Legal Beagle by Graeme Edgeler

77

A war crimes inquiry; or why Nicky Hager is wrong

On Tuesday, Nicky Hager and Jon Stephenson released Hit & Run: The New Zealand SAS in Afghanistan and the meaning of honour. The book details a 2010 raid in Afghanistan, carried out New Zealand SAS troop, with assistance from US air power. They say the attack was failure, leaving six civilian dead and 15 others wounded.

The authors make serious allegations, summarised in the book’s concluding chapter (page 110):

[The SAS] and their US allies attacked villages of civilians with helicopter gunships and SAS snipers, killing and injuring innocent people. Confident in their ability to keep everything secret, they needlessly burned and blew up home. Having messed up the first raid, they neither admitted fault nor tried to make amends, and undertook a second raid to destroy more homes. Later, having captured one of the insurgents, they beat him while he was blindfolded and bound, and transferred him to known torturers. They eliminated others with targeted killings. Knowing that international law requires breaches of human rights obligations to be reported and investigated, they did nothing. Instead they covered up and denied everything.

The war crimes and serious breaches of international and domestic law potentially committed by the SAS and its US allies include failing to distinguish between combatants and non-combatants, and the disproportionate use of force, especially the killing and wounding of civilians and attacking or bombarding dwellings that were undefended and were not military objectives; destroying the property of an adversary where that destruction was not imperatively demanded by the necessities of the conflict; failing to search and care for the wounded; and the cruel treatment and torture of a prisoner.

These aren’t just allegations of unlawful conduct by the SAS. These are allegations that individuals committed serious crimes.

I will not lay out the particular facts alleged to underlie each allegation, but one seems to be a particularly clear cut allegation (pages 79-81, footnotes omitted):

About 10 days after the first raid, the SAS launched a second raid on Naik. … An assault team, consisting entirely of SAS commandos, left the rest of the troops and headed straight to Abdullah Kalta’s house. According to one SAS member, they had not come to find Abdullah Kalta or nay of the insurgents, who were again far away. They had intelligence reporting that some families, including Abdullah Kalta’s, had started to rebuild their houses before winter arrived. … The reason for the second raid was to wreck the houses again, this time more thoroughly.

The SAS team that went to Abdullah Kalta’s house did not search. ‘They just went straight in’, they set the explosives, a warning came for everyone in the vicinity to take cover and, boom, ‘they just blew it up’. …

Asked why they did it, a SAS member replies, without hesitation, ‘It was to punish them. Yeah, just that … They went to destroy the house that were rebuilt.’ It was ‘pure revenge on the part of the [SAS] guys.’ They did it ‘just to fuck them up’. Another of the New Zealand personnel said an internal report explained that the point of the second raid was to scare the insurgents and discourage them from further attacks.

New Zealand has adopted the Rome Statute of the International Criminal Court. This treaty forms part of New Zealand domestic law. As part of the International Crimes and International Criminal Court Act, it makes a number of actions, long-recognised internationally as war crimes, express crimes under New Zealand law. A couple of these are in issue to this allegation. Section 11(2) of the Act, and Article 8(2)(b) of the Statute include the following as war crimes:

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

The maximum penalty for someone convicted of a war crime is life imprisonment.

The closing chapter of Hit & Run calls for an inquiry: (page 110)

There needs to be an independent investigation with full powers to question past and present military staff and with complete access to SAS and Defence force records.

The authors name officers, both within the SAS, and in the wider Defence force who “should all be required to appear and give evidence as part of an inquiry”, from then chief of defence LTGEN Jerry Mateparae, and others in senior leadership roles, as well as the SAS Commander, the SAS Commander in Afghanistan, and the SAS ground commander who was on the raid, listed as Captain D.

The book doesn't expressly detail the type of inquiry the authors seek, but I was able to ask Hager a question as part of the live chat held with Nicky by Fairfax journalist Henry Cooke the day after the book was published. Cooke asked Nicky a question I had submitted via twitter:

Hager replied:

The answer is no we have not. As far as I know the New Zealand Police are not the place where you take allegations of war crimes. If there ends up being an investigation into serious breaches of international law and war crimes, then that should logically be well down the track, after there has been an independent commission of inquiry into the events of the book.

This suggestion is wrong-headed. We do not need an inquiry, we need an investigation.

