‘Low’ threshold for Hague to investigate Australian Army top brass: lawyer

A lawyer who co-wrote Senator Jacqui Lambie’s referral to The Hague says there’s a fair chance the court could decide to probe top Australian military brass over alleged war crimes in Afghanistan. 

Military lawyer Glenn Kolomeitz says the threshold that needs to be cleared for the International Criminal Court (ICC) to begin investigating is “quite low”. 

“There needs to be a ‘reasonable basis’ to proceed — it doesn’t need to be on balance [of probabilities], and certainly not beyond reasonable doubt,” Kolomeitz tells Crikey.

The referral to the ICC, revealed by Lambie on the Senate floor on Tuesday afternoon, points out “the standard of proof for proceeding with an investigation … is the lowest evidentiary standard provided for in the Rome Statute”. 

The referral was made under article 15 of the statute, which allows an ICC prosecutor to initiate investigations. Lambie argued “senior commanders got a free pass, while their Diggers were thrown under the bus” when the Brereton inquiry looked into allegations of war crimes in Afghanistan.

The Brereton inquiry concluded with a report in 2020 that found evidence of dozens of murders committed by Australian troops.

Kolomeitz says military commanders could be investigated whether they knew about the allegations or not: “The actual offence is a breach of duty — failure to inquire. They have a duty to inquire, and if they’re hearing [rumours] and they do nothing, then they’ve breached that duty to inquire.”

Lambie alleged that “allegations of unlawful behaviour” had been “reported all the way up the Special Forces chain of command” but that senior commanders hadn’t been held accountable. The letter to the ICC called for the court to “undertake an investigation of the ADF higher command in the context of the ongoing activity in respect of the situation in Afghanistan already under investigation”. 

Lambie told the Senate the referral to the ICC was “a last resort”: “It isn’t easy to get them to investigate. They can only do this if the state party — in this case Australia — has failed to investigate.”

Defence Minister Richard Marles said Australia is “holding itself to account”: “From the moment that we were elected we made clear that we will seek to implement the recommendations of the Brereton report to the fullest possible extent.”

Lambie, a defence force veteran, asked to table some documents in the Senate, but her colleagues on the crossbench and in the opposition asked for some time to pore through them before deciding. 

Rumours Lambie would stand up to make a special announcement had been circulating in the press gallery earlier in the morning. It’s understood some senators were surprised by the move. Several Greens senators could be seen huddling on the Senate floor while Lambie was speaking. 

“The Australian Greens have been provided with these documents, but it was literally within the last two minutes,” Senator Nick McKim said. “There are numerous documents in the binder … and many of these documents are very lengthy; there are hundreds of documents.” 

It’s understood the bundle Lambie sought to table included the ICC referral, transcripts from Senate estimates, Parliamentary Library research material, and a doctoral thesis written by Kolomeitz and titled “How long the shadow? Command responsibility for war crimes in Australian law”.

Ben Roberts-Smith, an SAS commander who served in Afghanistan, was recently found on the balance of probabilities to have committed war crimes in Afghanistan. That conclusion was reached by a judge acting in a defamation case brought by Roberts-Smith against newspapers that had reported the allegations.