Well, no one should have been surprised that the government opted to not convene an inquiry into the allegations made in the Hager/Stephenson book Hit and Run. It preferred to let those accused “investigate” themselves and come up with an exoneration, then let the PM bad mouth the authors while wrapping himself in pseudo-sentimentality about the impact the accusations had on military families. SOP from National and the NZDF, especially in an election year.
Even though they may have forced a delay in ascertaining the truth as to what happened that August night in Afghanistan, they may have set themselves up for a bigger fall, albeit one that will cost taxpayers far more than if the inquiry had been done under the aegis of the Solicitor General, Inspector General of Intelligence and Security or some other reputable and independent local jurist. That is because if a state refuses to investigate allegations of war crimes committed by its troops, then that bumps up the matter to the International Criminal Court in The Hague. The ICC can be petitioned to open an investigation and launch prosecutions against those suspected of war crimes if a state refuses to do so, and that may eventually be the case here.
The government strategy at this point seems to be to refuse an inquiry and force interested parties to make a case under the Inquiries Act, in the courts under one or more Acts, or in international bodies like the ICC. That is expensive and time consuming, so those willing to challenge the NZDF’s self-exoneration must be well resourced and prepared for a lengthy legal battle. In the meantime crucial evidence may disappear, sources for the allegations may change their minds out of fear of reprisal, material inducements for non-cooperation with investigators may be offered–no one should be so naive as to think that those under potential scrutiny would not stoop to such things.
The government is also clearly banking on political pressure for an independent investigation waning rather than increasing in the weeks and months ahead. It is confident that political parties will focus on the election and the media will move on to other things over the next few news cycles and that the claims will be forgotten by the public in short course. There are grounds to believe that it may be correct in these assumptions, but that depends on how interested parties feel about matters of truth and accountability in public institutions such as the military.
The government could well be daring the likes of Rodney Harrison QC, Deborah Manning and Richard McLeod, who are representing the survivors of the alleged attacks and who successfully represented Ahmed Zaoui against the then-government’s mischaracterisation and detention of him as a dangerous terrorist, to take the case to the ICC. That is because although New Zealand is a member of the ICC, the US is not. Since the US Army provided the close air support for the raids and is implicated in the killings of civilians in the Hit and Run narrative, this means that a key part of any investigation–US complicity in the killing of innocents–will not receive US support or cooperation. In fact, the US is not a member of the ICC precisely because it does not want to see its soldiers or the authorities who command them ever face prosecution in The Hague. And without US participation, the presentation of the NZ side of the story would be incomplete at best, and thereby not a full account of what went down that fateful night. It is hard to mount an investigation or a prosecution, much less secure a conviction, without the participation of one of the principles involved. For a case to stand up in court a partial account of events is simply not enough without corroboration by others involved in the actions in question. This may be true for NZ courts as well as the ICC.
Even so, I am not sure that banking on US non-membership in the ICC is a winning strategy even if it adds to the costs and delays involved in establishing the truth and achieving justice for those needlessly harmed without cause. Refusal to participate in an ICC investigation could be worse for NZ’s reputation than agreeing to it and finding out that not all was as depicted by the NZDF version of event–even if war crimes were not committed.
The bottom line is that the government appears to be running scared with its quick acceptance of the NZDF clean up job. One video from a US helicopter and the NZDF report on the raid–a chronicle of events that leaves numerous questions unanswered, as pointed out by Selwyn Manning in the previous post–is all that it took to convince PM Bill English that all was hunky dory that night. Given that there were likely to be multiple camera angles and audio communications recorded during the raid by both the NZSAS as well as US forces for after-action de-briefings, the fact that just one served to convince the PM of the veracity of the NZDF account leaves me with only one simple conclusion with regard to Mr. English.Â In the words of Jack Nicholson playing a Marine Colonel under investigation for covering up a homicide at the Marine detachment stationed at Naval Base Guantanamo in the movie “A Few Good Men:”
YOU CAN’T HANDLE THE TRUTH!
