Marles vows to hold brass accountable for war crimes after Lambie refers ADF commanders to International Criminal Court

Defence Minister Richard Marles vows to hold ADF commanders accountable for war crimes on their watch after Jacqui Lambie referred senior leaders to the International Criminal Court.

Senator Jacqui Lambie addresses the Senate. Picture: Getty

Defence Minister Richard Marles has vowed to hold Australian Defence Force commanders accountable for war crimes committed on their watch after independent senator Jacqui Lambie referred the ADF’s senior leadership to the International Criminal Court.

Senator Lambie told the Senate on Tuesday she had filed an official request with the ICC at The Hague seeking an investigation into the culpability of ADF officers for war crimes exposed in the November 2020 Brereton report.

A screenshot from a Four Corners investigation into alleged war crimes committed by Australian special forces in Afghanistan.

She said there was “a culture of cover-up at the highest levels”, protecting commanders who “knew for years about the allegations of unlawful behaviour” by Australian special forces troops in Afghanistan.

“Our senior commanders got a free pass while our Diggers were thrown under the bus,” Senator Lambie said. “It is the ultimate boys club. Well, today I say enough is enough.”

Justice Paul Brereton found special operations “troop, squadron and task group commanders must bear moral command responsibility and accountability for what happened under their command and control”.

But his report exonerated higher-level officers, including commanders of Australia’s Middle East operations – a position held in 2011 by now Chief of the Defence Force Angus Campbell.

Senator Lambie’s 28-page legal brief, prepared with military lawyer Glenn Kolomeitz, says Justice Brereton handed a “blanket exemption” to higher commanders. The document asks the ICC to investigate, arguing “proper investigation of higher commanders has been actively and systematically avoided by Australian military and civil authorities”.

It also highlights General Campbell’s conflict of interest in leading the ADF’s post-Brereton review into command accountability, accusing Defence of “marking their own homework”.

Senator Lambie, who served in the army for more than a decade before entering politics, told the chamber the conduct of senior commanders had not been examined through a “hardcore legal lens”. “Leadership knew this went beyond patrols. It went up the chain. Everyone knew. And still our government is silent.”

Ben Roberts-Smith during preparations for the Shah Wali Kot Offensive in southern Afghanistan in 2010. Picture: Department of Defence

Mr Marles said the government would ensure commanders were held responsible for the crimes identified by Justice Brereton, declaring: “Our government will ensure we make this right.” He said it was a matter for the ICC whether it took up the case, but General Campbell was acting on the Brereton report’s recommendations “with our full support”.

“That process, in turn, has led to a number of recommendations, which now sit on my desk,” Mr Marles said. “And I'm seeking the appropriate advice in respect of those recommendations and will act on them in due course.”

He pledged the government would implement the Brereton recommendations to “the fullest possible extent”.

Oliver Jordan Schulz has been charged with one count of “war crime – murder” over the 2012 killing of a man in Uruzgan Province in southern Afghanistan.

Justice Brereton found 35 current and former ADF personnel killed 39 Afghans. But, nearly three years after the report’s release, no senior commanders have been held accountable for the crimes. None has been sacked or demoted and all retain their distinguished command medals – many earned in deployments marred by war crimes.

The ICC referral came just weeks after Australia’s most decorated soldier, Ben Roberts-Smith, lost a defamation case against Nine newspapers over reports accusing him of multiple murders of Afghan prisoners.

Chief of the Australian Defence Force General Angus Campbell speaks during Senate Estimates at Parliament House in Canberra.

Another former SAS soldier, Oliver Schulz, was charged with one count of “war crime – murder” in March over the alleged 2012 execution of an unarmed Afghan.

General Campbell admitted last month to a “perception of a conflict of interest” in his failure to stand aside from a review into the accountability of ADF Afghanistan commanders, amid calls to hand back one of his own medals.