Tasmanian senator Jacqui Lambie has requested the International Criminal Court (ICC) in The Hague investigate senior Australian Defence Force (ADF) commanders over their knowledge of alleged war crimes in Afghanistan.
Key points:
- Jacqui Lambie has long criticised the landmark Brereton inquiry into alleged misconduct by Australian special forces
- She says commanders were given a free pass in that probe
- She wants the International Criminal Court to investigate senior commanders
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 high command 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 rumours 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."
Mr 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.
Higher command given a 'blanket exemption' in Brereton inquiry
In the wake of the Brereton report being released, which recommended 19 soldiers be investigated, the Office of the Special Investigator (OSI) was established to further consider the allegations.
Senator Lambie and Mr Kolomeitz argued the Brereton Inquiry had focused on ADF personnel on the ground in Afghanistan, rather than those overseeing Australia's commitment to Coalition efforts in Afghanistan.
"Nobody has investigated the higher command because Major General Brereton, in his report, said that he gave that blanket exemption — which is a term that a government oversight body gave — a blanket exemption to the higher commanders.
General Campbell said that he referred only the people who were recommended for referral by Major General Brereton to the OSI for investigation.
"So the Australian government is inactive in investigating the higher command, they haven't investigated, they aren't investigating," Mr Kolomeitz said.
"And to be brutally frank, if Australia does say we are investigating, there's such a massive problem with the way we implemented the command responsibility law into Australian law that the investigation could never be genuine anyway."
Chief of Defence Force's knowledge questioned
Chief of the Defence Force, Angus Campbell was in charge of Australian forces in Afghanistan for part of the period the Brereton Inquiry investigated.
"General Campbell … states that, on the 34 occasions that he visited Afghanistan from his headquarters in Dubai, he met with ADF members but on no occasions were reports of wrongdoing put before him," the submission to the ICC said.
"The upshot is, he and successive Commanders of Joint Task Force 633 (JTF633) were clear on notice that allegations of wrongdoing had been made, such as that earlier Commanders of JTF633 appointed inquiries at various levels, but he did not exercise his duty to inquire.
"Rather he waited for reports of wrongdoing to be put before him and, when no such reporters were forthcoming, his job in Afghanistan was done."
In the submission, Mr Kolomeitz said that was out of line with established legal precedent on the "active duty imposed on the commander to inquire".
Defence minister offers meeting to senator
Senator Lambie had tried to table documents relating to the ICC request in parliament earlier, but had her motion denied.
Defence Minister Richard Marles offered to meet with Senator Lambie shortly after.
"Since taking office in May 2022, the government has been focused on ensuring that takes place, and that work is ongoing," a spokesperson for Mr Marles said in a statement.
"As part of that, the Chief of the Defence Force (CDF) has considered the command accountability of current and former serving Australian Defence Force (ADF) members who held command positions during the periods in which the Inspector-General of the ADF found credible information of incidents of alleged unlawful conduct as identified in the Afghanistan Inquiry.
"The CDF has presented the relevant material to the Deputy Prime Minister for consideration. The Deputy Prime Minister in his capacity as Minister for Defence is considering the recommendations and seeking advice as appropriate."
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2023-06-20 05:42:15Z
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