The headline says it all. The NZDF is guilty of war crimes, and not for the first time in its unenviable history of reprisal raids, cold-blooded killing of non-combatants, and, over the past fifty years, involvement in a succession of morally unjustified and therefore unwinnable wars.
Why would we expect the New Zealand government to conduct an inquiry into this affair which it knows was a massacre of innocents?
Why would we need an inquiry when we also know full well that the New Zealand Defence Forces committed war crimes in Afghanistan?
The appropriate response in the circumstances is not to vainly call for a government inquiry, but to renounce all loyalty to a colonial regime which condones, and even authorizes, the commission of war crimes by its armed forces.
Sigh I really wish the Govt just get inquiry over and done with and compensate for any wrongs. Dragging out whole thing going to waste a lot of money and time especially with ICC since people would be on this like a dog on a bone. Honesty why can’t the Govt just get straight to the matter, is it politics or face? Its not like the villagers going to sue for a lot of money, something blood money I think.
Say in the end did the NZDF get the guy responsible?
From the Hit and Run account no insurgents were caught or killed that night (the NZDF says otherwise), and in fact no shots were fired at the raiding party. Two hapless individuals were shot and killed by an SAS sniper team when they approached the team’s hidden position, while the rest of the causalities were incurred when people fled the strafing. The problem is that the person calling in the strafing, known as a Joint Terminal Air Controller (JTAC) was an NZSAS officer (interesting skill to have for a country that has no close air support capacity), who may have used a laser designator (pointer) to “paint” targets for the helicopter gunship(s). Given that all of those killed and wounded were unarmed and the JTAC and other SAS troops were equipped with night vision goggles, that action is problematic to say the least.
The book goes on to allege that a few weeks later in a separate operation one of the people responsible for the ambush that killed Lt. O’Donnell was caught and handed over to the Afghan authorities, where he was tortured.
The colonial legacy may account for some of the NZDF’s culture of impunity (because the NZDF swore loyalty to the Queen rather that the government or people of NZ), but there are other factors involved. Ignorance of military affairs by politicians, public disinterest in the subject, the relatively technical and often hidden nature of operations, etc. leads to bureaucratic “capture” of the Defense Ministry and DPMC by NZDF brass when it comes to explaining what the NZDF does. Add to that the NZDF propensity to heavily play the nationalism and sacrifice card every time it comes under question, and what you have is an insular, self-serving institution that is not fully accountable either horizontally (to other government institutions such as parliament and the judiciary) or vertically (to the public and government of the day, and perhaps most worryingly, to the rank and file troops that it puts in harm’s way).
The problem is well enunciated by a surprisingly good article by Audrey Young in the Sunday Herald (April 2, 2017). Not known for being a critic, even she can see the problem clearly.
The New Zealand state is saying to its people “I am innocent until proven guilty. I have a right to remain silent. You cannot prove anything”. That would be a legitimate, even if questionable, response from a citizen accused of a crime. Yet the state is not a citizen. It is the organ of law and justice and therefore must be above reproach. The right to remain silent does not apply to the state. Nor can the state claim innocence until proven guilty when the state itself determines the sufficiency of proof of guilt in every case. The state has privileges, powers, authority and responsibilities which oblige it adhere to standards of transparency, integrity and lawfulness which go well beyond what would be demanded of an ordinary citizen.
If the state instead chooses to model on its conduct on that of the most morally dubious of its subjects, then there is only one solution open to us.
To quote the ancient legal maxim- “fiat rua justitia caelum- let justice be done though the heavens fall!”
If there is probably cause to believe that NZDF(or British/US) committed war crimes in Iraq then the state has duty to either prosecute or refer the matter to an outside court such as the ICC. NOT to do so mocks those who prosecuted German and Japanese soldiers and officers who engaged in similar activities after WWII and Nuremburg and the IMTFE(International Military Tribunal for the Far East)!