acts against NZ citizens and residents. Little to nothing has been done to address, much less correct these institutional excesses, so the opportunity is ripe for a calling to account from those involved. Once the inquiries into Operation Burnham and Christchurch terrorist attacks are finalised and their reports submitted, that can be used as a starting point for a fuller inquiry into what I have previously labeled the “culture of impunity” that pervades the repressive apparatus of the NZ State.

As things stand and unless an investigation is launched into the mechanics of these unlawful and illegal acts, those who ordered the spying are likely to go unpunished. The maximum penalty for the SIS breaking the law is a $5000 fine for the agency, not any individuals employed in it. Key, Jones and Tucker are all retired and unlikely to receive any a posteriori punishment. So unless there is an investigation and subsequent law changes that hold people strongly (and retroactively) accountable for ordering or facilitating illegal acts committed by security agencies, impunity will endure and the institutional foundations of NZ democracy continue to be corroded from within.

The rot at the top.

datePosted on 11:46, September 20th, 2019 by Pablo

When military leaders cover up and lie to elected civilian authorities, the foundation of democratic civil-military relations is undermined because it is those authorities who are entrusted to hold the military accountable to the public that they mutually serve. But this is only true if civilian political authorities take their responsibilities seriously and accept that when it comes to military operations the policy buck stops with them.

The same is true for intelligence agencies in democracies. While specific operational details remain within the agencies involved, the general policy guidelines for how they conduct those operations, and the responsibility for them, rests with a) the legal framework governing their activities and b) the elected civilian governments that are their overseers at any given point in time. For both the military and intelligence community, this means exchanging corporate or institutional autonomy-that, is, the ability to set internal standards, practices and objectives free from political interference–in return for submission to civilian political authority on broad matters of policy and accountability.

In recent weeks we have discovered, thanks to the Inspector General of Intelligence and Security’s report on NZ involvement in the CIA-operated extraordinary rendition/black site/torture program, that the NZSIS and GCSB received and supplied information that was directly linked to detainees who were subject to torture by the US and other allies in the coalition fighting al-Qaeda and the Taliban. The directors of these agencies at the time claim that their agencies did not know about the program even though they worked hand-in-glove with the CIA in Afghanistan and elsewhere and even though knowledge of the extraordinary rendition/black site program and the use of torture was in the public domain as early as 2004. From what is described in the IGIS report, it appears that NZ intelligence bosses had their own version of “don’t ask, don’t tell” when it comes to what the US was up to. As Richard Woods, former NZSIS director general, is quoted as saying in the IGIS report (I paraphrase here), “do you really expect us to ask the US directly about such things and risk our relationships with it?”

When confronted about this discrepancy by the IGIS the former directors maintained the high-ranking government ministers of the day were privy to all of the sensitive information regarding NZ’s intelligence relationships and that as agency directors they had no authority to engage in moral, ethical or legal judgements about what their allies were doing even if these actions violated NZ and international law–all while maintaining that they knew nothing about unmarked airplanes, black sites, torture and suspects being captured (including by the SAS) and then “disappeared” into the covert operations labyrinth.

That broaches the question as to whether former directors Richard Woods and Warren Tucker are simply lying (former GCSB chief Bruce Ferguson was a late arrival to the events under investigation and inherited his situation from Tucker) and prefer to put NZ intelligence relationships with the CIA ahead of their supposed duties to the NZ government and nation as a whole. Or, did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it? It should be noted that Barack Obama ended the extraordinary rendition/black site/torture program shortly after he assumed presidential office in January 2009, so the bulk of NZ’s involvement with it happened under the 5th Labour government.

With regards to the NZDF, thanks to the book “Hit and Run” by Jon Stephenson with Nicky Hager and the ensuing Royal Commission of Inquiry into Operation Burnham (the subject of the book), we now know that the military brass did not inform (at best) or mislead (at worst) senior government officials about the possibility of civilian deaths in that mission until news of it became public (again, mostly thanks to the work of Mr. Stephenson in his series on NZSAS activities in Afghanistan). The NZDF story constantly changed as more was revealed, and the Inquiry has now found out that a critical NZDF document recognising the possibility of civilian deaths was “lost” in a secure safe for three years and that a register of who opened and closed that safe during that time frame somehow went undiscovered until this week. Former ministers in the Key government, which was in office when the mission was conducted, maintain that they were unaware of the existence of anything that would contradict the original NZDF version of events, which claimed that only “terrorists” were killed.

