An Australian senator has invited the International Criminal Court (ICC) to investigate what Australian military commanders knew about war crimes allegations in Afghanistan, in a bid to pressure Australia into launching its own review.
Senator Jacqui Lambie, an influential independent legislator, sent an Article 15 Communication to the Hague-based court on Tuesday on the grounds that 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 the Senate, using a colloquialism for Australian soldiers.
“There is a culture of cover-up at the highest levels of the Australian Defence 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.
Australia has avoided ICC involvement so far by launching its own war crimes investigation under Major General 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.
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 commanding officers “knew or should have known” of illegal conduct, Kolomeitz said.
Kolomeitz hoped ICC’s involvement would prompt Australia to extend its own war crimes 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.
Defence Minister Richard Marles said whether the ICC launched its own investigation was a question for the court.
“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.
More than 39,000 Australian military personnel served in Afghanistan during the 20 years until the 2021 withdrawal, and 41 were killed there.
