The book co-authored by Nicky Hager and Jon Stephenson, “Hit and Run”, contains allegations that some people have said could amount to war crimes.
Why does it matter? Horrible things happen in war, so let’s just get over it. Right?
Well, no. There are rules around armed conflict that we, as a state, have agreed to be bound by. These rules provide the parameters within which, for example, we can legally kill someone, how we treat prisoners of war, and the type of weapons that we can use.
The technical term for these rules is “international humanitarian law”. This may seem confusing at first, and also paradoxical, in that there is surely nothing “humanitarian” about war at all?
But, in truth, the law of armed conflict attempts to bring an element of humanity back into war. At its core, it is about ensuring a humanitarian ethos in conflict.
The high point in setting these rules was the 1949 Geneva Conventions (there are four of them, along with three additional protocols). Arising out of the horrors of the Second World War, these Conventions were supposed to avoid the mistakes of that conflict by setting clear rules around the conducting of hostilities.
There is a strong incentive for the parties to an armed conflict to respect these rules. As soon as one of the parties fails to comply, then the other parties are likely to follow suit. This results, of course, in less protection for your own people involved in the conflict. Of course, some groups do not care about that (such as armed non-state actors like ISIS), but normally states will have this direct incentive to ensure compliance to be able to demand the same treatment of their own citizens.
Beyond this direct incentive, there is an undeniable moral element to compliance with the rules of armed conflict. If a country wants to hold itself out as a moral example to others on the international stage, then compliance with these rules is a bare minimum.
Therefore, compliance with these rules is absolutely critical. It is essential to how we, as a country, act internationally as humanely as possible in a context that actually speaks to the worst of humanity.
The core feature of international humanitarian law is the principle of distinction. The International Committee of the Red Cross (ICRC), which is responsible for monitoring compliance with international humanitarian law, describes this principle as being:
The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.
In very basic terms, then, you can kill a soldier, but not a civilian.
So fundamental is this rule that the International Court of Justice has held that the principle of distinction was one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law” (Nuclear Weapons Advisory Opinion – as quoted by ICRC).
A “war crime”, then, is a grave (or serious) breach of international humanitarian law (as per the Geneva Conventions and the Rome Statute for the International Criminal Court). Specifically, under the Geneva Conventions, this includes wilful killing and destruction of property “not justified by military necessity and carried out unlawfully and wantonly”.
It is for this reason that some people have said the allegations in the book could amount to a war crime. The killing of the civilians is clearly not allowed by international humanitarian law and, on the face of it, the allegations in the book would amount to a breach.
There are also other allegations in the book. These include that the wounded were not taken care of, that an insurgent was tortured, the wilful destruction of property – all of which would be additional breaches of international humanitarian law. Potentially, there could be a further question around whether the alleged attacks could amount to a reprisal against a civilian population, which is also forbidden.
Also relevant, perhaps, is whether the New Zealand troops could be said to be part of an occupying force in Afghanistan. As an occupier, you have certain additional duties to protect the occupied population.
Clearly, then, there are a number of legal issues that could potentially arise out of what is alleged to have happened. These issues, including the question of whether the NZ troops aided and abetted any other members of the ISAF force in committing any war crime, must be determined.
Of course, things in war are not so black and white. War is complex, and especially in Afghanistan, where one insurgent (be it Taliban, Hesbi-e-Islami, or Al Qaeda) looks the same as a civilian. It is an extraordinarily complex theatre of war that our troops were operating in.
It might be that the New Zealand troops did everything they could under these difficult circumstances.
The point right now is that we have no way of knowing that. Now that these allegations have been raised in the open, there must be an equally open and transparent investigation into whether they can be established and whether there are any legal consequences that necessarily flow.
The military should welcome such an investigation. The military needs to constantly hold itself to the highest of standards in what are the most difficult of circumstances. From this point on, the military should simply accept this and seek to recover the faith of the New Zealand public into how our military conducts itself.
The alternative is unthinkable. The alternative is a New Zealand that does not care, that does not believe in acting morally, and refuses to uphold the principles that we are supposed to fight for.