That raises a profoundly disturbing possibility whichever way the truth falls in each case. On the one hand, it would appear that senior NZ intelligence and military officials do not inform and in fact cover up controversial operations that occur under their watch. The civilian authorities to whom they ostensibly answer to in the division of labour that constitutes the foundations of democratic civil-military/intelligence relations are deliberately left in the dark. This suggests a level of arrogance and sense of imperiousness that is inimical to democratic governance because there is no regard for personal or institutional accountability embedded in their decision-making. They simply do as they see fit and lie about it afterwards.

On the other hand, it is possible that military and intelligence officials respect the concept of civilian political authority and inform governments of the day of everything that they are doing, including when things go wrong or unpleasant compromises are made in the interest of national security. This can be considered to be a variant of the “no surprises” policy in which governments are informed apriori of controversial decisions so as to not be caught off-balance when said decisions become news. If that is the case, then political managers shoulder responsibility for the policy decisions under which the NZ intelligence community and NZDF operate, including taking the blame when things go wrong or uncomfortable facts are revealed about what NZ security forces are doing at home and abroad.

However, it appears that in NZ there is not only a variant of “don’t ask, don’t tell” operating in the intelligence community, but it is attached to a civilian political management approach whose operating premise is “don’t want to know.” That is, civilian political authorities display willful ignorance in an effort to maintain plausible deniability when things go wrong or prove politically fraught. That may be expedient over the short term but abdicates responsibility when it comes to civilian oversight of the military and intelligence community, thereby tacitly encouraging military and spy agency impunity during and after (often lethal) operations.

Coverage of the Royal Commission on Inquiry into Operation Burnham has focused on the supposed incompetence of senior NZDF officers when it came to document security and disclosure. “Incompetence” is the most generous interpretation of what was at play here. “Conspiracy based on deliberate and coordinated lies and misrepresentations authorised from the top” is an alternative interpretation. The questions now are: which of these two interpretations seems more plausible and will anyone be held to real account in any event? Surely, if the government of the day was deliberately lied to or mislead by the NZDF and was not complicit in the coverup, then there is criminal liability involved.

The same goes for the intelligence agency chiefs who say they did not know what their subordinates were doing during the years in which the CIA-operated extraordinary rendition/black site/torture program was running. If they lied to their political masters about what they knew, then there should be consequences for that even if it has taken time to uncover their deception. If the political authorities at the time knew about NZ intelligence community involvement in the program, that should become a matter of public record even if little can be done in terms of retroactively applying punitive sanctions on their behaviour..

Not to put too fine a cynical point on it, but perhaps there is another hand at play in both instances. The IGIS report on NZ involvement with the CIA extraordinary rendition/black site/torture program speaks at length about managerial misadventure in the NZSIS and GCSB and even “naivety” in the discharge of their duties (when was the last time anyone ever heard the word “naive” associated with spy agencies?). The Inquiry into Operation Burnham has heard about “mistakes” and “oversights” on the part of NZDF senior leaders. It would seem that the common denominator in both is incompetence rather than wilful or deliberate circumvention of ethical norms, legal obligations and constitutional responsibilities.

Could it be that “incompetence” is the ultimate “get out of jail” card for public servants found to have failed in the discharge of their basic obligations and responsibilities?

A fraught inquiry.

datePosted on 16:21, June 20th, 2019 by Pablo

The inquiry into whether the SAS acted illegally during a nighttime raid on a suspected insurgent’s hideout in Afghanistan in 2010 (code named Operation Burnham), which resulted in six civilian deaths and serious wounds to 15 others, is slowly coming apart. This is unfortunate because the NZDF, which has allocated NZ $8 million to its representation at the inquiry, looks likely to be let off the hook even though the inquiry has revealed a pattern of lying, deception and cover up on its part. The issue transcends the actions of the SAS and allied forces on the ground and moves into the behaviour of the NZDF chain of command in Afghanistan and NZ after the first reports of civilian casualties came to light. Unfortunately, it now seems that will be whitewashed into oblivion.

