13 Mar 2019

New legal action taken against 'Hit and Run' inquiry

2:39 pm on 13 March 2019

The lawyer representing the Afghan villagers in the inquiry into Operation Burnham has launched legal proceedings calling for a judicial review in the investigation.

Watch lawyer Deborah Manning speaking to media on the latest developments:

The inquiry was in response to allegations that members of the Defence Force killed six Afghan civilians during a military operation in 2010, then covered it up. The allegations were made in the book Hit & Run, by the journalists Nicky Hager and Jon Stephenson. The Defence Force disputes the claims saying secret drone footage disproves them.

The inquiry is hearing much of the evidence in secret. Chairs Sir Terence Arnold and Sir Geoffrey Palmer said all witnesses' evidence would be taken in closed hearings and much of the evidence would not be made public for safety reasons.

Deborah Manning, a human rights lawyer for some of the Afghan villagers at the centre of the claims, said last year her clients had been calling for the inquiry for a long time and had the right to hear what had happened.

Ms Manning filed legal papers in the High Court in Wellington today.

"To date, we do not consider the inquiry has satisfactorily met New Zealand's right to life obligations," Ms Manning said.

She said she wanted it to be clear that the inquiry should be fulfilling New Zealand's right to life obligations towards the civilians who died in the operation.

Investigative journalists Nicky Hager and Jon Stephenson have released a book, 'Hit & Run', about the New Zealand SAS in Afghanistan.

The book, 'Hit and Run'. Photo: RNZ / Hans Weston

"The right to life investigation should be triggered by the state, it should not be for the victims to be knocking on doors and having doors closed and knocking on new doors over and over again to try and get access to justice. This has been too long and too hard and it should not be allowed to happen again."

She said this was sending a clear message to the state that it had an obligation to conduct a right to life investigation.

"We notified them and asked them to act on it two years ago, they failed. We took them to court, we thought they were going to do it, they've failed again."

Ms Manning compared the case to another in Ireland where a right to life inquiry was held after people allegedly involved with the Irish Republican Army were killed. In those cases, Ms Manning's colleagues have told her no information was withheld in inquiries, she said.

"In that context, there's very clear rulings that the families, the next of kin, have the right to know who was responsible for the deaths of their loved ones, to know their names and to be there to hear what they have to say.

"This is New Zealand's first time having to be accountable for civilian deaths during a military operation. So this is our first opportunity to do this ... we [thought we] would be following in the footsteps of other jurisdictions, however, we've taken a very different approach which we say doesn't meet minimum human rights standards."

Among the book's claims is that a 3-year-old girl, Fatima, was killed during Operation Burnham. Ms Manning said the girl should a key focus in the inquiry.

Lawyer Deborah Manning speaking about the inquiry during a press conference this afternoon.

Lawyer Deborah Manning speaking about the inquiry during a press conference this afternoon. Photo: RNZ/Claire Eastham-Farrelly

"The best way that I understand this case, this inquiry, is to keep the focus on the little girl who died during Operation Burnham, because there can be no question she couldn't have been an enemy combatant or insurgent.

"To date, Fatima's death has never been acknowledged, her name has never been spoken, so at the present time we have no confidence that at the end of this inquiry there will be any explanation as to why or how Fatima died."

The families of the civilians involved should not be kept on the sidelines awaiting a final report, she said.

"We thought that this was the inquiry we had been seeking in term of the events of Operation Burnham.

"We have been, I think it's fair to say, confused and concerned and now we're at the point where we can't continue to engage in a meaningful way because we're not part of this process, that's how it seems."

She said they have asked Attorney-General Daivd Parker to make it clear in the inquiry's terms of reference that a key function is to fulfill the right to life obligation.

"It's not too much to ask in our view.

"There clearly needs to be a procedure created by the New Zealand state for automatic right to life investigations for civilians killed during any NZDF operations."

This afternoon the inquiry will be publishing various memos and correspondence that have been sent by the non-Crown core participants, outlining their concerns about the process.

The argument for classified information

The Defence Force has been arguing in the inquiry that some information and hearings had to be held in secret due to classified information.

Hager had previously said the decision to run the process largely in secret was hugely disappointing.

"This is an inquiry that was called for by the public, granted by the current government because the public felt so strongly, and now it's been turned into a closed-shop, where the public will only get token briefings on peripheral, irrelevant issues," Hager said.

The lawyer assisting the inquiry, Kristy McDonald QC, said the inquiry submissions showed government agencies involved were worried the process could compromise New Zealand's security and international relations if classified information was made publicly available, and wanted a largely closed process.

Author Nicky Hager listening to Kristy McDonald QC during her submissions at the Operation Burham Inquiry at the High Court in Wellington.

Author Nicky Hager listening to Kristy McDonald QC during her submissions at the Operation Burham Inquiry at the High Court in Wellington. Photo: Pool / NZ Herald / Mark Mitchell

Ms Manning said the focus of the inquiry should be to get to truth of what happened and that other important procedural matters would follow, including right to access of information and its disclosure.

"This inquiry has skewed, and the skewing is that - we say that the victims of Operation Burnham are our clients [the villagers].

"However, the way this inquiry has been operating is that the NZDF are the victims - they're the victims of allegations that have been made in the book and that they need to be able to defend themselves and their public reputation against those allegations."

The legal team's experience with classified information was not new, she said, and it should be kept a bare minimum.

Ms Manning said she accepted that there was information that needed protective measures, however, there were proper procedures that could identify which information should be held back and to what extent.

"We're not even adopting those measures, which are actually very controversial measures. Instead, what's happening is that the starting point is a closed process rather than an open process with some closed aspects."

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