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Q+A: ActionStation National Director Marianne Elliott

Q+A: ActionStation National Director Marianne Elliott interviewed by Corin Dann

Human Rights lawyer calls for an independent inquiry into the NZ SAS raid in Baghlan, Afghanistan in 2010.

Lawyer and National Director of ActionStation Marianne Elliott who has worked for the UN in Afghanistan is not surprised by the NZ Defence Force’s admission that the 2010 raid in Baghlan involved a “suspected civilian casualty”. It comes in a response to an OIA request sent to the Human Rights Foundation of New Zealand ten days ago.

“The evidence is really mounting from a range of sources that there were suspected civilian casualties. So there’s obviously some contradiction, something going on within the Ministry of Defence,” she says.

Speaking to political editor Corin Dann on Q+A she also said that she also wasn’t surprised that the NZ Defence Force didn’t hold a copy of the investigation undertaken by a joint Afghan Ministry of Defence, Afghan Ministry of Interior and ISAF assessment team into the raid.

“Our troops deserve this inquiry. It is not fair to ask the people who experienced this or who knew about it to lie. It doesn't help them,” she said.

Please find the full transcript attached and you can watch the interview here.

Q+A, 9-10am Sundays on TVNZ 1 and one hour later on TVNZ 1 + 1. Repeated Sunday evening at 11:35pm. Streamed live atwww.tvnz.co.nz

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Q + A
Episode 3
Interviewed by CORIN DANN

CORIN Joining me now is Marianne Elliott, who has worked for the UN in Afghanistan. She’s currently the national director of ActionStation, a not-for-profit that connects people to campaign issues. Good morning to you, Marianne. Now, I just want to start with some news that has come in overnight that was sent to us. The New Zealand Defence Force has admitted there was, in fact, a suspected civilian casualty in the SAS raid in Baghlan. It comes in an Official Information Act Response that was sent to the Human Rights Foundation of New Zealand 10 days ago. Now, it also says – and this is very interesting – that the NZDF doesn’t hold a copy of the investigation undertaken by joint Afghan Ministry of Defence–ISAF assessment team that was undertaken into the raid. Now, as soon as we received this information, we did approach the New Zealand Defence Force for comment. We were told this morning the Defence Force has nothing more to add than what they have already said. All right, there’s quite a bit to unpick here. What do you make of this? This would seem to contradict what they have been telling us even this week – that they didn’t believe there were any civilian casualties.

MARIANNE It doesn’t surprise me that the Official Information Act contains this admission that there were suspected civilian casualties, because the evidence is really mounting from a range of sources that there were suspected civilian casualties. So there’s obviously some contradiction, something going on within the Ministry of Defence. But, really, there’s no surprise that that has come out in the OIA.

CORIN That is going to cause some controversy – the change in language here. I think it's pretty extraordinary the comment in here that they don't hold – and I think we should emphasise that world ‘hold’ – a copy of this inquiry report. Now, that would seem very odd.

MARIANNE That also doesn't surprise me, because I went back and looked at the UN report that was published in 2011 that covered all alleged instances of civilian casualties in 2010, and it includes a report on this instance on the 22nd of August. And it describes this joint ISAF assessment mission as having effectively failed completely. They weren’t able to get to the location of the incidents; they weren’t able to interview any victims or survivors. So what that’s describing to me is not a successful, completed ISAF assessment but a failed one.

CORIN So you don't believe we can have faith in that inquiry anyway?

MARIANNE No, I mean, there are clearly very specific problems with this assessment mission that didn’t manage to talk to anybody. On top of that, I think it’s important to note that an ISAF assessment is not the same as an independent investigation and that there are numerous instances where ISAF assessments have come to one conclusion about whether or not there were civilian casualties, and an independent investigation have come to a different.

CORIN But that inquiry included the assistance of the Afghan government.

MARIANNE Well, there does seem to be some questions about that. So that is one thing that I think an independent inquiry would need to look into.

CORIN Because surely they would want to get to the bottom of this. So, you know, shouldn’t New Zealanders have some confidence that if it’s ISAF and the Afghan government together, then they’re going to get to the bottom of this?

MARIANNE Well, it’s ISAF and the Afghan Security Forces. So this is a military assessment of a military operation. It is not the same as an independent investigation.

CORIN All right, if this Official Information Act document we’ve seen is correct – they don’t hold a copy of the inquiry – which seems extraordinary – how would a new inquiry go about finding anything out?

MARIANNE Well, very much in the same way that Jon Stephenson has gone about it. But, presumably, with also the resources of an official inquiry process and some of the powers of an official inquiry process. You would simply start from scratch.

CORIN Seven years ago? I mean, is that possible?

MARIANNE It’s absolutely possible and not uncommon at all in instances of investigation of things that have happened, you know, during conflicts, to be investigating them some time later. At the moment, the International Criminal Court is still investigating what happened in Rwanda. So it’s not uncommon to be going back sometime after the fact. 2010 is well within the era of digital documentation, so I would expect that the military fully documented this operation. And also, as we see in the book, that the Afghan people in that village were also keeping their own records of it.

CORIN There will be people watching this morning – and there have been many people this week – who have said this is the fog of war. This is what happens in war. Why are we digging this up again?

