The Nation: Lisa Owen interviews Deborah Manning
On The Nation: Lisa Owen interviews Deborah
A group of lawyers including Roger Harrison QC says the New Zealand Government is obliged under international law to hold an inquiry into a 2010 SAS raid in Afghanistan. Lawyer Deborah Manning told The Nation that if an inquiry isn’t held “there are possibly legal options that can be taken and would be taken on behalf of the villagers” in New Zealand courts.
Deborah Manning says as well as looking at the events of the raid, any inquiry should look at events following it, including why there wasn’t an investigation at the time.
Lisa Owen: The government is under increasing pressure to hold a full inquiry into a 2010 SAS raid in Afghanistan, after the release of a book by Nicky Hager and Jon Stephenson and subsequent comments from the defence minister at the time, Wayne Mapp. Prime Minister Bill English says there’s nothing new, and the defence force is doubling down on statements that no civilians were killed. But a group of lawyers say there’s mounting evidence that’s wrong. One of them is Deborah Manning, and she joins me now. Good morning. Why are you getting involved in this?
Deborah Manning: Because the villagers asked for help, and we’ve agreed to help them.
And what have they said to you so far?
They’ve said that on that terrible night, they woke up, and by the end of the night, six of their dearest ones were dead and 15 were seriously injured.
So, what is the first step in what you’re doing — the first thing that you need to achieve?
Stage one is really to find out what happened. And so yesterday morning we wrote, on behalf of the villagers, to the relevant ministers, the attorney general and the prime minister, to let them know that we are acting for the 21 villagers and that we will be formally seeking an inquiry into what happened.
Why do you need that?
Why do we need an inquiry?
Well, international law says— human rights law says that when there has been a death that a state is responsible for or when grave rights have been breached — fundamental human rights have been breached — there must be an independent investigation, an inquiry.
So, what makes you think that the government will do this? Because Bill English has said more than once that there’s nothing new in this, and the defence force is standing by its assertions that there are no civilians that have died, so what makes you think you’ll get that? Why would the government do it, given their position?
Well, in our view, this is a legal issue, and the law says there must be an investigation, an independent investigation, an inquiry, into what happened.
Why? Because two things exist — there is a death that the state’s involved in—
Because there are serious allegations and information to show that the SAS were involved in actions that lead to the deaths of civilians and destruction of property at the very least. So, under law, when there has been the right to life breached, there needs to be an independent investigation as stage one, and then stage two, we look at possible accountability and so on. So, at the moment, there’s no clarity about what happened. No one has ever been to speak to the villagers. No one’s been to the village. And so the villagers are saying they want an investigation into what happened, because they know what happened; they know that they ended up dead, injured, and they’re disabled and traumatised to this day. And yet, people have been saying that no civilians died, but they know that they did.
When you say no one’s been there, you mean no one official, because obviously, Jon Stephenson has interviewed villagers—
No one official, yeah.
Yeah, because the defence force in particular keeps referring to a report by the International Security Force that’s lead by NATO in Afghanistan at the time, and they say that that report confirmed there were no issues with the raid, so how do you explain that away?
I’m not sure that it does say that, actually. Their press release says that there could have been civilian casualties. And actually, it’s important to understand what the ISAF is, and this is not an independent investigative body; this is a body that’s made up, in part, of Afghan forces, and they were also on that raid. And ISAF doesn’t hold itself out in terms of holding full independent inquiries. There is an expectation that relevant governments will investigate their own forces. So it’s a cop-out. You can’t say ISAF has done it, because they haven’t done it. And more to the point, they didn’t even go to the village or speak to the villagers.
So you think that that report is inconclusive at the very best?
At the very best, it’s wholly inadequate. And in fact, ISAF reports have been roundly criticised and condemned by the human rights community, including Amnesty International, so no. And it doesn’t fulfil New Zealand’s obligations to investigate the actions of its forces in this raid.
So, if the government doesn’t provide you with this inquiry, which would require the Cabinet to agree that they’re going ahead with a formal inquiry, if they didn’t do that of their own accord, do you think you can force their hand legally to hold an inquiry?
