Post-Cabinet Press Conference: Monday, 3 April 2017

You said you reviewed the video of the operation. Would you make or have you asked for that video to be made public?

Well, the video is classified, and so no, it won’t be made public.

But the CDF said last week he was looking into that. Would you like them to find a way to ask for it to be unclassified? Wouldn't that help clear things—

Well, I won’t be making that request. I mean, it’s a classified video. It would—you know, it's under the coalition forces that that classification exists.

And you watched this video, and after watching it were you completely clear that they've done nothing wrong? It was that compelling?

Yes, it confirmed particularly the extensive steps that the CDF has outlined—that the forces took to ensure that there would be no possibility of civilian casualties or destruction of property?

Does it show people being shot?

Well, 'm not going to comment on the content of the video. All I can say is it confirms what the CDF has outlined publicly last week and in his letter that every step was taken by the forces involved to ensure that there was minimal opportunity—no opportunity for civilian casualties or destruction of property.

Is ita video of, well, insurgents being shot?

Well, the—I mean, as the CDF has outlined—again, I'm not going to discuss the content of it.

Why not? If we're not going to see it, then you can describe it, can’t you?

Well, it's a video of the operation as seen from a number of different perspectives.

Isnt the issue still murky, though, about who was killed, if they were civilians, how many it may have been? That hasn't been cleared up.

Well, there’s been—right from the ISAF investigation there's been an acknowledgment that it’s possible civilians were killed. There appears to have been no evidence since that that’s what actually happened. There's been an acknowledgment of the way in which that might have occurred, and the CDF’s investigation into it doesn’t turn up any new or different evidence with respect to those conclusions.

But we don’t know if it was maybe New Zealand troops who may have killed civilians. That's still not known.

Well, the description of the action that’s, you know, at the centre of this more recent discussion, not the—the book’s allegations are wide ranging and fundamentally flawed, but the description of the action given by the CDF last week remains the key set of events and they demonstrate, as he pointed out last week, that there is the possibility civilians were killed by coalition forces. There’s no evidence that that's actually what happened, and the evidence confirms that every step was taken, consistent with the rules of engagement. In fact, in viewing this, I have to say I was impressed by the restraint, the care, and the sort of repetitive reassurance that the action was being conducted in a way that would minimise any civilian casualties and even avoid the destruction of property.

How long was this video and was it taken from the gunships or what angle is it taken from, and were the insurgents—were they carrying arms? Could you see that?

Well, again, I'm not going to comment in detail on the content of it. I mean, the relevance of it is according to, first, the allegations in the book, which, you know, will lead you to all sorts of things; they're not confirmed by the video. And it shows the care—the extent to which the coalition forces went to minimise any possibility of civilian casualties. You know, it's a compilation of a number of different points of view.

Is there any of this video being taken from the SAS themselves, or is it all from helicopters?

Well, it's as the CDF described it.

If this video clears the Defence Force, why not release it to the public?

Well, it's a classified video. We're not going to go into a process where, you know, all actions of the New Zealand defence forces around the world are available for public viewing. The CDF has viewed it. His senior legal officer, who is an officer of the court, have scrutinised it in the context of the legislation that applies when allegations of war crimes or misconduct are made. And I trust the process, and the view that I had of it confirms what the CDF outlined last week and outlines in his letter.

Are you, effectively, asking the public to trust you, trust the defence forces?

Well, there's a legal process involved here. It's not just a matter of opinion. I've seen the CDF’s process. I've seen the material he’s made public plus a small amount of classified material, and I've become more convinced that the conclusion he’s come to is right, and that is that our troops acted consistent with their rules of engagement.

Have you had any evidence or spoken to anyone outside of the Defence Force?

No, I haven't.

Why not check with someone else?

Well, the people who wrote the book did extensive interviews, provided maps, most of which have turned out to be wrong.

Isn't that a problem, though, that in this case the defence has, effectively, investigated itself so really, putting the book and the authors aside, and that's deemed evidence, or that’s what you're relying on at the moment?

Well, there's been a number of investigations, the first being by the coalition forces and the Afghan Government, and, remember, that investigation arose out of allegations of civilian casualties. The conclusions they came to have been confirmed by this more recent investigation. I think you can be reassured that the CDF would take this seriously. He's working alongside an officer of the court and the Defence Force chief legal adviser. He's got statutory obligations about coming to conclusions about these allegations. Everything I have seen confirms that conclusion.

