Monday, April 09, 2018

Why is a foreign power deciding who NZ soldiers are allowed to shoot?

The Ombudsman has released their ruling on the release and withholding of information around Operation Burnham. As expected, they've found that NZDF overclassified things and withheld information unlawfully. At the same time, a large amount of material was withheld lawfully because releasing it would prejudice national security or international relations, or it was given to NZDF by a foreign government and cannot be released without their permission.

This is expected. The conclusive withholding grounds don't allow the public interst to be considered, so if NZDF makes a reasonable case, then they get to hide stuff and there's nothing that can be done. In some cases, the Ombudsman comments unfavourably on this, saying that it would be better if it could be released, but that the law allows it to be withheld. At the same time, the Ombudsman found their concerns clearly un reasonable in some cases.

Meanwhile, there's an unpleasant surprise in the ruling: the rules of engagement for NZ troops in Afghanistan are written by a foreign power:

NZDF’s ROE were created in collaboration with another nation and are used in the most part by both defence forces. The other nation has not released its ROE publicly and has indicated its intention not to do so.
In English, that means the rules on who NZ soldiers are allowed to shoot and under what circumstances are decided by a foreign country. Whether those rules properly implement NZDF's obligations under the Bill of Rights Act and international law is unclear, as is whether those obligations were even considered (if the foreign power is the US, with its arrogant contempt for other country's laws, I think the answer is a clear "no"). And of course because they were written by a foreign power, NZDF gets to hide them behind the shield of "international relations" and "confidential information" (they also seem to think that it would be bad for national security if they were released anyway. Apparently if opposing forces knew that they couldn't be shot unless they were posing a direct threat to human life, they might not threaten people, and thus avoid being shot. This would somehow be a Bad Thing...)

The circumstances under which soldiers are allowed to use force cuts to the heart of control of the military. It is simply not acceptable that our military is controlled in this way by foreigners. And if that is the price of foreign deployments, I think the solution is obvious: bring the troops home, and forbid them from operating overseas unless they are under kiwi control with kiwi rules.

Update (14 / 3/ 2019): After a year of back and forth with the Ombudsman, NZDF has finally admitted that the foreign powers in question are Australia and the United States.