Well, in our view, where there’s a right, there’s a remedy. And so these villagers, New Zealand has the right to have these serious human rights violations — alleged violations — investigated. And so our view is if the law says it must happen, then it must happen. And so at the moment, we’ve written to the executive. We’ve written to the relevant ministers to say this is what we’re seeking. They are going to make a decision, and we need to let them do that, and then we need to see what they say. But our view is that there would be a role for our courts to look into this matter.
So you’re saying if they don’t rubber-stamp an inquiry or they just ignore you and don’t make any decision at all, that you think you can go to the court to get an inquiry. So what would that be — a judicial review? Or how would that work?
Yeah. I mean, I have to be careful at this stage because we don’t want to run ahead of ourselves and we have to keep to stage one. So we’re talking about what happens if an inquiry doesn’t occur. And in our view, yes, there are possibly legal options that can be taken and would be taken on behalf of the villagers.
In a New Zealand court, to be clear?
In a New Zealand court.
Okay. What elements of this raid, specifically, do you think need to be looked at? Is there a particular time frame or events?
We think that the whole raid needs to be looked at. So, when you’re investigating a situation like this, it’s not just about what happened on the night, but it’s about the planning — what went into the planning of this raid. We’ve heard about intelligence reports being unreliable. We need to be able to see what they said as well as the events following the raid. Why wasn’t there an investigation? So, we need to have all of the facts there, put them on the table, and then we can figure out what’s stage two.
So, that’s the raids. One of your colleagues talked about the alleged cover-up. That is another element that you feel needs to be investigated. What specifically?
Well, that relates to the duty to investigate. And so, if the state hasn’t investigated, we need to look at the breach of that right as well. And so if the state hasn’t investigated and they have an obligation to, then we need to look at that.
And the continued statements that there are no civilian deaths, given that the former Defence Minister has come forward, do you believe that’s part of the picture as well? That needs to be looked at?
Yeah. So, it’s, what, almost seven years on now. How can you be sure that all the essential evidence still exists?
Well, it’s obviously critical that all evidence is preserved. So I’m sure that our defence forces are preserving evidence about this. And there’s plenty—
But it wasn’t just our defence force, was it? Because Americans were in the choppers, and it was American—
Yes, but we’re in charge of the raid. We’re in charge. It’s under our command. And we’re in the terrain of modern warfare; there’s a lot of technology. And so our expectation is that information and that evidence will still be there.
Are you specifically asking them to preserve that evidence, given that you’re now wanting this inquiry?
Yes, we will be requesting that.
Okay. So, if this government doesn’t want a bar of it, you’ve got this option, you say, to go for a judicial review. But do you think a different government would be more receptive? Because we do have an election coming up, is it a waiting game?
In our view, no. I mean, we are lawyers, and we must act on our client’s instructions, which is to seek an investigation and our inquiry. So we will put that to the relevant ministers — well, we’ve already indicated that to them — we’ll let them make a decision, and then we’ll take it step by step.
So, let’s go forward a bit. You get an inquiry, we’ll say for the purposes of this discussion, then what? You get some findings. What happens after that? What is the purpose of gathering that information?
So, several things could happen, including recommendations in terms of what do we need to do to make sure this doesn’t happen again. And it is possible that there could be prosecutions. But we’re too early to know any of that. And the priority, and the focus, is to try and ascertain what happened to the villagers of Khak Khuday Dad and Naik.
But the end goal, presumably, is to consider whether there is a need for accountability, and someone specifically to be held accountable, and then compensation or reparation or apology or something along those lines — two planks to it.
That’s a possibility, but again, that’s in stage two.
So, in terms of that, do you know — do you know — who might be held accountable? Do you know who specifically you might be looking at?
Okay. So even if someone is not found to have acted intentionally, if it’s an accident, do you still feel that there is that avenue of accountability and potentially reparations, if it’s an accident?
Yes. Well, it’s irrelevant if it’s— I mean, look. We—
Because those are the possibilities.
Civilians have died. Many have been injured in a SAS raid. So we need to look at what happened on that raid. We need to look at what happened. And then we can make decisions about what happens next. So it’s really quite impossible to speculate too far further than that. Yeah. The aim of this is to get justice for these villagers, for them to have it recognised what happened to them, and then to make some decisions about where to from there. But also, there are obligations on the state once it investigates to consider what its responsibilities are under our law, which is about preventing human rights violations.
All right, we’ll leave it there. Deborah Manning, thanks for joining us this morning.
Transcript provided by Able. www.able.co.nz