The Rules of Customary International Humanitarian law have been helpfully summarised by the International Committee of the Red Cross, and they provide as clear an authoritative statement of New Zealand’s obligations under customary international humanitarian law as you will find:

Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

And this is the problem with all the calls for an inquiry to date. Lots of people are saying that there appear to be war crimes. No-one appears to have appreciated what that means. It means we need an investigation into war crimes. In New Zealand, this is a job for the Police.

I think about this not only from the perspective of New Zealand legal obligation to investigate allegations of war crimes, and the right of victims of alleged war crimes to have those allegations investigated, and prosecuted, but also from the perspective of those who are alleged, even if implicitly, anonymously, or collectively, to have committed war crimes.

I experience these sorts of dichotomies quite a lot. With recent stories of schools and teachers locking disabled children in seclusion rooms, or of youth being detained in police cells, or mentally ill people being tied down in prison, my first thought is often: it could be a breach of this right, or those involved may have committed this crime; but my second thought is usually: people being investigated have rights – the presumption of innocence, the high standard of proof, the requirement to establish a guilty mind, the right to silence. At that point, knowing only what I’ve read in the news media, I usually decide not to blog about my theories of criminality. And people being investigated have the same rights whether they’re a gang member, a school teacher, a serial rapist, a prison guard or police officer or soldier, a murderer, or even a judge.

This does not come “well down the track”. We have an obligation to start now, and those who may be charged have a right to expect it to be done properly. The longer we wait, the more hazy witness recollections become; physical evidence may deteriorate; documentary evidence or videos may degrade or become harder to find; witnesses may move, and become harder to locate, or may die. There is a reason that there’s a right to be tried without undue delay – the longer between the making of an allegation, and the holding of a trial, the harder it is to ensure a fair trial.

And there’s the big one, important to not only those accused of war crimes, but also to New Zealand as a country: there is a right to have the investigation (and if appropriate, the prosecution) conducted in New Zealand. These are allegations of war crimes; allegations of offences recognised as war crimes under the Rome Statute of the International Criminal Court. If there is no war crimes investigation in New Zealand, the Prosecutor of the International Criminal Court can conduct one instead.

This does not need to wait for Government to settle terms of reference on a commission of inquiry. Waiting until one is complete may just take the matter out of our hands.

I used the words *need*, *inquiry* and *investigation* deliberately. An inquiry could be important, and useful. It could determine what happened, who was responsible, and what changes should be made to reduce the risk of it happening again. It could see who knew what and when, whether the public, of the government, or others in the Defence Force were misled and by whom.

An inquiry could advance Hager’s proposal to “reduce the influence of the SAS within the Defence Force”, (p 113) or to provide information to enable “the public and Parliament … to decide whether they want to maintain a force primarily to contribute to other countries’ wars” or whether the SAS instead of “serving secretly under US command … should be scaled down and become a specialised force within infantry troops, available to support peacekeepers overseas and other agencies at home.” (p 114)

But holding an inquiry is not enough for New Zealand to meet its obligation to investigate allegations of war crimes. Holding an inquiry, while not conducting an investigation would compound any breach of international humanitarian law. The independent commission of inquiry Hager seeks would have the power to demand documents, and summon witnesses. But Commissions of Inquiry have limited purposes. Commissions of Inquiry are not criminal investigations. From the Inquiries Act:

11 Limits to scope of power of inquiry

(1) An inquiry has no power to determine the civil, criminal, or disciplinary liability of any person.

This is a problem for an inquiry of the type so far suggested (not only by Hager, but also by other journalists, and even politicians). An inquiry cannot be allowed to interfere with a possible prosecution. The possibility that evidence heard by a commission of inquiry could be evidence that might be heard by a jury at a criminal trial (or more importantly, might be inadmissible at a criminal trial) could mean that there would need to be substantial suppression orders, lest the fairness of future criminal proceedings be threatened.

The necessity of avoiding prejudice to a trial, or even to a police investigation is recognised in the Inquiries Act, which provides that an inquiry can be suspended while the results of other investigations continue:

16 Power to postpone or temporarily suspend inquiry

(1) An inquiry may, after consultation with the appropriate Minister or appointing Minister, as the case may be, postpone or temporarily suspend the inquiry if—

(a) another investigation is being, or is likely to be, carried out into matters relating to the inquiry; and

(b) the inquiry is satisfied that to commence or continue the inquiry would be likely to prejudice—

(i) the investigation referred to in paragraph (a); or

(ii) any person interested in that investigation.

