Further information on “Operation Burnham” – McLeod and Associates

29 March 2017

Rt. Hon. Bill English
Prime Minister
Parliament Buildings
Wellington 6160
New Zealand
b.english@ministers.govt.nz
BY FAX: (04) 817 6501

Hon. Christopher Finlayson QC
Attorney-General
Parliament Buildings
Wellington 6160
New Zealand
c.finlayson@ministers.govt.nz
BY FAX: (04) 817 6508

Re:

Further information concerning allegations of breaches of domestic and international law in Afghanistan by New Zealand Defence Forces – “Operation Burnham”

Dear Sirs,

1. We refer to our correspondence of 24 and 28 March 2017. As promised in our letter of yesterday, we now provide information relevant to our clients’ request for a formal inquiry.

2. We refer to the New Zealand Defence Force (“NZDF”) media release of 26 March 2017 and the NZDF media conference held on 27 March 2017. In both the media release and media conference, the Chief of Defence Lieutenant General Tim Keating has referred to an untitled map of the Operation Burnham Area of Operation (“the NZDF map”) (attached). We note that the NZDF has not identified the provenance of this map.

3. On the NZDF map, the author has labelled three villages: Khak Khuday Dad, Naik Village and “Tirgiran Village”. The NZDF has stated that Operation Burnham took place in “Tirgiran Village”, which it claims is located 2+ kilometres south of the villages of Naik and Khak Khuday Dad. The NZDF map identifies “Objective 1” and “Objective 2” beside “Tirgiran Village” further south within the “Operation Burnham – Area of Operation”, as outlined by a red rectangular box. It is being consistently claimed that “NZDF personnel have never operated” in the villages of Naik and Khak Khuday Dad.

4. We have provided the NZDF map to our clients, together with the NZDF media release of 26 March 2017. Our clients are locals and residents of this area, and of coursethey know the names of the villages in which they live. We are instructed (in summary) as follows:
(i) Tirgiran is not a village, and therefore “Tirgiran Village” does not exist. As explained below, Tirgiran is a valley area;
(ii) Naik and Khak Khuday Dad villages are in fact located within the red retangular box in the NZDF map. The identified Objectives 1 and 2 are located in Naik village;
(iii) The most northern village (incorrectly named Khak Khuday Dad in the NZDF map) is in fact a village named Khakandy.
(iv) The north-western village (incorrectly named Naik Village in the NZDF map) is in fact a village named Beidak.

5. As above, our clients maintain that there is no village named “Tirgiran Village” as depicted in the NZDF map and referred to by Lt Gen Keating. Tirgiran is the name of the river valley and the greater area depicted on the NZDF map, and both the Naik and Khak Khuday Dad villages are located within Tirgiran Valley. To be completely clear, there is no separate settlement of any kind named “Tirgiran Village”, anywhere in the Tirgiran Valley.

6. We are also instructed there are many settlements or villages in the Tirgiran Valley, including our clients’ villages. For the NZDF to claim that an operation occurred in “Tirgiran Village” is akin (in New Zealand terms) to claiming that an operation took place in “Otago city”, “Waikato town” or “Waitakere village”. It is plainly wrong to conflate an area into a village as the NZDF has done in this case.

7. Further, our clients confirm that their villages are in fact located within the area labelled “Operation Burnham – Area of Operation” on the NZDF map. In particular, “Objective 1” and “Objective 2” on the NZDF map correspond to the locations of two houses in Naik which were owned by those targeted in the 22 August 2010 raids.

8. To summarise, the NZDF map relied on by the NZDF in its recent media release and media conference concerning “Operation Burnham – Area of Operation” labels three villages. One of those villages does not exist while the other two have been incorrectly named and mis-identified by the NZDF as our clients’ villages. It is unclear to us whether the creation of this flawed document has been the result of misunderstanding, error or otherwise. However, it is plainly incorrect and unreliable. It must follow that so too are the conclusions which the NZDF seeks to draw from this map, namely that they have never operated in our clients’ villages. Indeed on our instructions, the latest NZDF statements are effectively an admission that they did so.

9. We reiterate that the villages of Naik and Khak Khuday Dad were raided by international forces on 22 August 2010, and that six civilians – non-combatants – were killed and fifteen were seriously injured. Our clients therefore stand by their claim that no other military operations took place in the area on that date (or indeed on any other date around that time). It follows that it is clear, for all of the reasons set out in our 2correspondence of 28 March 2017, that the NZDF’s Operation Burnham took place in our clients’ villages of Naik and Khak Khuday Dad.

10. The flawed NZDF map and its derived conclusions therefore reinforce our view that it is untenable for the NZDF to assert that Operation Burnham was a separate operation on the night of 22 August 2010 to the military operation that was carried out that same night in our clients’ villages – or indeed that no NZDF military operations occurred in relation to our clients’ villages.

11. For the sake of our clients and the New Zealand public, it is imperative that the truth of what happened during the military operation of 22 August 2010 in Tirgiran be established. Allegations of serious human rights violations have been made against the NZDF Operation Burnham. These must be addressed now and at the outset by way of a formal inquiry as outlined in our letter of yesterday.

12. As per our recent correspondence, we therefore repeat our request for an independent and full inquiry to commence into Operation Burnham.

13. We await your response.
Yours sincerely
McLEOD & ASSOCIATES
RICHARD McLEOD
richard@mcleod.law.co.nz

Cc:
Hon. Gerry Brownlee
Minister of Defence
Parliament Buildings
Wellington 6160
New Zealand
g.brownlee@ministers.govt.nz
BY FAX: (04) 817 6502

Cc:
Wayne Eagleson
Prime Minister’s Chief of Staff
Parliament Buildings
Wellington 6160
New Zealand
wayne.eagleson@parliament.govt.nz