We can honour both our soldiers and the Afghans, but only by finding out what really happened on that August night in 2010... though that may not require a full inquiry
War is different from any other organised human activity. Decades, even centuries, after military conflict, the reasons for it are examined and consequences are measured. A nation's conduct is weighed in the balance.
Over the past 25 years, New Zealand has spent a great deal of time examining the consequences of the New Zealand Wars of the 1860s. We have done so because we want to do right, not because we were legally obliged to do so. The restorative and recuperative value of doing so is internationally recognised. In the process we have built a fairer and more just nation.
The war in Afghanistan has been New Zealand’s biggest military engagement since Vietnam, which is now two generations ago.
As much as anything this explains why I agreed to be interviewed by Jon Stephenson. He has spent more time in Afghanistan than any other New Zealand journalist. As with many independent journalists reporting from war zones this has not been without controversy.
In August 2010 when Operation Burnham took place I was in Afghanistan on a visit arranged months before. I understood that the operation was among the most significant operations that New Zealand had undertaken in Afghanistan.
I had been fully briefed on the plan on the morning before it took place. Based on the briefing, and on the advice of the military professionals, I recommended that it proceed.
I have no doubt that New Zealand soldiers act to the highest ethical standards. That is why it has always been clear to me that the actions of our soldiers on the operation were done with honest intent and professionally. Lt Gen Keating’s press conference on Monday 27 March more than amply confirmed that.
But that is not the end of the matter. I knew that the operation had not achieved its stated aims of arresting or otherwise dealing with the people who had been identified as leading and organising Taliban operations against the PRT (Provincial Reconstruction Team). I knew this because I was formally briefed on that fact at the time. I also knew that other people had been killed. As I have said in interviews, these people were acting as insurgents, in effect acting as enemy combatants.
As in all guerrilla war, it is often a case of villagers by day and insurgents by night. It was a reasonable and appropriate decision to engage them as they looked to be attacking the New Zealand soldiers on the ground. In such a case we have an absolute right to defend ourselves.
But it became clear later that it was also possible there were other casualties. In particular, the death of a three year-old girl.
This emerged in a television documentary in 2014. Stephenson also told me enough about what had happened for it to be believable that this could have occurred, even if it was not fully proven.
The law of armed conflict accepts that civilian casualties might occur in military operations, and in many cases there is no legal liability for them, particularly if they were accidental.
But for New Zealand, is that the end of the matter? Do we hold ourselves to a higher standard?
For me, it is not enough to say there might have been civilian casualties. As a nation we owe it to ourselves to find out, to the extent reasonably possible, if civilian causalities did occur, and if they did, to properly acknowledge that.
This does not necessarily require an independent inquiry, such as lawyer Deborah Manning wants. In fact we are most likely to get this sort of information through diplomatic approaches to the Afghan government, and trusted NGO’s on the ground.
We do not require fault for injury to be compensated in our own country. ACC is a no-fault system of compensation. The Treaty of Waitangi compensation is not primarily motivated by an accounting for fault. It is part of Afghan culture that compensation is made in recognition of loss.This is a process of restorative justice, rather than determining liability.
On this measure, the accounts of the NZDF and Stephenson are reconcilable, given the recognition that civilian casualties may have occurred.
New Zealand has good reason to be proud of the professionalism of its defence forces. The SAS are among the most highly trained and respected soldiers in the world. In our name, we ask them to undertake the most hazardous military missions, often deep within enemy held territory. They have an absolute right to defend themselves against attack. The risk of capture of our soldiers by the Taliban would be beyond contemplation.
Part of protecting their reputation is also finding out what happened, particularly if there is an allegation that civilian casualties may have been accidentally caused. In that way we both honour the soldiers, and also demonstrate to the Afghans that we hold ourselves to the highest ideals of respect of life, even in circumstances of military conflict.