Australian senator Jacqui Lambie has requested the International Criminal Court (ICC), in The Hague, investigate senior Australian Defense Force commanders over their knowledge of alleged war crimes in Afghanistan.
Senator Lambie has been scathing in her assessment of Major General Paul Brereton’s landmark inquiry into allegations of serious misconduct by Australian special forces — a redacted version of which was made public in late 2020.
She has argued the ADF’s leadership has avoided scrutiny and accountability over what they knew of unlawful killings and cruel treatment of prisoners, despite recollections from former SAS personnel and testimony in court suggesting rumors were well known by the top brass.
“When you have the power that those military commanders do, in throwing their diggers under the bus, and you walk away and you say you have nothing to do with this — well, I’ve warned them for years,” Senator Lambie said.
“It’s one in, all in.
“And if you’re not going to look at yourself, then by bloody oath I’ll make sure you’re looked at.”
The request for the ICC to investigate references media reporting, questioning of Chief of the Defence Force Angus Campbell by Senator Lambie in Senate estimates, and testimony from the defamation trial launched by former SAS soldier Ben Roberts-Smith as reasons for prosecutors to step in.
Among the material cited are quotes from a former SAS patrol commander, saying “everyone knew”.
Veteran and military lawyer Glenn Kolomeitz drafted the request to the ICC.
“It’s now obviously in the hands of the of the prosecutor,” he said.
“One of the prosecutors’ policies … is to refer it back to the state party — so in this case back to Australia for consideration.
“The onus will then be on the Australian government to give some serious consideration as to why Australia has not investigated the command responsibility aspects of the Afghanistan allegations and what they’re going to do about it.”
Kolomeitz said the legal test was that commanders “knew or should have known” of the allegations.
“That’s the old test going back to the Second World War,” he said.
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.
