Australia’s Afghanistan war crimes a serious challenge for Albanese government

The first responsibility of any government is to uphold the law. With Australian generals one step closer to criminal prosecution in The Hague, the Albanese administration is failing that test when it comes to alleged war crimes in Afghanistan, writes Stuart McCarthy.

As all eyes focused on the Justice Besanko’s long-awaited ruling in the Ben Roberts-Smith (BRS) vs Fairfax defamation saga several weeks ago, military lawyer Dr Glenn Kolomeitz and colleagues were finalising an International Criminal Court Rome Statute ‘Article 15’ referral, triggering a process which could eventually land Australian generals in The Hague answering criminal charges for command responsibility.

This was long before Senator Jacqui Lambie’s parliamentary speech about the referral last week. The draft document was no great secret — Kolomeitz, whistleblower David McBride and this author have been discussing it on air since late last year.

Similarly, evidence for an Article 28 command and superior criminal liability case among senior Australian Defence Force and civilian political leaders is as much a secret as the front pages of Australian newspapers from a decade ago.

Elements for proving such war crimes are straightforward

First, it must be shown that a commander or superior “knew or should have known” crimes were being committed or about to be committed. Second, that they “failed to take all necessary and reasonable measures within [their] power to prevent or repress their commission.” A series of 2012 Australian special forces raids in Uruzgan province provide what would likely be an open and shut test case in The Hague.

At Sola, on 31 August that year, an SAS patrol commander allegedly directed his subordinate to murder one of two civilians reportedly killed after they were rounded up in the local mosque. Hours after one of the victims’ bodies was taken to the provincial governor in protest, these killings were reported to high level Australian government officials by the then President of Afghanistan.

These were not “rumours.” Long before any genuine investigation could have been completed, those Australian officials dismissed this report out of hand, maintaining the victims were “confirmed as insurgents” and suggesting Afghan officials should “untangle their own reporting lines.”

The suspected crimes weren’t reported to the Australian Federal Police, which had a contingent of 20 officers co-located with the ADF Special Operations Task Group in Uruzgan, nor was the patrol commander stood down pending the outcomes of the eventual ADF inquiry.

Less than two weeks later on 11 September, the same patrol commander again allegedly “blooded” one of his subordinates by directing him to murder local civilian Ali Jan at Darwan. This was one of the more notorious alleged war crimes reported by The Age in 2018, an allegation Justice Besanko found was substantiated according to the civil standard of proof.

Highly classified defence documents leaked to The Age but not properly reported by that paper, publicly available on the Federal Court exhibits webpage, demonstrate higher ADF command and control for the Darwan raid.

Criminal proofs laid bare

Both of the Article 28 criminal proofs were laid bare in the ABC 7.30’s updated Sola story which aired a week after the Besanko ruling. This story included not only a Brereton Report leak naming the SAS patrol commander in connection to this incident, it also included footage of the early-September 2012 press conferences in which senior government officials acknowledged the killings but angrily denied any accusations of wrongdoing.

The evidence here is so damning it would likely exceed the higher “recklessness” standard for command and superior responsibility required under Australian criminal law, in the event this case isn’t brought before the ICC. Again, no big secret for any of the half-a-million viewers of the national broadcaster’s prime time nightly current affairs program.

Yet the ashen look on Defence Minister Richard Marles’ face when cornered by the press after Lambie’s attempt to table the Article 15 last week suggests he was taken completely by surprise. And his panicked response? The kind of reflexive spin and deceit the public have been conditioned to expect whenever senior government officials are called to account for anything, much less war crimes.

To any informed observer the audacity of Marles’ spin was breathtaking, but like all good spin it was predicated on multiple layers of bullshit.

For the ICC to exercise its jurisdiction, the legal test is whether “the case is being investigated or prosecuted by a State which has jurisdiction over it.” The Article 15 submitted by Lambie is specific to officers who served as commanders of the Australian Joint Task Force 633 or further up the national chain, i.e. Major-General or higher. Under the ICC’s complementarity principle this would not interfere with any Australian proceedings against more junior ranks.

The main discredited finding of the Brereton Report was that commanders of JTF 633 and more senior officers were exempted from criminal liability “because they did not have a sufficient degree of command and control to attract the principle of command responsibility.”

But no criminal investigations

While there has been speculation about criminal investigations into special forces officers from Lieutenant Colonel down, and Marles is reportedly considering administrative sanctions against some more senior officers, the simple fact is that there are no criminal investigations into more senior officers, nor has there ever been any intention to initiate criminal proceedings at that level.

This is the explicit “impunity gap” triggering the ICC’s jurisdiction, an impunity gap arising directly from Marles’ own bullshit, the inactions of his cabinet colleagues and the inadequacies of Australian authorities including the Office of the Special Investigator.

And what was Mr Marles’ response to the ICC referral? When cornered by journalists after Lambie’s speech, he dipped straight back to the wellspring of spin, “We regard this very seriously. We will seek to implement the recommendations of the Brereton Report to the fullest possible extent.” In other words, gormlessly regurgitating the exact reason for the Article 15 while expecting to be taken seriously.

Marles’ ignorant government and opposition front bench colleagues then followed suit, in stereo, on Seven Sunrise the next morning. Home Affairs Minister Clare O’Neil waffled, “we’ve come to government with a real commitment to making sure that the ADF addresses the issues raised in various inquiries,” while Shadow Finance Minister Jane Hume declared “there are processes under way but the opposition opposes the referral of the ADF senior military to the ICC.”

Given the referral has already been made, the only way to “oppose” it would be for Australia to withdraw from the ICC statute, rescind the relevant sections of the Commonwealth Criminal Code, and scrap the Commonwealth International Criminal Court Act in it’s entirety. Good luck with that, Senator Hume.

Until recently it would have been fair to conclude that the government’s credibility had been undermined by its perennial bungling through the Afghanistan war crimes accountability fiasco, but last week’s events now call its very legitimacy into question.

Government legitimacy in tatters

The first responsibility of any government is to uphold the rule of law, but this government has failed dismally and systematically on that front. Numerous compromised senior officials remain in their current appointments with total impunity from criminal accountability.

McBride’s prosecution in secret proceedings intended for terrorists continues, for the “offence” of blowing the whistle on exactly the high level criminality now under the consideration of the ICC Prosecutor.

The upshot of all this is that the Albanese government’s legitimacy is now in tatters, while the Prime Minister himself likely remains clueless as to why. Marles is clearly out of his depth and will remain a liability for as long as he remains in the thrall of the ADF generals. We need an adult in the room and we need that adult now.

Afghanistan war crimes: investigating the generals is the only way to end cover-up calls