MARIANNE And they’re right – this is what happens in war. And then you take responsibility for it and you tell the truth about it. And the reason that you dig it up again and it’s really important to have an independent inquiry is, first and foremost, for the sake of the people whose lives were changed that day. And I use that language to include those Afghan civilians in that village who lost members of their families, who were injured and who – and this is no small thing – may have lost their homes and their property. But I also include in that the NZSAS soldiers who were there that day, and their lives were changed in significant ways, and they also have a right for the truth to come out and not to be required to lie

CORIN Sure. And I think New Zealanders can understand that. But what I think is maybe causing a barrier for some of them is that they see this as a politically motivated book that came out on the day John Key gave his valedictory speech, from one journalist, at least, who’s certainly had a few tussles with John Key over the years, and they can’t get past that, so they’re not seeing that.

MARIANNE Yeah. Well, I mean, I would say also that this has been a politically motivated cover-up, because it’s not in the interest of the NZSAS soldiers who were there that day to cover up what happened. It’s certainly not in the interest of the New Zealand public to cover up what happened and to tell lies about it. So this is a politically motivated cover-up. In terms of how the information came out, I think at this point the motivations of the people who did that are kind of beyond—

CORIN But we don’t have evidence that any politicians have covered this up. I mean, the politicians may have, in fact, been kept in the dark, because they may not have been given the full information.

MARIANNE That is possible.

CORIN I mean, even Nicky Hager suggests that.

MARIANNE But we do have senior Defence Force personnel who were involved in obviously making decisions about this, and they, I would say, were politically motivated.

CORIN So, what sort of inquiry – if that is what is needed – what would need to be the bottom line for a credible inquiry? A High Court judge, something like that?

MARIANNE Yeah. I mean, there’s a number of forms that a commission of inquiry could take and have credibility. But it would have to be fully independent, and it would need to have full powers of inquiry. I would suggest that because of the seriousness of the allegations here, and the clear evidence that there has been an attempt to cover them up, that it would be useful to have more than one person, so maybe a three-commissioner commission of inquiry. I also think that it could be very good for restoring public confidence if one of those was international – an international human rights or humanitarian law expert. But I also want to add it’s very important that this inquiry when it takes place has credibility with the people whose lives were most directly affected. So I think it would be appropriate for the government, if they were putting this together, to consult with the Afghan civilians who were affected.

CORIN Or they could certainly consult with the lawyers.

MARIANNE Or their lawyers, to find out what would constitute—

CORIN But what is wanted from this inquiry, though? Is it prosecutions? What are people looking for here?

MARIANNE I think that will depend what the inquiry reveals. I mean, what people want is the truth. People have asked, ‘Why are ActionStation calling for an independent inquiry into this?’ It’s because our members wanted to do that. We sent out a survey. Members of the community came back very clearly saying, ‘We don’t know what happened, and we need to know what happened. For us to have confidence in our military, to have confidence in our government, of what’s being done in our name, we just need to know.’

CORIN Coming back to the point about concerns some New Zealanders have, was it credible to suggest that this was a possible war crime, use those terms?

MARIANNE Yes. What we have described in the book— If the things that are described in the book were made out and confirmed by an independent inquiry, we have the possibility of a failure to distinguish between combatants and non-combatants before firing. And we have had this former SAS soldier who has confirmed that, in fact, at least two of these civilians were killed directly, probably, by—

CORIN But even Nicky Hager and Jon Stephenson don’t seem to be suggesting that there was any intentional desire to kill civilians.

MARIANNE You don’t have to have an intention. You have to fail to adequately distinguish between combatants and non-combatants. And that is very, very tricky territory, and I spent a lot of time in Afghanistan trying to establish whether there was reasonable grounds to assume that you were dealing with combatants. But that’s only one of the possible breaches of international humanitarian law here. Another is the failure to find and care for the wounded. Another would be any mistreatment of prisoners, obviously, is a breach of international humanitarian law. And, finally – and I think it's really important that we don't make less of this because it doesn’t involve human life – any destruction of civilian property that wasn't necessary for military purposes is a breach of international humanitarian law, which is what a war crime is. I mean, I think we use that term – it’s an extremely emotive term, and we think of the very worst end of the spectrum – but what we're talking about is was international humanitarian law breached?

CORIN Do you think New Zealand's reputation is genuinely at stake here?

MARIANNE Absolutely. I think that we have an opportunity to put that right. I think that people are right when they say that these things happen in way – they do – and if you went back and looked at that UNAMA Protection of Civilians report, you would see there were there were 440 civilian casualties documented.
CORIN But people also don’t like to think that New Zealand soldiers would be part of that, do they? I mean, there is a nationalist element to this.
MARIANNE There is an element which surprised me when I came back from Afghanistan to discover that people in New Zealand seemed to think that we could be part of, you know, a military effort—
CORIN Well, everything we’re told is that our SAS are highly trained, you know, honourable people. What reason have we got to not believe that?
MARIANNE You can be a highly trained, honourable person and make an error of judgement. You can be a highly trained, honourable person and act on bad intelligence. You know, I think that the idea that you can be involved in a war like this and be utterly exempt from ever making errors of judgement or mistakes that have tragic outcomes is, you know—
CORIN So you don't see this as an attack on our troops?
MARIANNE Not at all. I mean, in fact, I wrote a book that was about my experience of being involved in a situation where civilians were killed. I wrote about the very severe emotional impact that had on me and the importance of being able to work through that. Since that book was published, I have been repeatedly approached by New Zealanders who served in our military in Afghanistan who have said to me, ‘Thank you for your book. I related to your feelings. It helped me process some of them.’ And so I actually feel very strongly that our troops deserve this inquiry. It is not fair to ask the people who experienced this or who knew about it to lie. It doesn't help them.
CORIN Marianne Elliott, thank you very much for you time this morning on Q+A.

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