How ICC prosecutor dumped war crime investigation into Australian command

International Criminal Court cables show the prosecutor abandoned a war crimes investigation against Australian generals while they were under investigation for sexual abuse. A. Stuart McCarthy special.

International Criminal Court correspondence obtained by Michael West Media It reveals that the ICC rejected requests to investigate senior command responsibility for Australian SAS war crimes allegations in April last year.

The decision not to investigate detailed allegations of war crimes committed against Australia’s top generals during the war in Afghanistan was made by the ICC Prosecutor, who is under investigation for alleged sexual harassment.

Under Australian and international law, the war crime of command responsibility is as serious as the alleged murders that led to the arrest of former SAS Corporal Ben Roberts-Smith by the Australian Federal Police on Tuesday.

Documents received by MWM ICC Prosecutor British Lawyer Karim Khan

Evaluated numerous “preliminary review” requests

Australian command responsibility between June 2023 and April 2025.

Among the demands was Tasmanian Senator Jacqui Lambie’s written application to the prosecutor’s office in 2023.

Australia’s war crimes in Afghanistan a serious challenge for Albanian government

Under Australia’s Commonwealth Criminal Code and the ICC’s Rome Statute, commanders or civilian superiors are guilty of offenses committed by their subordinates where they knew or should have known that offenses were being committed but failed to take appropriate steps to prevent further offences.

expenses The charges against Roberts-Smith earlier this week include five murders that occurred during a series of incidents in Afghanistan’s Uruzgan province from April 2009 to October 2012.

Roberts-Smith has previously denied the allegations and has been detained since his arrest at Sydney airport.

In early September 2012, Afghan President Hamid Karzai publicly complained to the Australian government about the killing of local civilians Haji Raz Mohammed and Abdul Jalil during an SAS raid on Sola, also in Uruzgan province, on 31 August that year.

The raid took place during the capture of rogue Afghan National Army soldier Hekmatullah, who had killed Australian soldiers Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate a few days earlier.

Julia Gillard and Stephen Smith authorized

Nine News in response to Karzai’s complaint about civilian deaths in Sola reported In that case:

“Prime Minister Julia Gillard said the military operation was appropriately authorized, conducted with Afghan partners and in accordance with Australian rules of engagement.”

In response to Karzai’s complaint, then Defense Minister Stephen Smith (now Australia’s High Commissioner to the United Kingdom) claimed that the two dead civilians were “confirmed to be insurgents”.

MWM He understands that this “verification” was provided by the notoriously corrupt Afghan warlord Matiullah Khan.

ABC in June 2023 reported It was stated that the Sola murders were investigated by the Special Investigation Bureau, the Australian agency established to investigate allegations of war crimes committed by Australian soldiers in Afghanistan.

The ABC report, based on leaked Defense documents and other sources, said Roberts-Smith was “directly involved” in the murder of 70-year-old Imam Haji Raz Mohammed.

MWM He was unable to establish the results of this OSI investigation and does not allege that Roberts-Smith committed any misconduct during the Sola raid. The charges against Roberts-Smith on Tuesday do not include allegations stemming from this specific incident.

MWM He approached Attorney General Michelle Rowland to find out whether the Director of Public Prosecutions’ legal briefing on the Roberts-Smith case included the events at Sola. However, the charges against Roberts-Smith also include allegations of murders that occurred in Darwan on September 11, 2012, and in Syahchow on or about October 20, 2012.

A former Australian general named in one of the complaints received by the ICC was appointed to a senior diplomatic post in Europe by the Albanian government shortly after retiring from the defense force.

MWM For legal reasons I will not name this official.

Recently obtained ICC documents MWM It shows that in April last year Karim Khan decided not to proceed with the investigation into the command’s responsibility for the alleged war crimes of Australian generals, based on the following assessment:

“Office [of the Prosecutor] “It is aware of OSI’s current domestic investigations in Australia into alleged war crimes committed by Australian forces in Afghanistan and is actively engaging with the relevant authorities in this regard.”

