Before examining the contents of the fresh Operation Burnham evidence released last week, the tortured route this evidence has had to take to reach the public domain has been astonishing in itself. Much of the written and all of the video evidence of the August 22, 2010 raid has previously been withheld from the lawyers acting for the Hit & Run co-authors, and from the legal team acting for the villagers. This denial of repeated requests for access to this written/visual evidence was made on national security grounds - and because (allegedly) the American military had refused to release the footage. Or would refuse, if asked.

Clearly, the NZDF didn’t try very hard to ask. Incredibly, after the lawyers made an application under the American Freedom of Information Act (FOIA) and backed their application up with court action, the Americans have released a redacted version of the (hitherto unknown) inquiry that they themselves conducted in 2010, into the Burnham raid. The Americans also released to the lawyers some of the relevant written and video evidence.

There could hardly be a better example of the skewed playing field faced by anyone trying to engage in good faith with our own Operation Burnham inquiry. Behind closed doors, NZDF has provided the inquiry heads with this (and related) evidence, and – in 2017 – used edited highlights of the raid to successfully lobby then-PM Bill English against the need for any inquiry at all:

[English] said that after viewing footage and seeing other classified information he was convinced the people killed in the raid were insurgents, not civilians. He said he had not viewed all of the raw footage of the operation, but what he saw - from aircraft involved in the mission - had covered the key parts that were in question.

"After considering [that] briefing, [General Keating's] letter to [Defence Minister] Gerry Brownlee and viewing video footage of the operation, I've concluded there is no basis for ordering an inquiry."

Mission accomplished! Yet consistently, NZDF has denied access to the same material to the legal teams challenging the conduct of the raid. As a result, the New Zealand lawyers have been forced to rely on the relatively open US military and FOIA processes in order to be able to participate adequately in a New Zealand inquiry. That’s an astonishing hobbling of the process of natural justice. To state the obvious: evidence can’t be rigorously tested, if one side of the process is being kept in blindfolds.

New Zealand taxpayers, who are funding the Operation Burnham inquiry to the tune of $7 million – and in whose name the night raid on these two Afghan villages was conducted - have every reason to feel incensed. Disgruntled taxpayers can download a zip file that contains the text of the US inquiry and some of the helicopter gunship video evidence from this site.

All of the quotes cited below by the US pilots and gunners are taken from item 1.pdf in that zip file.

Operation Burnham Redux To briefly recap… among other things, the NZ inquiry is examining the conduct of the raids mounted on the early morning of 22 August 2010 on two Afghan villages (Naik and Khak Khuday Dad). As usual with such raids involving special forces, this one involved flying in troops to encircle the target area, placing spotters and snipers on high lookouts, and then sending in assault teams to storm the buildings to capture or kill the targets. Those who tried to escape could be picked off by the surrounding snipers, or by the gunships operating in tandem.

Operation Burnham's main targets were three suspected Taliban insurgents: Maulawi Naimatullah and Abdullah Kalta of Naik; and Abdul Ghafar of Khak Khuday Dad.

In fact, none of those Taliban targets were killed or captured by Operation Burnham. Six villagers were killed however, including a three year old child. Two of those killed died outside Naik, and four died in Khak Dhuday Dad. 15 villagers overall were wounded, and 12 houses were damaged or destroyed, six apiece in the two locations.

So what does this new evidence indicate about how the air strikes that caused most of the casualties (and some of the damage to dwellings) were conducted? Keep in mind that this attack was New Zealand-led. The two Apache choppers and AC-130 Awacs gunship with which it was operating in tandem would (supposedly) be reliant on authorisation before firing. On the night though, radio communication with the ground units was reportedly “bad” at times, due to the terrain and to channel overcrowding by the aircraft themselves. Had the planning adequately taken such factors into account, and the implications for the vital communications and targeting decisions? On the available evidence, it hadn’t.

1.Were civilians adequately protected? In case anyone thinks that civilian casualties are a regrettable but inevitable outcome when fighting an insurgency, those attitudes were meant to be forbidden in the context of the Burnham raid. Mounting such a raid was not supposed to create a free fire zone, or anything like it.

