Australian senator invites International Criminal Court to probe officers in war crime allegations

A senator invited the International Criminal Court to investigate what Australian military commanders knew about war crime allegations in Afghanistan in a bid pressure Australia into launching its own review.

Sen. Jacqui Lambie, an influential independent legislator, sent an Article 15 Communication to the Hague-based court Tuesday because she argues military commanders have not been held accountable for their soldiers’ alleged war crimes.

“The government is, no doubt, hoping this will all just go away. They’re hoping that Australians will forget that when alleged war crimes in Afghanistan were investigated, our senior commanders got a free pass, while our Diggers were thrown under the bus,” Lambie told Senate. “Digger” is a colloquialism for Australian soldier.

“There is a culture of cover-up at the highest levels of the Australian Defense Force. It is the ultimate boys club,” added Lambie, a former army corporal.

The ICC has an obligation to prosecute war crimes committed by Rome Statute signatories, including Australia, when such a state is “unwilling or unable” to prosecute, according to the Australian government.

Australia has avoided ICC involvement so far by launching its own war crime investigation under Maj. Gen. Paul Brereton, a judge and army reservist.

Brereton’s report, released in 2020 after a four-year investigation, found evidence that Australian troops unlawfully killed 39 Afghan prisoners, farmers and civilians. The report recommended 19 current and former elite soldiers face criminal investigation.

The first criminal charge for an alleged illegal killing in Afghanistan was laid in March. Former Special Air Service Regiment trooper Oliver Schulz, 41, was charged with the war crime of murder in the death of an Afghan who was shot in 2012 in a wheat field in Uruzgan province.

Ben Roberts-Smith, Australia’s most highly decorated member of the armed services when he left the SAS in 2013, is also under police investigation.

The 44-year-old former corporal, who was awarded the Victoria Cross and the Medal for Gallantry for his service in Afghanistan, lost a defamation case June 1 when the Federal Court found war crime allegations against him published in newspapers, including four unlawful killings, were true.

Lambie’s lawyer, Glenn Kolomeitz, said there was a place for an ICC investigation because Brereton had not investigated the role of commanding officers in the alleged war crimes.

The ICC could find that commanding officers “knew or should have known” of illegal conduct, Kolomeitz said.

Kolomeitz hoped the ICC involvement would prompt Australia to extend its own war crime investigation to commanders.

“The onus will then be on the Australian government to give some serious consideration as to why Australia has not investigated command responsibility aspects of the Afghanistan allegations and what we’re going to do about it,” Kolomeitz told reporters.

He said Australian officers being tried in The Hague was an unlikely outcome, unless the government prolonged its inaction and the ICC found it necessary.

“Our intent is to get us, Australia, to properly investigate … allegations of criminality,” he added.

Defense Minister Richard Marles said whether the ICC launched its own investigation was a question for the ICC.

“Ultimately that’s a matter for the ICC. What I can tell you is what the Australian government is doing. We regard this very seriously. We will seek to implement the Brereton report to the fullest possible extent,” Marles told reporters

Brereton made several recommendations about command accountability in his report. Defense Force Chief Angus Campbell also made recommendations about officer accountability, which reached Marles’ desk.

Marles said he was seeking advice before implementing those recommendations.

“Allegations that are at the heart of this are very serious and very grave, but through the recommendations of the Brereton report our government will ensure that we make this right,” Marles said.

More than 39,000 Australian military personnel served in Afghanistan during the 20 years until the 2021 withdrawal, and 41 were killed there.