The Defence Force will make public each occasion its soldiers are alleged to have killed civilians, as the military aims to reform itself after the damning Operation Burnham inquiry.
The inquiry last year found the Defence Force had misled ministers and the public about allegations of civilian deaths after the 2010 Special Air Service-led raid in Afghanistan, allegations which top brass failed to properly investigate. No civilians were wrongfully killed in the raid, the inquiry found.
Setting out a new civilian casualty protocol was one of four recommendations of the inquiry, which the Defence Force accepted. The protocol was publicly released on Thursday.
An expert in how militaries handle civilian harm says the protocol aspired to be transparent but “blind spots” could remain.
Defence Force director of legal services Brigadier Lisa Ferris said the protocol detailed how soldiers, from commanders on the ground to the chief of defence force, should respond to civilian casualties.
“You would like to think that reporting of serious incidents was always a function of the Defence Force, but I think what the Operation Burnham report identified is that we weren’t consistent and open with how we have captured that,” she said.
The 33-page document specifies how a soldier should first raise a possible civilian casualty with a superior officer, how reports should be investigated and assessed as either credible or non-credible, and how victims should be provided with an apology, rehabilitation, or payment to express condolence.
“If there is uncertainty as to whether or not an individual is a civilian or a combatant, the weight of that assessment has to go with the fact they're presumed to be a civilian ... They would be captured by this reporting process.”
Ferris said there was sufficient independent scrutiny of the process. Any credible reports of civilian harm would be sent to the Chief of Defence, a report would go to the Ministry of Defence, and onward to the Defence Minister.
Reports of civilian harm deemed non-credible would remain further down the chain of command, at Joint Force Headquarters in Trentham.
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The chief of defence force will produce an annual report on civilian casualties, according to the protocol. It will contain a summary of the non-credible reports, the instances of civilian harm that occurred, the cost of payments made to compensate for the harm, and an “explanation for any discrepancies in civilian harm reports”.
“It's a pretty robust and fulsome annual reporting obligation that will be made public every year,” Ferris said.
Auckland University senior lecturer Dr Thomas Gregory, who contributed to a workshop held by the Defence Force to help develop the protocol, said it appeared the Defence Force was aspiring to a higher level of transparency than seen in many other countries.
“There is still an issue here where the New Zealand Defence Forces will be responsible for investigating their own conduct,” he said.
Much would hinge on how the Defence Force deemed a report of casualty as credible, and how much detail of the non-credible claims will be made public. There were still “blind spots” in what happened during Operation Burnham, he said, and there was a risk possible civilian harm could be missed again.
“The only transparency around that is this annual report, where the [chief of defence] will summarise reports that were deemed not to be credible. Well, what’s included in that summary?"
Green Party defence spokeswoman Golriz Ghahraman said there appeared to be too much discretion within the protocol when it came to how possible civilian casualties should be reported up the hierarchy – “Which we know was the problem to begin with”.
“It leaves a lot of guesswork for people, in a situation where the whole problem is that you're already in a hierarchical institution.”
Defence Minister Peeni Henare, in a statement provided by a spokeswoman, said, “it is great the Defence Force has been able to swiftly implement the recommendation”.