But the ISAF-Afghan report was, again, carried out by people or forces who were involved in the operation itself and the CDF confirmed that no one actually got to the village. So even that investigation didn’t actually go to the place where it was, and so no one, to this point, has investigated that wasn’t involved in that operation—in the initial operation.

Look, the process is absolutely clear—you know, the legal process with the CDF.

So looking at the original report, the ISAF executive summary, the CDF’s process—I’ve had the opportunity to view the video of the events, as has the CDF and his legal advisers and the ISAF forces.

But there hasn’t been any opportunity for any independent scrutiny of this. All of the information is coming from people who were involved.

Yeah, well, I trust the facts as they are presented—presented on the video, presented through the various structures that the Defence Force have, independent of the actual operation.

When there are complaints about the police you get an independent police complaints process going on. Why should the defence be any different?

Well, the CDF is independent. He wasn’t involved in the operation. He has access to video of the actual operation itself, along with all the planning that went into it, the review afterwards by ISAF and, you know, we trust that process. I think the CDF would know that if there was any evidence that the defence forces were covering up or excluding information, that would be extremely serious.

How can you say the CDF is independent when he’s the head of the Defence Force?

He wasn’t involved in the operation—that’s my point.

But he’s part of the Defence Force, is more to the point.

Yes, he is.

He can’t be independent.

Look, the CDF, as I've said, has serious legal obligations around investigating war crimes. If there was any evidence that the defence forces were covering up or excluding information or not telling the civilian Government the full story, that would be an extremely serious matter. There is no evidence that that is the case. The facts in contention here, or the facts that have been discussed, have been outlined publicly by the CDF.

They're not complicated.

So in future should the Police Commissioner conduct inquiries into the police?

Well, they often do. They often do look into—

And that could be independent? You wouldn't need an authority that's separate?

Sorry?

You wouldnt need the police conduct authority, then?

Well, look, that's a matter of the structure that’s appropriate for the police. What we're talking about here is the operations of New Zealand troops overseas in pretty difficult circumstances with a paper and a visual record of what happened. The facts of what happened have been outlined publicly and in detail by the CDF, so there's not really any contest over the facts other than in the book, which has got most of them wrong. And with respect to those facts, when you line up the original report, the CDF’s investigation, the video material that I've seen, I'm satisfied that we can trust the Defence Force process and trust the Chief of Defence Force.

The authors of the book, obviously, spoke to some SAS members that have concerns. Has there been any attempt to kind of reach out to those people in the SAS that have concerns about this operation, and hear their side of the story as well?

Well, if any of those people are willing to come forward with evidence, then the CDF would be obliged, by law, to take it into account, whether he, you know, likes it or not. So they're in a strong position to be able to bring forward evidence they may have that disputes the conclusion he’s come to.

Was there any consideration given to getting the Solicitor-General to give an independent look at this so that we could have legal advice independent of that given by the Defence Force?

Well, the CDF is subject to military law, particular statutes, and has available to him an officer of the court who's the Chief of Defence Force’s legal adviser. You'd have to ask him what consideration he gave to, you know, external or other legal advice. But at the core of this is a well-understood set of events over which—putting aside the allegations in the book, a well-understood set of events over which there’s no real dispute about the facts of the matter: the misdirected fire from the helicopter and, as I said, the CDF has demonstrated that New Zealand troops, at all times, behaved consistent with the rules of engagement. There's no evidence of misconduct, and certainly no evidence of war crimes. I've seen the range of that material, and I think he’s come to the right conclusion.

Wayne Mapp has described this previously—he admitted, previously describing it as “a fiasco”. Having looked at the facts, you disagree with that?

Well, as I understand it, Mr Mapp based his views on a documentary screened a number of years ago by at least one of the authors of the current book. I deal with the facts as they're presented to me by the defence forces in the video, and in that respect he’s wrong.

Does the video have audio? Did you hear what the helicopter pilots were saying, and did they even mention civilians—ever think that: “Hey, this misfire could have hit some civilians.”?