MWM has previously reported that the Australian Special Adviser to the ICC Prosecutor had been paid more than $50,000 by the OSI for legal advice in 2021 and 2022, on the condition that his advice was “determined in consultation” with the Attorney-General and Foreign Affairs departments.

Is there a conflict? Australia’s war crimes adviser at The Hague gets paid work from AG and Foreign Office

Command responsibility

Under the principle of “complementarity,” while the ICC investigates high-level command misconduct, local law enforcement can simultaneously investigate alleged crimes committed by petty officers.

ICC documents show Court officials have been in direct contact with Australian institutions since April 2019.

The OSI was established in early 2021, shortly after the publication of Major General Paul Brereton’s investigation report into alleged war crimes; this report sought to create a blanket exemption for senior Australian commanders, partly on the grounds that they “did not have a sufficient degree of command and control to attract the principle of command responsibility”.

MWM has previously revealed that a US Air Force MC-12 ‘Liberty’ surveillance aircraft flew in support of the 11 September 2012 SAS raid in Darwan as part of an Afghanistan-wide aerial surveillance campaign that directly involved personnel from various Australian spy agencies.

Some sources have suggested that secret, high-resolution images taken from the MC-12 or similar platforms may have been used as evidence during the Brereton investigation.

Who knew? Cover-up of high-profile war crimes in Afghanistan exposed

Multiple sources involved in the transmission of intelligence and operational documents from the Uruzgan-based Australian Special Operations Task Group to senior Australian military headquarters during this period told MWM that they were not interviewed in the Brereton investigation, despite proactively contacting Brereton personnel.

Some say they later contacted OSI but received no response. A former soldier who served in SOTG during this period said: MWM This week:

“Politicians accepted the political benefits of these operations, and military leaders accepted the medals and awards of these operations, but now they are avoiding responsibility. Responsibility cannot end with the soldiers in the field.”

OSI Director of Investigations Ross Barnett spoke about the ongoing OSI-AFP investigation. press conference On Tuesday:

“I would like to thank the team, past and present, for their resilience, investigative acumen and impartiality throughout this investigation.”

The ICC can use its jurisdiction to investigate allegations of war crimes where national legal systems are “unable or unwilling” to conduct appropriate investigations.

From November 2023 to May 2024, Defense Minister Richard Marles suppressed the final report of an independent panel set up to oversee the implementation of Brereton’s recommendations.

It is chaired by former Inspector General of Intelligence and Security Dr. The panel, chaired by Vivienne Thom, concluded that she “disagreed with the view of the Brereton Inquiry that some responsibilities and responsibilities could not fall on the most senior officers”.

final reports,

largely confirmed the concerns of military whistleblower David McBride,

he was eventually released by Marles on the same day McBride was sentenced to more than five years in prison for leaking classified information to the media. Marles said at the time that the steps taken by the Albanian government in response to the Brereton investigation were “covered”.

Richard Marles hid war crimes report, denying justice to David McBride

Karim Khan’s decision in April last year not to investigate senior Australian officers due to command responsibility was taken while he was under internal ICC investigation for allegations of sexual harassment against a female aide. A few weeks later on May 16, he temporarily stepped down as ICC Prosecutor when the United Nations Office of Internal Oversight Services launched its own investigation into the allegations.

Associated Press reported Last week, the UN investigation found that Khan “had non-consensual sexual intercourse with (the aide) in his office, his private home and while on duty.” Despite this finding, a panel of three ICC judges recently concluded that Khan could potentially continue in his role.

Khan has repeatedly denied allegations of sexual harassment.

The final decision on Khan’s continued role at the ICC is currently in the hands of the Assembly of States Parties, a body made up of member state representatives that oversees the ICC. Australia is a founding signatory of the Rome Statute, which established the ICC and provides its legal framework.

Roberts-Smith is expected to appear in court next Friday for a bail review hearing. Barnett and AFP Commissioner Krissy Barrett said in a statement Tuesday that their investigations into other alleged war crimes were ongoing, but did not specify whether those included crimes of command responsibility.

Under the Commonwealth Criminal Code, the maximum penalty for the war crime of command responsibility is life imprisonment; this is the same maximum penalty faced by someone convicted of murder.