Jacqui Lambie asks International Criminal Court to investigate senior Australian war crimes allegations

The former ADF member has used an emotional speech in the Senate on Tuesday as she sought to table documents relating to the article 15 referral to the Office of the Prosecutor of the International Criminal Court. While the attempt to table failed, it notified the government and the ADF that she is seeking the war court to "look at Australia's High Command through the lens of command responsibility".

The Office of Special Investigations was established late in 2020 and began working on an investigation into alleged war crimes committed by the Australian Defence Force, as detailed in the Brereton report.

Senator Lambie's 27 page referral to The Hague is countersigned by human rights advocate Kay Danes and lawyer and veteran Glenn Kolomeitz.

Senator Lambie is now set to have a meeting with Defence Minister Richard Marles where she is expected to outline her concerns that there is a "shocking lack of accountability" at the top of Australia's defence force.

"Like the chief of the Defence force and the top brass, the government is no doubt hoping this will just go away," Senator Lambie told Parliament.

"They're hoping that Australians will forget that when alleged war crimes in Afghanistan were investigated our senior commanders got a free pass while our diggers were thrown under the bus.

"Well, we don't forget. I won't forget. Lest we forget."

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Mr Kolomeitz said the intent is to get Australia to properly investigate claims of criminality relating to command responsibility.

"The responsibility provisions in the Rome Statute are that they knew or should have known. That's the old test going back to the Second World War," he told reporters in Canberra.

The process of article 15 means the allegations will be referred back to the Australian government to explain if the chain of command has been investigated over claims of war crimes in Afghanistan.

"So if Australia does nothing about it, the ICC can potentially assume jurisdiction over the higher command and exercise the higher command investigation from the ongoing investigation of junior soldiers," Mr Kolomeitz said. "That will be a matter for the ICC prosecutor and indeed for the Australian government."

"If Australia says they are active, have investigated or are investigating, then the ICC looks at whether it's a genuine investigation.

"Now, the ADF or in fact, nobody, has investigated the higher command because Major General Brereton in his report said that he gave a blanket exemption which is a term that a government oversight body gave. A blanket exemption to the higher commanders."

Senator Lambie claimed there was a "culture of cover-up" at the highest levels of the Australian Defence Force.

"It is the ultimate boys' club," she said.

"Well, today I say 'enough, enough is enough'. There will be no more marking your own homework. There will be no more throwing our diggers under the bus.

"Bottom line is this. The commanders have thrown us diggers under the bus. Well now they can come under the bus and play with us. Simple as that."

A spokesperson for Mr Marles said he is considering the recommendations of the Brereton report, including command responsibility.

"As the Deputy Prime Minister has said, the IGADF Afghanistan Inquiry is a hugely significant document, and given the appalling nature of the allegations which are contained within it, it is really important that the recommendations of that report are implemented to the fullest possible extent," a spokesperson said.

"Since taking office in May 2022, the government has been focused on ensuring that takes place, and that work is ongoing.

"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."

The referral to the International Criminal Court comes weeks after the Ben Roberts-Smith defamation case, in which a Federal Court judge found the Victoria Cross recipient committed a slew of war crimes while in Afghanistan including the murder of unarmed prisoners.

Senator Lambie sought to table the referral to The Hague in the Senate, but the government, opposition and the Greens asked to see the documents first.

The Canberra Times has sought a response from the ADF.