NZDF order won’t stop Op Burnham repeat

Operation Burnham has been embarrassing for the NZ Defence Force (NZDF). Although the Burnham Inquiry cleared the NZDF of acting unlawfully in Afghanistan, it argued senior officials continued to claim no civilians were killed in the attack, despite clear evidence to the contrary. The inquiry painted a worrying portrait of processes in the NZDF, identifying a series of institutional failings.

It described “a disappointing lack of commitment and rigour on the part of senior NZDF personnel”. And it suggested these failures were so severe the NZDF undermined civilian control of the military, and ministerial accountability to Parliament.

The NZDF has introduced new rules in response, but Defence Order 35 does not go far enough. It fails to outline steps the

NZDF will take to avoid civilian casualties, and new procedures to respond to civilian harm are not robust enough to prevent another Operation Burnham.

We conducted a detailed assessment for the website Just Security and wanted to highlight the key findings.

The new rules are supposed to institutionalise a more consistent and transparent approach by introducing clearer procedures and centralising responsibility for reporting.

There is now an eight-step process, beginning with incident awareness, before moving to an initial notification report, assessment and investigation. The final three steps involve sharing findings, making amends and archiving the reports.

Even though the new rules have standardised some of the processes and centralised some of the responsibility, there is still too much room for error, because so much hinges on the initial assessment.

The Burnham inquiry found the NZDF provided inaccurate information to ministers and the public, stemming from a misleading email from the Senior National Officer in Afghanistan, who misread a vital paragraph in the incident assessment report, provided incorrect information to superiors, compounded when senior NZDF personnel accepted the “email without question, even though there was substantial evidence contradicting it”.

There is a real risk the new rules will entrench the problem.

It will still be the Senior National Officer responsible for producing the initial notification report, conducting the initial assessment to determine whether the allegation is credible, and producing the incident report. A lot hangs on whether the officer determines an allegation to be credible or not.

Assigning this much responsibility to one officer is problematic for other reasons, not least because they are too close to the events they are meant to assess. The inquiry concluded the officer suffered from “confirmation bias” reading the report, and “saw what he wanted to see and discarded what he knew”.

Responsibility for collating these reports has been centralised within the Strategic Commitments and Engagements Branch, but it is unclear whether NZDF intends to create a specialist team to deal with what is a highly specialist task.

The Chief of Defence Force is also required to provide an annual update on allegations of civilian harm, including incidents determined not to be credible. This is positive, but it is unclear what will be included and whether it will be sufficient for academics and journalists to investigate these claims. There is also clear public interest in making this information available as soon as possible rather than some annual announcement.

Crucially, the new rules contain nothing on preventing civilian casualties.

Aside from the obvious costs in human lives, this omission also leaves us dangerously out of step with coalition partners, who have introduced specific measures designed to reduce civilian harm.

The new rules are a useful first draft, but the NZDF needs to go back to the drawing board if it wants to prevent history repeating itself.