Well, I've—again, I'm not going to go into the details of the video, but it simply confirms what the CDF outlined publicly last week—what was outlined in the ISAF report, which is now some 7 years ago—that the troops involved followed the rules of engagement. And from my point of view, I have to say they were extremely careful in their attempts to ensure that there would be minimal opportunity for civilian casualties, and avoiding the destruction of property.

So New Zealand troops obeyed the laws of engagement, but what about the rest of the troops that were on that mission with us?

All the evidence is that coalition troops followed the rules of engagement, to a degree of care that was pretty impressive.

But the footage is only from the helicopter. How can you say that with absolute certainty if you don’t know what happened on the ground?

Well, the video covers the operation.

So are you satisfied, having watched that footage in the video, that the people that were killed—the nine insurgents that the Defence Force refers to—were insurgents, and not civilians? You can say that definitively? Because that’s really the crux of civilians versus insurgents—putting aside the misfire from the helicopter gunship.

Yep, well, again, as the CDF has indicated publicly, including last week, that's the conclusion he’s come to—

But what about your conclusion from watching it, because you're now coming out and saying that there’s no need for an inquiry. Can you definitively say that those people that were killed by the helicopter gunship were insurgents and not civilians?

Well, on the advice available, the process, the video: the answer to that is yes.

But you've made your decision based on, part of it, having watched that video. So putting the Defence Force advice aside, is it your belief that they were insurgents—that they were combatants, not civilians, from your viewing?

Yes, and that’s backed up by, you know, classified intelligence related to the operation.

Have you had any advice on the other allegations in the book of war crimes, such as the treatment of the prisoner?

As I understand that, inquiries are ongoing around those allegations.

From the video that you saw, could you actually see fire power going towards the helicopter and the chopper responding?

All I can say is that the video shows the operation in detail.

What do you say to Nicky Hager and Jon Stephenson now?

Well, not a lot, really. I mean, they've written a book; I presume they've sold a few. My concern is not them; it is whether or not New Zealand troops behaved according to the standards that we would expect of them and that they set for themselves. And the answer to that is yes. I think that’s a tribute to the professionalism of the troops involved, and in a difficult environment where they are under total scrutiny. At the time and after the operation, they've met those high standards—taken every step to minimise the possibility of civilian casualties and carry out a challenging operation.

So without describing the contents of the video, can you just say where it came from, in terms of, I suppose, the range of different sources that fed into the footage?

Well, look, you'd need to talk to the CDF about the details of it, but there's a number of different points of view from a number of different aircraft.

So there’ll be—so all from the aircraft rather than on the ground? Would that be accurate?

Well, as I said, it's a video of the operation. There’s no room for doubt about the basic facts of what happened.

But it was from the aircraft? I just want to be accurate when we're talking about it, SO—

Yeah, they're aircraft-based video. Yeah, that’s right.

How long is the video and has the video that you watched been edited in any way?

You'd have to ask the defence forces about the details of that. I've seen the video footage, which is completely consistent with the description of the events going back to the ISAF report, where, you know, a summary of the events was published in a press release. It wasn’t actually uncovered by Nicky Hager; it was published in a press release, and with the outline that the CDF gave around the operation just last week.

Was that because with the battle of Baghak—

Sorry, what was that?

Because with the battle of Baghak, the Defence Force released a video and then it later emerged there was more video that we didn’t see. Are you confident that you've seen the entire operation?

Well, I've seen the relevant parts of the video. I haven't watched all the video footage associated with the whole operation. I understand there’s quite a lot of that. But I can assure you that if that video was presented in any way that’s misleading, that would be a very serious matter.

Can you identify 5 minutes or an hour—II mean, can you give us a sense of how long you watched this for?

I've watched the relevant parts of it around the events which have been, you know, raised by the book and investigated by the CDF.

But how long did that take? How long did it take for you to watch the video?

Well, all 'm saying is I watched the relevant parts of it; I haven't seen the whole video.

Sorry, the treatment of the prisoner, so the inquiries are ongoing, what's the nature of those inquiries and how—so, what are we looking at there? Because those are quite serious allegations about the treatment of the prisoner and what they handed over.

I understand the inquiries are ongoing because they're still trying to establish exactly what happened. In that situation, they don’t have the benefits of the oversight and review and video, which is automatically part of, you know, coalition operations in the field.

