‘Culture of cover-up’: Lambie refers ADF commanders to The Hague

Tasmanian Senator Jacqui Lambie has referred senior Australian Defence Force officers to the International Criminal Court over alleged war crimes in Afghanistan, but legal experts say it is unlikely the case will ever be heard.

Lambie told the Senate there was a “culture of cover up at the highest levels of the Australian Defence Force” and that she had gone to the Hague because she believed the military leadership was hanging more junior officers out to dry over wrongdoing in Afghanistan.

Lambie, who served in the army for almost 11 years before entering politics, on Tuesday released a 28-page legal brief signed by herself and three legal experts claiming there was a case for the court to launch an investigation into the defence force’s chain-of-command responsibility for alleged war crimes in Afghanistan.

The International Criminal Court (ICC) was established in 1998 to investigate the gravest violations of international law including genocide, crimes against humanity and war crimes.

“Let’s be quite clear here: the senior commanders have not been examined through the hardcore legal lens,” Lambie said.

“Leadership knew this went beyond patrols. It went up the chain. Everyone knew. Everyone knew. And still our government is silent.”

Describing the defence force as the “ultimate boys club”, she said: “Well, today I say, enough is enough.”

The legal brief argues that the “proper investigation of higher commanders has been actively and systematically avoided by Australian military and civil authorities”, making it imperative for international investigators to examine senior military leaders’ responsibility for alleged war crimes that occurred under their watch.

Military lawyer Glenn Kolomeitz, who published a PhD on the topic earlier this year and co-wrote the legal brief for Lambie, said former judge Paul Brereton had given a “blanket exemption” to senior military commanders in his 2020 report into alleged war crimes.

“The Australian government is inactive in investigating the higher command.

“They haven’t investigated; they aren’t investigating.”

‘The ICC will receive ... the communication but it is doubtful whether it would commence an active investigation.’

Donald Rothwell from the Australian National University

Brereton wrote in his report that it was at the patrol commander level that any “criminal behaviour was conceived, committed, continued, and concealed, and overwhelmingly at that level that responsibility resides”.

Kolomeitz said he believed commanders who served at the Joint Task Force 633 level should be held accountable for wrongdoing under their watch.

Angus Campbell, the current chief of the Australian Defence Force, served at this level from 2011 to 2012, a period when several alleged war crimes were committed.

Defence Minister Richard Marles said the government “will seek to implement the recommendations of the Brereton Report to the fullest possible extent”.

“And under this Government, Australia is holding itself to account,” he said.

Donald Rothwell, a professor of international law at the Australian National University, said the referral was unlikely to progress.

“The ICC will receive and note the communication but it is doubtful whether it would commence an active investigation into these matters”.

“The International Criminal Court is a court of last resort, meaning it will only investigate and prosecute when Australia is unwilling or unable to do so.”

Senator Jacqui Lambie and military lawyer Glenn Kolomeitz are calling on the International Criminal Court to investigate senior Australian military commanders. Credit: Alex Ellinghausen

Rothwell said the Office of the Special Investigator, established to investigate allegations arising from the Brereton report, had a mandate “to consider all ADF conduct in Afghanistan from 2005 to 2016, which will include senior officers and commanders”.

“The ICC is aware of ongoing processes in Australia and that they are not yet complete,” he said.

Ben Saul, an international law professor at the University of Sydney, said he believed it was “way too early” for the ICC to consider investigating Australian commanders given the Office of the Special Investigator’s work was ongoing, as well as the Australian Federal Police.

Saul pointed out that ICC chief prosecutor Karim Khan had made clear he was prioritising investigations of alleged war crimes committed by the Taliban and the Islamic State rather than western nations.

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