So far the Inquiry (chaired by Sir Geoffrey Palmer and Sir Terence Arnold) has revealed that contrary to NZDF statements, civilians were known to be killed from the beginning and that at least some of them were “MAMs” (military aged males) who were unarmed. It also revealed that, again contrary to earlier NZDF reports, a US AC-130 gunship was involved in the operation and hit targets as they fled the villages in which the operation was conducted. Some of these may have been women and children, although the NZDF changed the identification of civilians to possible “INS” (insurgents) once the raid became a matter of public attention. The after-action reports demonstrate that little difference was given to suspected INS and MAMs when calling in air strikes, and that the AC-130, which is a rather blunt instrument when used on people out on open terrain, was the primary instrument of death. Only one person was killed by an SAS trooper, that being a hapless unarmed shepard who stumbled towards a SAS sniper position providing cover from a ridge line above the villages.

The NZDF’s (unnecessary, in my opinion) deception and cover up will largely remain lost because of two things: there secrecy in which the Inquiry has been shrouded; and the tactics of some of those who brought the matter to public attention. Let me explain.

The Inquiry was set up as a result of the allegations in a 2017 book by Jon Stephenson and Nicky Hager titled “Hit and Run.” The book followed a series of magazine stories by Mr. Stephenson about the SAS in Afghanistan and the Operation Burnham raid. Mr. Stephenson did almost all of the field research and original writing that went into the book, with Mr Hager joining later in order to add weight to the venture and bring it to quick publication in an election year. Although Mr. Hager got first author treatment on the cover page and in the media, the truth is that Mr. Stephenson was responsible for the majority of what was written in it.

As can be expected given their different roles in the project, the authors differed on some key issues, including the use of non-military maps to illustrate the location of the targeted villages and the tone of some of the language used to describe the SAS’s actions (which have been described by some as “war crimes” committed in revenge for the death of a NZDF soldier weeks earlier). One bone of contention was whether in fact any Taliban associated with the deadly attack on the NZDF land convoy were present in the village of Naik. That matters because the NZDF said that there were and that justified the raid. As it turns out, Mr. Stephenson subsequently reported that indeed, two Taliban commanders–the objectives of the “kill or capture” SAS-led mission–were present in the village but left before the raid commenced. However, the book claim is that no insurgents were present, apparently because none were found by the SAS in the targeted villages and Mr. Stephenson had not yet been able to secure interviews with the escaped Taliban commanders before the dateline for publication. The discrepancy does not invalidate the many other claims in the book but points to differences in journalistic approach between the two Hit and Run authors–differences that, along with other errors in the book (such as location errors on the maps used in the book), the NZDF and its supporters have been quick to seize upon.

The book came out, a furore ensued, the NZDF pretty much denied everything, then slowly began to correct its narrative and admit to much of what was written, and an Inquiry was eventually launched once the Labour-led government was installed (the previous National government refused to launch an inquiry and accepted the NZDF version of events).

The scope of the Inquiry was initially narrowly construed: determine what happened and whether the SAS and its Afghan and US partners contravened the laws of war. This is what led to the near-blanket extension of secrecy to the evidence and testimony given before it, as multiple agencies such as the GCSB and SIS had some involvement in the affair, SAS personnel are normally given anonymity during official investigations, and sources, methods, tactics and the names of individuals could be compromised if transparency was faithfully observed. This has led to disappointment in some quarters and increased tension between the Inquiry leaders and the accusers over the lack of transparency.

The bottom line is that whatever the legitimacy for the rationale behind keeping much of the Inquiry secret, its primary focus was always about the how Operation Burnham unfolded as a combat event. Questions about NZDF post-event misrepresentation could only be addressed once the facts on the ground were established.

