KEY POINTS:Senator Jacqui Lambie met with Defence Minister Richard Marles to discuss her concerns.She says she will use every avenue to pursue war crimes allegations.She has referred senior ADF command to the International Criminal Court.
Senator Jacqui Lambie insists she will “use every avenue” to pursue Australia’s top military brass over alleged war crimes in Afghanistan, after demanding the International Criminal Court (ICC) investigate their responsibility.
The crossbench senator remained tight-lipped after emerging from a meeting with Defence Minister Richard Marles, a day on from
that could technically lead to Australian commanders appearing before The Hague.
Senator Lambie referred senior command to the ICC on Tuesday, and suggested that the 2020 Brereton Report had “thrown us diggers under the bus” while granting higher-ups a “blanket exemption” over alleged war crimes in Afghanistan.
While legal experts have poured cold water on the prospect of her referral prompting an ICC investigation, Senator Lambie insists she will continue to pursue senior commanders over their alleged accountability.
“I have no doubt that [the ICC] will inquire into Australia [and] whether or not [it is] looking at senior command. They will have to be honest and say no … I will use every avenue possible to make sure they are accounted for, and that’s what I intend on doing,” she told RN Breakfast on Wednesday.
Senator Lambie’s attempt to table her referral to the Senate was resisted by Labor and the Coalition in the short term on Tuesday, both arguing they needed additional time to review the document. The Greens initially agreed with the two major parties, but backed the tabling on Wednesday after reviewing the documents.
Retired army officer Stuart McCarthy, who helped collate evidence cited in the referral, urged the government and opposition to “show some integrity” and agree to table the document.
“They owe that to the public,” he told SBS News.
“Only then can we have an informed debate about criminal accountability at the highest levels of Defence and government.”
Senator Lambie doubts senior officials’ ignorance
The 2020 Brereton Report detailed evidence of 39 murders committed by Australian special forces (SAS) soldiers in Afghanistan.
While the report determined that senior commanders were morally responsible for the alleged crimes, the finding did not extend to legal responsibility or make a criminal determination.
Under international law, commanders are criminally liable for war crimes they knew about or reasonably should have known about but did not prevent.
Senator Lambie believed it was unfeasible that senior commanders “did not know something was going on” during SAS deployments to Afghanistan.
“I have served in that uniform and everybody [at] the top knows what’s going on, I can assure you,” she said.
But Defence Minister Richard Marles responded by publicly praising Senator Lambie’s commitment to veterans, insisting Labor remained committed to implementing the Brereton Report’s recommendations wherever possible.
Jacqui Lambie says she will pursue ‘every avenue’ over war crimes allegations in Afghanistan. Source: AAP / Mick Tsikas
The pair discussed Senator Lambie’s concerns in parliament on Wednesday, though neither side commented after the meeting wrapped up.
Senator Lambie stressed the Brereton Report had referred potential command responsibility to the Chief of Defence Forces Command Accountability Review.
“How can you possibly have the most senior commander reviewing commander accountability? Not only does he do his own homework, he seems to be reviewing himself,” Senator Lambie said.
Defence Minister Richard Marles met with Senator Lambie to discuss her concerns on Wednesday. Source: AAP / Lukas Coch
“That’s not how it works in real life. It just doesn’t work like that. This has been the problem with Defence all along: they never take responsibility for their actions at the top.”
The ICC is a court of last resort and can only intervene when a country is unable or unwilling to investigate the allegations itself.
And legal experts have played down the prospect of the ICC actually launching an investigation, saying an ongoing probe by the Office of the Special Investigator (OSI) and Australian Federal Police (AFP) would likely mean the court has no jurisdiction.
Mark Dreyfus says Australia can be ‘very proud’ of its approach
Attorney-General Mark Dreyfus accepted it was a “concern” whenever Australia was taken to court “anywhere”.
Mr Dreyfus told SBS News that war crimes prosecutions were “already on foot”, and more were possible.
“Australia can be very proud that we have, unlike most other countries in the world, a war crimes prosecution process,” he said.
Mark Dreyfus accepts the referral is a ‘concern’, but insists Australia can be ‘very proud’ of its response to war crimes allegations. Source: AAP / LUKAS COCH/AAPIMAGE
The OSI is not limited to investigating alleged offences referred to in the Brereton Report and has the legal licence to pursue ADF figures of any rank.
It is currently investigating around 40 allegations, though its targets remain a tightly-guarded secret.
The OSI filed its first charges earlier this year, charging a former SAS soldier with murder after he allegedly shot an unarmed Afghan man in a wheat field.
On Tuesday, a Defence spokesperson said the Chief of Defence Force has considered “command accountability” of current and former senior officers relating to Australia’s involvement in Afghanistan.
“The Inquiry found commanders bear moral responsibility and accountability for what happened under their command,” they said.
“Australia is addressing and responding to the findings of the Afghanistan Inquiry in accordance with our own laws and justice system.”
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