Because that was—was that new information as well? I mean, the operation itself obviously—you know because it's been reported on before. Was this new?

Look, you'd need to check that with the CDF. Look, it’s the first time I've dealt with the issue in my capacity as Prime Minister, but these are events from 7 years ago, so, presumably, aspects of them may have been known to some people.

In the event of legal action being taken on behalf of villagers, is it your understanding that the video may be subject to disclosure requirements in the course of [/naudible]?

Well, that would be a, you know, matter for the relevant jurisdiction and the powers of the court. I haven't had any advice on that.

Just on the misfire—I mean, the book talks about the fact that civilians could have been killed, and the ISF investigation and the CDF say civilians may have been killed, “unfounded”, I believe was the word used—but may have been killed. Is it worth having a broader inquiry into that misfire, into how that happened, and whether that could have actually—whether we can confirm if that did kill civilians?

Well, that’s exactly the matter which the CDF has looked into, and as has been stated now a number of times, there hasn't been evidence that civilians were killed. The allegations in the book I think you'd have to discount, because they appear to be about different places and different people. If there. was any further evidence around the civilians, then the CDF would be obliged to investigate those, and we would want him to do so.

So what happened to the 3-year-old?

That's really a question for the authors of the book.

So on the video, though—the relevant part that you mentioned—is that the misfire from the US Apache? Is that the relevant part you saw?

Yeah, that's—I mean, the facts that have been investigated relate to the possibility that civilians may have been casualties, and, as the CDF has outlined publicly, that’s related to a misfire from a coalition helicopter.

But they also talked about—sorry to come back to it, but the nine insurgents that were killed. So did you view that as well? That was part of what you viewed, not just the misfire of the building?

Well, what I saw of the video was, as I said, covered the operation and the potential contentious points in it, and the aspects which the CDF has investigated, which does include that.

So it was smaller than the—OK, yeah. Because the raid was over 2 hours long, I think. How do you know you didn’t see stuff that did happen—you know, that there might be something important? You're taking their word on it?

The CDF has presented that information. As I said, it's backed up by the earlier investigations—the internal reviews about it. As I said, if it's in any way misleading, that would be a very serious matter, for two reasons. One is the CDF has statutory obligations— and I trust his integrity; I believe he’s met those obligations. And, secondly, in the end, the Government has the civilian charge of the defence forces, and the defence forces are accountable to the Government of the day and they are obliged to account for themselves transparently. I believe they've done so. If there was any suggestion they hadn't, again, that would be a serious matter.

What about them saying that civilian deaths were unfounded, and then later they came out and said they made an error? Was that not misleading, to use the word “unfounded”?

Well, as I understand it, it's a legal term. What has been clear from 7 years ago is that there was a possibility of civilian casualties, but what's also become clear is that there hasn't been evidence that there were casualties—which is not to say it certainly didn’t happen. It’s simply to say there hasn’t been evidence that there were casualties.

Doesn’t that kind of prove the point though, because the fact that the word “unfounded” was used and how the public interpreted that is quite different. So shouldnt an inquiry take place, because then you can actually look at some of these issues and see, outside of New Zealand Defence Force's interpretation of them, whether they happened or not?

With the facts around this, there isn’t a lot of room for interpretation. As presented by the CDF last week, the facts of the matter are pretty straightforward, and I've seen, you know, corroboration of those facts in a number of different ways. So in that sense, it's been, you know—the person with the legal obligation to investigate is the CDF. He has done so. He’s gone through a thorough process subject to legal oversight, come to a conclusion about it, and I agree with that conclusion. I trust the process and believe that the defence forces have dealt with this correctly. If they haven’t—as I said, that would be very serious. Now, anyone who wants to contest that is free to bring forward further evidence, and the CDF has assured me that if there was any further evidence that questioned his conclusions, he is not only obliged to look at it but he would want to look at it.

Do you accept, though, that it's been unclear for the public. Because of that type of legal language and the type of investigation that the Defence Force has done, there have been questions left unanswered and the public has been confused by that. Do you accept that?