I am ignorant of the exact timing of their entrance (perhaps even from the onset), but at some point the much celebrated team of Deborah Manning, Rodney Harrison QC and Richard McCleod (of Ahmed Zaoui fame) were invited to represent the victims of the raid in the Inquiry. It was at that point that things began to fall apart. The reason is that adding the villager’s perspective into the mix at the same time as responsibility was being determined muddled the Inquiry by stretching its terms of reference. Again, the original scope of the Inquiry was to determine what happened, whether illegal acts were committed and to attribute responsibility if so. Once that was established then the issue of reparations, compensation and other forms of victim redress could be discussed because it would be clearly established how they were victimised.

This is an important distinction. It is appropriate for the villagers to testify as witnesses. It is another thing to have them testify as victims. The former seeks to uncover other points of view on what was a chaotic nighttime operation. The latter presupposes culpability and concentrates on the matter of redress. Yet, judging from the legal team’s statements, it is this second matter that appears to be the focus of the villager’s representation in the Inquiry.

Under such conditions allowing villager legal representation to sit alongside the book authors who made the claims against the NZDF in the first instance is akin to putting the cart before the horse. To phrase it in political science terms, it is a case of methodological inversion because the focus on the villagers-as-victims selects on the dependent variable (the situation after the raid) rather than on the independent and intervening variables leading to the outcome (the reasons for and conduct of the raid). Put even another way: Yes, we know that innocent people died and were wounded in the raid and that the NZDF attempted to cover it up. But the question is whether they were killed unlawfully, and if so, by who, exactly? It is only when those questions are answered that discussion of what to do by way of redress can begin.

Unhappy with the proceedings, the villager’s legal team has quit the Inquiry (there is much talk about the villagers being disillusioned with the Inquiry but one has to wonder how much agency did they have and how conversant with the proceedings were they given the fact that they are largely illiterate peasants living in remote valleys 14,000 kilometres away from where the Inquiry is being conducted). Now Mr. Stephenson has publicly revealed that, based on interviews with them, two Taliban commanders were in Naik after all. That is problematic because it contradicts the villager’s original testimony as claimed in the book (which stated that no Taliban were present in the villages before the raid) and Mr. Hager’s supporting remarks to the Inquiry (which Mr. Stepehnson apparently contradicted in his testimony to the Inquiry months ago, where he left open the possibility that Taliban were present in the village before the raid but which he did not confirm publicly until recently). This still leaves a lot yet to be determined but certainly gives the impression that all is not well on the accuser’s side of the table.

I believe that the thrust of the book is correct even if mistakes were made on details and the language in it is a bit strong at times. Although controversial, Mr. Hager’s previous writing on matters of NZ security and intelligence have largely been proven correct. I have a ton of respect for Ms. Manning and Mr. Stephenson in particular, both of whom I know socially. I also believe that the SAS are very professional and are not prone to killing people for the sport of it. What I do not have much regard for is military superiors using secrecy and public relations to spin stories that evade the truth and which serve to shirk responsibility when things go wrong.

Alas, the NZDF brass may prevail in this instance. Most of those in leadership positions at the time Operation Burnham was conducted have moved on to other pastures and would not face punitive sanctions in any event. A few middle ranking soldiers might be called to account but it is doubtful that anything career threatening will happen to them. The soldiers who conducted the raid are very unlikely to be found to have committed illegal acts given the fog of war in difficult circumstances (I say this having read a number of the after-action summaries provided to the Inquiry).

Perhaps I am wrong and the Inquiry will find that the NZDF falsified documents and mislead the civilian leadership of the moment as to what actually occurred that night (one should recall then Defense Minister Wayne Mapp’s statements immediately following the raid versus later, once the book was published and he was revealed as a source for it). In that case perhaps some heads will roll. But I find that prospect unlikely.

What I do find likely is that, undermined by competing agendas amongst the principles involved in confronting the NZDF and shrouded by the mantle of secrecy afforded to it by the Inquiry, the military will pay no price even in the event that mistakes were made and innocents hurt as a result of them. I hope to be proven wrong and stand to be corrected if any of the above analysis is faulty, but at this juncture I think that in more ways than one the NZDF may well have dodged a bullet.

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