Gregory & Lewis: Defence order unlikely to prevent another Operation Burnham

A Brigadier listens to testimony at the inquiry into Operation Burnham, Thornton Hotel, Wellington. Photo / Ross Giblin, Pool

OPINION:

Operation Burnham has been hugely embarrassing for the NZ Defence Force.

Although the Burnham Inquiry cleared the NZ Defence Force (NZDF) of acting unlawfully during its operation in Afghanistan, it argued that senior officials continued to claim no civilians were killed during the attack, despite having clear evidence to the contrary.

The Inquiry painted a worrying portrait of processes in the NZDF, identifying a series of institutional failings. It noted that poor record keeping meant that importance evidence was lost, only to be discovered – "essentially by chance" – during the latter stages of the hearing.

It described "a disappointing lack of commitment and rigour, both individual and collective, on the part of senior NZDF personnel". And it suggested that these failures were so severe the NZDF undermined two core constitutional principles: namely, civilian control of the military and ministerial accountability to Parliament.

The NZDF has introduced new rules in response to this criticism, but Defence Order 35 does not go far enough. It fails to outline what steps the NZDF will take to avoid civilian casualties in the first place, and the new procedures on responding to civilian harm are not robust enough to prevent another Operation Burnham.

We conducted a detailed assessment for 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.

However, the new procedures do not adequately address the systemic flaws identified by the Burnham Inquiry.

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.

To understand why this matters, it's worth recalling what went wrong with Burnham. The inquiry found that the NZDF provided inaccurate information to both ministers and the public.

The source of this information stemmed from a misleading email from the Senior National Officer in Afghanistan, who misread a vital paragraph in the incident assessment report and provided incorrect information to his superiors.

The report found that this initial mistake was compounded when senior NZDF personnel accepted the "email without question, even though there was substantial evidence contradicting it".

Even though the new rules are supposed to prevent these mistakes from happening again, there is a real risk that they will simply entrench the problem.

Thomas Gregory. Photo / Chris Wilson

Under the new procedures, it is still the Senior National Officer who would be responsible for producing the initial notification report, conducting the initial assessment to determine whether the allegation is credible, and then producing the incident report.

A lot hangs on whether the officer determines an allegation to be credible or not, and we know from the Burnham Inquiry that their judgement can be flawed.

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 that the officer in question suffered from "confirmation bias" when reading the report, arguing that he "saw what he wanted to see and discarded what he otherwise knew".

There are some additional layers of accountability that could mitigate this problem, but they are insufficient. 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 a positive step, but it is unclear what information will be included in this annual summary and whether it will be sufficient for academics and journalists to investigate these claims.

Larry Lewis. Photo / Supplied

There is also clear public interest in making this information available as soon as possible, rather than waiting for some annual announcement.

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

This is not surprising given the problems associated with Operation Burnham, but the NZDF has missed an opportunity to think about how it can reduce the pain and suffering of ordinary civilians.

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.

Rather than simply responding to the previous problem, the NZDF must think about how it can prevent this harm happening in the first place.

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

• Thomas Gregory is a senior lecturer in Politics and International Relations at the University of Auckland. Larry Lewis is the director of the Centre for Autonomy and Artificial Intelligence at the Centre for Naval Analyses in Arlington, Virginia.