Only three weeks before the raid, General David Petraeus, the International Security Assistance Force (ISAF) had issued a fresh directive aimed at minimising the incidence of Afghan civilian casualties, which were occurring at a level that was jeopardising the entire ISAF military mission, and were undermining efforts to win the ‘hearts and minds’ of ordinary Afghans. The Petraeus directive included this passage:

Every Afghan civilian death diminishes our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may prove to be strategic setbacks….Prior to the use of fires, the commander approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence, fires are prohibited [my emphasis] except under the following two conditions. [Due to operational security concerns, these specific conditions were not openly published, but had to do with the risk to ISAF and Afghan forces].

Much of the controversy about the Operation Burnham raid has revolved around whether sufficient care was taken at the planning stage and during the raid itself in order to meet the stringent duty of care towards civilians required by the Geneva Convention, and by the Petraeus directive. Medical care was not extended to the Afghan villagers wounded during the raid, and compensation has not been offered to villagers whose homes were demolished or damaged during the raid. Arguably, compensation by New Zealand is still due to the wounded and to those directly affected by the preventable damage done to them, and to their homes.

2. Could civilians reasonably be assumed to be present? These two villages were raided in the dead of night, after 12.30am. It had been 10 years since this valley has been subjected to ISAF or Afghan military action. Logically therefore, you’d think the default position would be that civilians would be present in the field of operations. This is where they lived, and worked.

On this point, the testimony given to the US inquiry of the pilots and gunners of the Apache helicopter gunships is revealing, and contradictory. At page 7, we’re told about the proximity of civilians and/or friendly ground troops: “The AWT crews stated that they chose not engage with at least five targets that they were cleared to engage, [because of] the Petraeus Tactical Directive.” On other occasions, (page 10) the civilians were simply not seen by the air crews distracted and fixated on their targets: “A [later] stop motion analysis of all the figures also shows two adult females and three children exiting one building next to the insurgents with weapons and moving rapidly into the adjacent building less than five metres away …Flight was initially unaware of these civilians as they were focussed on the insurgents...” As Paul Simon once put it: “A man sees what he wants to see, and disregards the rest.”

3. Look for insurgents, and you’ll find them. The lens through which spy agencies and the military view the world determines what they see. In those villages on the night of August 22, any Afghan with a weapon was by definition an insurgent, and therefore a legitimate target. So was anyone running for cover. The people being attacked were granted no legitimate room for self defence, and no other explanation for the behaviours observed was deemed valid. Anyone with a gun was a Taliban, anyone running for cover was readying themselves to counter-attack us.

Under their FOIA request, the lawyers obtained three videos in all from the two Apache gunships, all to do with the Khak Duday Dad attack. One of these videos shows a group of three people emerging from the house of the parents of one of the raid’s main targets, Abdul Ghafar. One of them is carrying a rocket-propelled grenade, another a rifle. They walk to the left of the picture around the corner of the building, talk to a woman, then one guy trips over - and as the sequence ends this man appears to hand a weapon to someone arriving from the opposite direction. While this is happening, a woman with a baby emerges from the door of the same house and walks towards the bottom of the frame.

What are we to make of this? Is it to be taken as evidence of armed insurgents readying themselves for a deadly attack on our forces who have just landed nearby? Or does it look more like neighbours who – having heard the thunderous arrival of the helicopters – are removing the RPG and rifle to dump them, lest a subsequent search land Ghafar’s parents in a heap of trouble for the weapons their absent son left in their house? At the very least, the image of the woman and baby should have reminded the gunship crews of the presence of civilians even in the very house believed (mistakenly) that night to contain one of the insurgents they were seeking to eliminate. It has to be said that, at this point, the gunships did not open fire.

4. What did the killings on the hillside tell us? The next video (taken shortly afterwards and screened only to the media) shows two of the same group of villagers being killed and another wounded, out on an open hillside. For obvious reasons related in part to the Christchurch mosque attacks, this video has not been publicly released, given the sensitivities around the imagery of Muslims being shot, and the uses to which such footage could be put. Again though, were these people really insurgents? The fact they were scrambling out in clear view on open ground suggests otherwise; and at this point, they do not appear to have weapons. (Which would support the theory that the weapons seen previously were being dumped, rather than readied for use.)