No, I think the public release of the details and conclusions about this 7 years ago have, I think, reassured the public. What's created confusion is a series of allegations about war crimes in the book. That has prompted the CDF to go back and have another look and I think the public can be reassured that's been a thorough process, that it's had legal oversight, and that in my capacity as Prime Minister I support the conclusions it has come to.

Is this, effectively—checking with your comment there about anyone wanting to contest this is free to come forward, are you challenging either the authors or their sources to come forward here?

They're free to come forward. I'm not trying to challenge anybody. We would of course want to know if New Zealand troops were involved in war crimes or even the, you know, less serious offence of misconduct. We would want to know that. The defence forces would want to know that. The coalition forces would want to know that. The public would want to know that. There is every opportunity for people who have evidence to that effect to come forward and it will be dealt with by a transparent statutory process.

In this case that the Defence Force holds the evidence—they hold the key evidence that they're not willing to release publicly. So people who might question that don’t have access to the information that the Defence Force has.

Well, the Defence Force has released information—laid out the set of circumstances to the extent they can which isn’t where it's not classified, and the facts of the matter are out there. If people have—

They're not really out there. I mean, there is the video that the Defence Force is relying on. If someone independent like the Solicitor-General or someone could view it—as I said, they hold all the evidence. They're the ones with the information that they're not releasing.

Well, as I said, the CDF has actually outlined in some detail the circumstances.

The view that there's some other body of information that might show a different story is simply wrong. There's some classified material that I myself and the Minister of Defence have had a look at. It confirms the facts as outlined by the CDF.

Isn't it possible this whole thing could have been a complete fiasco done in New Zealand's name but without there being misconduct—you know, perhaps errors and things like that? Why does it have to be misconduct or war crimes to warrant an inquiry?

Oh, because those are the allegations that are made and the CDF has no choice but to deal with them. He has to deal with allegations of the sort that were made in the book, and he’s dealt with them.

Did the material that you saw, deal with the nine insurgents that were killed, the [Inaudible] that were killed? Did you see evidence that those people were positively identified as insurgents, and has the Defence Force looked into that to make sure that those people were positively identified?

Yes, they have.

What did you see exactly that made you so convinced that they were insurgents?

Well, again, I'm not going to go into the details about the video. What I've been presented with is a process that shows a build-up of intelligence, threat assessments, a coalition decision to take action, action being taken, a review of that, now a further in-depth review of what was reviewed 6 or 7 years ago, and it’s come to that conclusion.

But the CDF said that they never identified the people they claim were insurgents. So how does that gel with you saying that they were fully identified?

Well, all 'm saying is I'm just giving you a view based on the information that was presented to me.

Did you say they were identified as the insurgents that had been targeted?

Well, that’s a different matter as to whether it was exactly the same people that they went in—that were the focus of the operation but you're best to address those questions to the CDF. What I'm satisfied about is that there’s no evidence of civilian casualties and that the coalition forces, including the New Zealand forces, acted consistent with the rules of engagement and the legislation that applies.

But the CDF said that they didn’t identify the people that they killed—they couldn’ put individual names to the people that they killed?

Well, you'd need to take that up with him about exactly the issues over who they went to get—who was the focus of the operation, and what actually happened. What I'm satisfied about is that there's been no evidence presented of civilian casualties.

Have you heard from—have any of the other coalition forces spoken to you about this; any of the other Governments that had military involved?

No, not directly but I'm advised by the CDF that if he saw any evidence of misconduct or war crimes by any coalition forces personnel, then he would be obliged to report those to the relevant authorities, because the different forces are actually under different jurisdictions. But they review each other.

But did he see anything? Did he report anything from anyone else?

No, well, he’s advised me he’s satisfied that all the personnel acted consistently with the rules of engagement; that’s the benchmark here. So he—you’'d have to talk to him about exactly what discussions he’s had with coalition forces, but he advises me that he hasn’t seen actions taken that represented misconduct or inconsistency with the rules of engagement.

Was it just Kiwis and the US? I just want to make sense—you had these briefings with just the New Zealanders and the US involved in this operation?

Look, the term for all of them is that they're coalition forces.

Do you know what countries were involved?

Yeah, who was in there?

Well, as I said, the term for all of them is coalition forces, and in the material that’s being presented to me those distinctions—while in a legal sense are relevant, in an operational sense aren't.

