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“Poor record keeping”, “inadequate processes” and a “serious information gap” hampered investigations into the alleged killing of civilians by the New Zealand Defence Force in Afghanistan.
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The new comments come from Chief Ombudsman Peter Boshier regarding an inquiry into Operation Burnham by the New Zealand government, originally announced in April 2018 and closed in 2020.
New Zealand Special Air Service (NZSAS) personnel and other international forces took part in Operation Burnham in Afghanistan as part of the International Security Assistance Force in 2010.
The original inquiry examined statements published by the 2017 book Hit and Run and scrutinised the conduct of New Zealand Defence Force (NZDF) and treatment by the NZDF of reports of civilian casualties following the operation.
Allegations detailed in Hit and Run, written by journalists Nicky Hager and Jon Stephenson, involved the alleged deaths of a number of civilians in Tirgiran Valley, Afghanistan, during a New Zealand-led raid on 21–22 August 2010 and alleged subsequent suppression of information surrounding the deaths.
In 2020, an independent inquiry undertaken by former Supreme Court judge Sir Terence Arnold and Sir Geoffrey Palmer found that the actions of the NZSAS on the ground during Operation Burnham were professional and lawful, and that there were insurgents present.
In a public statement issued on 16 May this year, NZ Chief Ombudsman Boshier stated that a summary of information released by the NZDF under the OIA was incomplete and significantly underplayed the nature and scope of Operation Burnham.
“I decided to initiate my own investigation into the actions of the NZDF when engaging with me as required by law, and I found that the evidence presented at the Burnham inquiry confirmed I wasn’t given access to all information relevant to the OIA requests in 2018. This included important documents relating to civilian casualties,” Boshier said.
“While there was no evidence that the NZDF deliberately misled me, I believe a combination of circumstances including its very poor record keeping and inadequate processes meant I simply didn’t have all the facts.
“This serious information gap undermined my initial investigation and meant the NZDF avoided being accountable.
“It transpired that despite exhaustive efforts to locate all relevant documents, I didn’t receive everything I should have. Relevant material held elsewhere within Defence should have been provided. My investigation found that the defence force staff who were tasked with finding that information didn’t even know it existed and so didn’t ask for it. Incredibly, there were no formal ways of checking this.
“It is crucial that agencies give me a balanced and complete picture when I am investigating, especially on topics like New Zealand’s security and international relations. This includes putting effective processes in place to record, retrieve, and consider information.
“My job is to make sure the OIA operates effectively as intended by Parliament. This is a key constitutional measure and a cornerstone of our democracy. I cannot allow it to be undermined, either deliberately or inadvertently by an agency.
“A case of this nature also has an impact on the effective operation of the OIA generally, and harms the ability of the Ombudsman, as an Officer of Parliament, to provide effective review and remedy for aggrieved requesters. It also harms the perception of New Zealand as one of the most transparent countries in the world. It follows I will closely investigate any such allegations, as I did here.”
Boshier has requested a further update in six months on progress the NZDF has made on the recommendations of the Expert Review Group set up as a result of Operation Burnham, and implementing any improvements and changes which it highlights.
The NZDF has issued a public statement on 17 May that it will work constructively with the Ombudsman’s Office.
“The NZDF has been working constructively with the Ombudsman’s Office on this matter since the investigation was commenced two years ago. As the Ombudsman has concluded, despite exhaustive efforts to locate all relevant documents, the NZDF acknowledges that its poor record-keeping processes at the time were such that staff were unable to locate all relevant documents.
“This was revealed during the extensive and intensive two-year Operation Burnham inquiry, and the NZDF has put in place a program to enact the improvements recommended in the 2020 report of the Inquiry.”