As this video footage clearly showed, one of the Apache attack helicopters was repeatedly misfiring. Twice, the gunship lined up a target in the crosshairs and fired: and twice, the explosions were skewed, high and off to the left. At this point, the Apache gunners became aware of the automatic gunnery failure. See the page 53 testimony: “I remember that my gun was off. It was not firing as it was advertised on the screen.” The option to revert to manual gunnery was not taken.

This known fault with the technology became of deadly significance in the next sequence, as the third villager limped wounded back down towards the village. On the hillside, the gunship fired on him again and once again, missed – with the firing once more going upwards, and off to the left. Soon afterwards, this same villager limped on amongst the village buildings and regardless, the gunship fired on him again. See page 10: “Due to problems with weapon accuracy, the 30mm bursts missed the intended target and instead hit close to qalats (houses) and on the roofs of two of the buildings.”

So… despite the fact that (a) the target was now surrounded by dwellings and (b) despite the fact that this gunship has had at least three prior warnings that its guns weren’t shooting straight, and (c) despite the Petraeus Tactical Directive… it opened fire, with fatal consequences for those among a group of 20 civilians huddled against a wall nearby.

From the evidence contained in the US inquiry… the Americans subsequently treated Operation Burnham as a teaching example of how not to behave in future. As one crew member says frankly at page 33:

“This was seen as an okay shoot, but a poor engagement. The tape was played in front of the entire troop and used as a lesson for better engagements with respect to the Tactical Directive [about caring for civilians] and better gunnery skills when the gun is not 100% operational.”

Ditto, the US inquiry summary says at page 10: “The unit effectively used this mission as a way to make improvements in their processes with regard to weapons maintenance, crew training and overall understanding of the Tactical Directive.” Too bad that five people had to die – including a three year old child called Fatima – in order to make those learning experiences possible.

Did the gunships (and presumably, their controllers on the ground) know that civilians were perilously close by? The US inquiry concludes that yes, they did. In the summary on page 11, we find that “[The gunship crews] knew there could be civilians in the area, and that that they would have to be cautious with fires.” But this is lifted verbatim from the testimony of one crew member at page 33. On page 25 though, another crew member says: “I do not remember anything about civilians being discussed at the time of this operation. ” On page 29, yet another crew member says: “I do not recall any mission brief about women and children being in the area.” One crew member even cites the belief held in some quarters that the Taliban had driven civilians out of some areas altogether.

5. Can we rely on the videos? In fact, some of the evidence was edited out of the video taken by the Apache helicopters, but got caught on audio by the AC-130 AWACs aircraft. The fact that some of the footage was edited (and the footage subsequently taped over) was a routine practice, unless a significant reason was suspected for keeping all of it. But the crucial thing here is that a comparison with the AWACS audio confirmed that this editing occurred mid-sentence, thereby eliminating the Apache crew having observed the presence of a woman within the huddled group, before the firing commenced.

What the AWACS audio captured was this: “We have five non-friendly personnel next to a building approximately 200 metres in front of your armed patrol, the ground patrol is moving towards the people huddled by the building, at least one is female.” Yet the Apache editing – supposedly accidentally – stops at the word “building” and neatly eliminates the phrase,“at least one is female.” Frankly, it seems impossible to believe that such a judicious piece of editing was accidental, but the US inquiry bought it regardless. For the NZ inquiry, this episode underlines the need for all of the raw footage to be made available, to all of the formal participants.

6. What’s The Bigger Picture? Obviously, what the lawyers have obtained from the Americans is only part of the picture of the events that occurred that night at Khak Khuday Dad. As mentioned, the Apache crew members make references to other “insurgents” observed subsequent to the events outlined above. See page10: “After completing this engagement, all assets continued looking for threats, and identified additional armed personnel walking down a road in the same area, and engaged the enemy personnel.” On page 58, there is reference to “five men exiting a qalat all of which had weapons.”