Butin a legal sense, what were the distinctions?

Well, legally, if there was misconduct by a particular person involved in the operation, then that would be dealt with by the jurisdiction to which they belong.

Yeah, I'm just trying to work out which jurisdictions are involved?

Well, you can follow through on that with the CDF, and we looked at it as coalition forces as a whole, and because the matter hasn't arisen about misconduct, then the issues of jurisdiction haven't had to be considered.

Why should the public trust your assessment of this?

Well, they I think can be—I think they've probably concluded already that the book, the allegations in the book, and a lot of the content of the book, has turned out to be wrong; that in this case the chief of defence forces, who runs defence forces with one of the best reputations in the world for professionalism, he has followed his legal obligations and come to the conclusion that there was no misconduct. Myself and the Minister of Defence have looked at that process, looked at a range of the evidence, and agree with that conclusion.

What investigations were there or inquiries were there to determine that there was no evidence of civilian casualties?

Ah, well, the—in the context of the operation, the position has always been that civilian casualties could have occurred, and I can assure you that if there was any suggestion that New Zealand troops were involved in causing civilian casualties in any kind of context that’s been raised by the book that was published, then we would be certainly looking very hard at that. The CDF has done that, on top of the original ISAF investigation, and, as we've said, anyone who has information that’s relevant can do what the authors of the book did—that is, bring them forward and the CDF is then required to investigate those. And so while there’s been quite a bit of speculation and unsourced talk, what has been brought forward hasn’t been found to show that there were civilian casualties caused.

So no one actually looked at whether civilians may have died; it's just that no one’s come forward and said they did?

Well, there was an investigation within a short time of the events to try and establish that. They weren't able to establish it. That's the first point. The second point is that in the context of the operation, the benchmark here is—of the operation itself and the defence personnel, whether they followed the rules of engagement, and it’s clear that they did.

Did the CDF advise you that there was no need for an independent inquiry?

Well, he’s advised me of the results of his inquiry, and that’s in the letter, which will be released.

And did he advise you that there was no need for a further inquiry?

Well, look, the Government always has the option. His advice is that having inquired, he’s come to the conclusion that there’s no evidence of misconduct by the troops and no evidence of war crimes by New Zealand troops. We accept that conclusion.

Haven't you failed—by not holding an inquiry, you've denied them a chance to clear their name?

No. The only question mark over their name is a series of allegations of war crimes in a book which has been discredited. We're not bound to hold an inquiry simply because someone makes allegations, particularly when those allegations turn out to lack substance because they are, for instance, about two different villages, different people— typography that’s not where the New Zealand troops were, I mean, detailed descriptions of what happened in places, where New Zealand troops did not go. So it's pretty hard to take all that seriously, but if people have more substantial evidence than what's in the book, then we would want to see it, and the CDF will be obliged to investigate it.

Are you concerned, then, about potential or likely legal action? Are you worried what that may uncover?

No, not at all. People are always free to take legal action against the Government, against the defence forces on any basis they like. That's their business.

Was the book a responsible piece of journalism?

It just looks to be, in some cases, a wildly inaccurate piece of journalism.

Nevertheless, the allegations were serious. They've been taken seriously, and we've come to the conclusion that the allegations of war crimes and misconduct don’t have substance to them.

We have a mechanism for dealing with classified information, which is the appointment for a special advocate. In the course of if legal action is taken, would you be prepared to release the video to a special advocate who can provide the public with the independent verification and analysis that so far is lacking from this process?

Look, that's a matter of legal speculation. I mean, I'm not aware of the mechanism that you're referring to. There would be, I'm sure, a lot of issues including whose video it was and who had the power to declassify.

If CDF does come up—is presented with new evidence, would you expect him to share that with the Government?

I certainly would, particularly in the light of the firm conclusions that he’s drawn and the advice that he’s given us about the thorough process that sits behind those conclusions. I'd expect to hear about any new evidence and see a process for dealing with it expeditiously.

Why won't you say how long you watched this video for? Is that classified information too?

The video's classified and I'm just not going to get into comment about the detail of it. That's all, because if it's—answer one question and then there's 15 others. I'm not going to discuss the detail of it.

When did you watch it?

Today.

Today?

Yes. OK. Thank you very much.