Operation Burnham Inquiry: NZDF admits Afghan target may have been unarmed
Monday, 29 July 2019
An SAS sniper killed an Afghan target without identifying if the person was armed during a controversial night-time raid.
The New Zealand Defence Force (NZDF) made the admission in a memo to the Operation Burnham inquiry published this month, after asserting the person was an insurgent carrying a weapon.
'It is not possible to determine conclusively whether or not the insurgent observed by the [remotely piloted aircraft] was armed at the moment he was engaged.'
The Government inquiry, at a third public hearing on Monday, heard the killing of civilians is prohibited under international humanitarian law, and suspected combatants should be treated as civilians if there is doubt.
**READ MORE:
* Operation Burnham: New Zealand Defence Force to be questioned on denial of civilian deaths
* US Apache helicopter footage of controversial SAS raid shows targets shot at
* New insurgent leader claims 'changes nothing' for Operation Burnham, co-author Nicky Hager says
* Insurgent leaders admit they were in Afghanistan village raided during NZ SAS's Operation Burnham
* Hit & Run inquiry blasts Nicky Hager and lawyers for holding back witnesses**
The inquiry is inspecting allegations in the book Hit & Run that six civilians were killed and 15 injured during the SAS-led raid.
The book's co-author Nicky Hager had previously questioned the NZDF's account of the sniper kill, saying it appeared unlawful.
Despite the admission, the NZDF maintained it was the lawful shooting of an insurgent regardless of whether the killed was armed. The memo said the Defence Force had not reviewed all material held when producing an account of the raid for the inquiry.
Declassified documents, produced after the raid, note the claimed insurgent wasn't seen to be armed when shot.
At Monday's hearing, Hager said the NZDF failed to distinguish between civilians and combatants, by deeming all military-aged males as insurgents.
'This is how the NZDF-led forces acted … Thus, for instance, an NZ SAS sniper was ordered to shoot an unarmed man.'
Professor Sir Kenneth Keith, a former International Court of Justice judge, advised the inquiry that international law stated military forces must distinguish between civilians and combatants at all times.
Attack musts only be directed against combatants and military, not civilian, objectives. Attacks which cause death or injury of civilians, excessive compared to the 'direct military advantage', are prohibited.
Lawyer for the Crown, Paul Rishworth, QC, said under international law a person should be assumed a civilian if there was doubt about them being a combatant.
'The obligation to take precautions to avoid or minimise civilian casualties does not mean that any attack that might result in civilian casualties, notwithstanding such precautions, is unlawful.'
A memo in response filed by Kevin Riordan, former NZDF director-general of legal services, said civilians who took part in hostilities were liable for attack under international law.
He said civilians were people who were not a member of an armed force, and in Afghanistan the international forces were required to 'distinguish between civilians who take a direct part in hostilities, and civilians who do not'.
'A person may be unarmed at the moment of the attack, and yet still be taking a direct part in hostilities – for example a commander ordering an attack by cellphone. A person who is armed, conversely, might not be taking a direct part in hostilities.'
The inquiry on Monday again heard arguments about the responsibility of New Zealand forces after transferring detainees to Afghan forces. It is alleged an insurgent leader was tortured after being handed over.
The NZDF admission regarding the sniper target was not the first revision of its statement. During an April hearing, Colonel Grant Motley said the sniper saw a shot hit the person but not whether it was fatal.
A memo was provided a week later, saying a member of Operation Burnham had afterwards informed NZDF the target's body was sighted by the SAS that evening.
HIT & RUN
In the 2017 book Hit & Run, co-authors Nicky Hager and Jon Stephenson claimed six civilians were killed, including a 3-year-old girl, and 15 were injured in a night time counter-attack on villages Khak Khuday Dad and Naik.
The raid was a response to the death of Lieutenant Tim O'Donnell, the first New Zealander to be killed in action in Afghanistan.
The pair also alleged insurgent leader Qari Miraj was transferred by the SAS to the Afghan National Directorate of Security and later tortured.
The NZDF has long refuted allegations that civilians were killed during Operation Burnham, though it has conceded that unintentional deaths possibly occurred due to the malfunction of a gunsight on a helicopter meaning rounds struck a building.
The inquiry, launched in April 2018, has been contentious. In recent months, previously classified footage showing US Apache helicopters firing on targets has been released.
Stephenson published an interview with insurgent leaders who admitting they were present the night of the raids, contradicting the co-authors' prior assertions.
In June, lawyers for the Afghan villagers announced their clients were 'completely disillusioned' and would be walking away from the inquiry.