So… one can only assume there is additional footage of this encounter, and of the rest of the Khak Khuday Dad operation. Is there any video evidence at all of the raid on the Naik village? Only the NZDF and the Americans would know for sure. Moreover, does audio exist of the radio communications between the ground control of this NZ-led raid and the Apaches/AWACs gunships – which would be relevant to evaluating what control, if any, the New Zealand operation leaders exerted that night over the decisions made by the Apaches and the AC-130. At pages 49 and on page 53, there is testimony from two different Apache crew members about not being able to establish radio contact with the ground, and thus holding fire until ground contact could be resumed, and the firing authorised.

This was – to repeat – a New Zealand-led operation, with the help of our ISAF allies. In mitigation, we’re told that communication that night was “ bad” until the point when it wasn’t. See page 53: “ The radios were a problem that night. Our communications were very bad.” (Though do see also the crew testimony at page 33: “It was a clear night and we had good situational awareness. We also had a good line of communication.”) Some of the (surely foreseeable) problem with the air/ground communication was due to the raid’s own aircraft, notably (see page 53) by the way that the AWACs gunship would inadvertently block the available channels.

Assuming that these communication difficulties – some of them self-created – did exist that night, would this mean that the Apaches operated at times without our authorisation? Who knows. Even more to the point, by what practical means did the New Zealand ground forces propose to tell the difference in the dark between civilians and combatants? To be more precise… how exactly did we tell the difference between actual Afghan civilians taking cover to avoid being shot by our gunships or snipers, and possible Afghan insurgents taking cover with bad intentions in mind? On page 58, there is the alarming observation that “During the brief, it was stated that anyone leaving the objective was declared hostile.”

This readiness to treat all observed behaviour as hostile was repeated with the mention on the same page of “multiple individuals moving around tactically [!] and bounding behind terrain for cover” when fired upon. Yep, innocent people wouldn’t duck for cover if a helicopter gunship appeared overhead, and began raining down death from above. Seriously, how well did the NZDF (a) pre-planning, (b) behaviour on the ground, and (c) its operational control on the night – observe not only the official Rules of Engagement, but the Tactical Directive for minimising civilian casualties that had just been issued by Petraeus, the ISAF commander? Keep in mind those warnings from Petraeus: “Prior to the use of fires, the commander approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence, fires are prohibited.”

That’s not what happened - judging by the civilian death toll from the raid, and judging by the excited audio picked up by the AWACs gunship, and transcribed at page 66. Note in the following transcript how the gunner is well aware that he needed to adjust his misfiring weapon ; and also note his wishful thinking that his subsequent misfire hadn’t hit the huddled group of about 20 civilians he’d previously observed:

Guys right here want to shoot, they just shot at him [the wounded insurgent] and missed. Got him in sight? Yep, I need to make an adjustment though. Okay, what weapon? I can hit him with a Hellfire [missile] Shoot, shoot. (Radio contact nixes that idea.} No Hellfire. Firing, miss, impacts are long. Do not appear to hit huddled group. Rounds appear to hit building next to huddled group, but not group itself. [In all likelihood, the child Fatima was killed by the shrapnel from this burst of fire.] Yeah, got to adjust. Did you get him? Etc etc.

On page 53, there is this lament by one of the Apache crew: “I would say that one lesson learned from this is to slow down a bit, but there is rarely a mission that allows that.” Not like in Iraq, the same guy adds, where the crews could authorise their own firing, evidently without fear of being hauled over the coals afterwards.