(2) The inquiry must commence or continue when it is satisfied that to do so would no longer prejudice the other investigation or any person interested in it.

Depending on the circumstances, a Commission of Inquiry can look into matters that may be related to questions of criminal liability. The Canterbury Earthquakes Royal Commission reported on the collapse of the CTV building in 2012; and a decision on whether to prosecute is still yet to be made.

But an inquiry into building codes and council practices is very different from one the purpose of which would appear to be to determine whether war crimes and other breaches of international human rights obligations have occurred. The Canterbury Earthquakes Royal Commission reported years before the criminal investigation into the CTV collapse even commenced. And there wasn’t an international prosecutor empowered to investigate if New Zealand did not.

More importantly, the allegations people are currently seeking to be investigated by a commission of inquiry, whether ultimately backed by sufficient evidence or not, are clearly allegations of war crimes. Criminal liability is not a peripheral issue. With the clear possibility of criminal charges following (whether in New Zealand, or internationally if New Zealand takes no action), any hope for an inquiry with full powers to demand the attendance of witnesses to answer questions may be forlorn.

While commissions of inquiry have broad powers to demand evidence and summons witnesses, the powers to compel answers only go so far. And people who may face criminal prosecution cannot be forced to give evidence at an inquiry about issues that may impact on possible charges they may face.

Soldiers don’t have a union as strong as the Police Association to look after their interests, but at some point, those implicated in the allegations contained in Hit & Run are going to get legal advice, and that advice will be very clear, especially for those on the ground who took part in the raids: shut up.

Earlier this week David Fisher and Nicholas Jones of the New Zealand Herald, and Eileen Goodwin of the Otago Daily Times published a story about how, in an investigation of whether National MP for Southland, Todd Barclay, had unlawfully recorded conversations, he had refused to give a statement to police. I was reminded of two things, first the incompetence of police in their last big investigation into allegation of illegal bugging, and second of the words of Robert H Jackson, the Chief US War Crimes Prosecutor at Nuremberg, who, as a Supreme Court Justice a few years later, reminded lawyers:

"Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

It doesn’t matter whether you are Teina Pora, Todd Barclay, or an SAS trooper, it remains good advice. It doesn’t matter if you are clearly guilty; guilty (but can they prove it?); or innocent. Any lawyer worth their salt will tell you to shut up. And no Commission of Inquiry will be able to compel evidence from anyone present while a prosecution remains a possibility.

I do not know whether allegations contained in Hit & Run are true, or whether the allegations, even if true enough to properly found a charge, are capable of being proved by admissible evidence beyond a reasonable doubt. But the Soldiers who were present, those who ordered them to take part, and everyone else involved at whatever level of the New Zealand Defence Force or the New Zealand Government has rights. And one of those rights is to have any allegations against them that need investigating, investigated by a competent authority, without improper pressure being placed on the investigator. They also have the right to have any decision over whether to lay a charge, decided only after a thorough investigation, and considering not only incriminating evidence, but evidence that tends to show their innocence. This is most likely to happen if any criminal investigation begins as soon as possible, and is not prejudiced by a full public inquiry.

There is nothing to stop the Government starting an inquiry. There will be some aspects of what has happened that will be able to inquired into without risking prejudice to a Police investigation, but, as is generally the case with coronial inquests, we will need to recognise that not every question of importance can be answered while questions of whether there will be criminal charges remain unanswered.

In New Zealand, such investigations are a matter for the Police, and decisions over whether to prosecute (in the High Court) are ultimately for the Solicitor-General or Crown Prosecutors. Alternatively, allegations against soldiers may be a matter for the Military Police, leading the possibility of trial at a Court Martial. Neither will have much experience investigating war crimes. In the circumstances, I think the Police are better placed in the case.

There are sometimes reasons to prefer a Court Martial. For example, if the result of the investigation is that there is insufficient evidence to file war crimes charges, but that charges under the Armed Forces Discipline Act for failure to comply with the rules of engagement could be laid against some involved, this could only be done at a Court Martial. However, that is not possible here. There is a time limit for such charges to be brought to Court Martial, and it has well passed. A Police investigation would likely involve assistance from Military Police, and Crown Lawyers in any event.

Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.

When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.

Where Police fail to investigate an alleged war crime, New Zealand has agreed, with the approval of Parliament, that the Prosecutor of the International Criminal Court can step in instead. We should not let that happen.

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