7. Why Have We Never Accepted Blame? Ultimately, the buck for what happened during the Burnham operation stops with us. This raid was after all, a revenge raid – for the death via an IED of Lieutenant Tim O’Donnell earlier in the month – and it was initiated and led by New Zealand. Not only did we live in denial that any civilian casualties had actually occurred…but soon afterwards, we even welcomed the tactical benefits we saw as flowing from the collective punishment that we’d just inflicted on the villagers - apparently, because we believed that our punitive actions were inducing the civilian population to turn against the insurgents in their midst:

Reflections indicate the successive operations by TF81 in the Tigiran Valley have disrupted future attacks planned against the NZPRT by the threat groups involved in the 3 August 2010 attack on KT2. Reporting indicates LN support to the insurgency has been degraded as a result of TF81 operations with local dissatisfaction with CF attention and the concern that this will impact on the wider community not involved directly in the insurgency. Reporting states that those involved in or planning attacks against CF forces have been counselled by local shura to depart the area….Known insurgency commanders had been reported to be either considering fleeing current residences for the relative safety of Pakistan, urged to turn themselves in, or reconciled with GIROA [Afghan government forces.]

Yep, terrorise the local population sufficiently, and surely they’ll start making life intolerable for the militants in their midst, and kick them out. Nine years on….and the combined international forces and the Afghan military are reportedly killing more civilians than the Taliban.

Yet regardless, the insurgency continues to extend its reach. The only people being “degraded” by the collective punishment inflicted by the August 22 2010 raids were the people doing the degrading. In this case, that was us. Surely, we all have a right to know what degraded acts have been done in our name. That right takes us back to the question of the blanket of secrecy dropped over the inquiry evidence. As we can now see, what had been formerly claimed to be inaccessible on national security grounds has been found to be accessible after all, but no thanks to the NZDF.

With hindsight, we can also see that the initial claims by NZDF in 2011 that there had been no civilian casualties at all was merely an echo of the initial US inquiry, which had found “no confirmed casualties” in the sense that there was no actual footage of civilians being killed. It seems that you're not dead until the US military confirms that you're dead, and in this case, the US forces and NZDF were inclined to shoot first, and not look too closely at the outcomes. But even the Americans had decided as early as September 2010 (see page one of their inquiry) that there was evidence that the “partnered operation” had resulted in “one or more civilian casualties” sufficient to merit an inquiry. As late as 2017, the NZDF was still strongly resisting the need for such an inquiry.

Surely, if the public is to have any faith in the inquiry it is currently bankrolling, the rest of the written documentation for Operation Burnham (and all of the related video footage) has to be released. If its OK with the NZDF to lobby politicians with this footage – and thereby induce the Bill English administration not to hold any inquiry at all - it should be available to the legal teams acting for the co-authors, and for the villagers. After all, there is no operational need for secrecy, anymore. These events happened nine years ago. None of our troops are actively fighting in the field these days, inside Afghanistan. Our troops would not be endangered by a greater level of transparency.

Purely in terms of natural justice, it seems bizarrely unfair that the NZDF is feeding evidence to the inquiry heads that it is simultaneously denying to the legal teams representing the co-authors and the villagers. That is the definition of a whitewash, and whitewash jobs shouldn’t have to cost $7 million. Most New Zealanders would probably prefer to see that sort of money being spent on redressing the harm we did that night in 2010, to some of the poorest people on the planet.

Footnote: As a result of the bungled raids, air strikes and civilian casualties akin to those that characterised the Operation Burnham fiasco, the United Nations Assistance Mission in Afghanistan (UNAMA) issued the following set of recommendations in March 2011 to the international military forces. Among them:

• Explore viable alternatives to night raids and ensure that all search and seizure/night raids operations are jointly conducted with or led by Afghan National Security Forces, fully respect traditional, cultural and religious practices and comply with the forces’ international legal obligations of proportionality, distinction and precaution.’

• Improve transparency on Special Forces’ operations and publicly accept responsibility where civilian harm has occurred as a result of their actions.

• Issue a directive to ISAF and all US Forces-Afghanistan including Special Operations Forces stressing implementation of NATO non-binding guidelines on compensation and offering practical, detailed procedures for recording casualties, receiving claims, conducting investigations and offering amends in the form of compensation, apologies, condolences and other dignifying gestures….

For a coalition government that makes such a song and dance about the need to observe the rules-based international order, maybe it could begin by putting its money where its mouth is - and pay compensation to those Afghan villagers for the harm we’ve done to them.

© Scoop Media