THE International Criminal Court should investigate Australian top brass for war crimes in Afghanistan, an Australian senator says.

Independent Senator Jacqui Lambie, a former soldier, sent an Article 15 Communication (a mechanism for any individual to report suspected war crimes) to the court in The Hague today.

The court does not usually investigate cases where the responsible country has itself launched an investigation — the reason that in 2020 it dropped a case against Britain for war crimes in Iraq, despite finding a “reasonable basis” to believe that British soldiers had committed crimes including unlawful killings, torture and rape.

Australia has conducted its own investigation into troops’ behaviour when part of the 20-year US-led occupation of Afghanistan that ended with the superpower’s humiliating retreat in 2021. 

A probe by Major General Paul Brereton found that Australian troops had unlawfully killed 39 Afghan prisoners, farmers and civilians. It gathered evidence of “blooding” — where officers instructed soldiers to kill prisoners in order to give them their first kill — special forces carrying extra weapons to plant on murdered civilians to justify their deaths, and raids on villages where members of the Australian SAS killed civilians indiscriminately.

SAS soldier Oliver Schulz became the first soldier formally charged with an illegal killing in March, accused of murdering an Afghan farmer in his wheat field in 2012. 

The most highly decorated soldier in the military, Ben Roberts-Smith — another SAS veteran — is also under police investigation, and has lost a defamation case against newspapers which reported on four unlawful killings he is accused of.

But Ms Lambie says the resulting prosecutions have all targeted low-ranking soldiers while “senior commanders got a free pass.

“Our diggers were thrown under the bus,” she said, using Australian slang for an ordinary soldier.

“There’s a culture of cover-up at the highest levels of the Australian Defence Force. It is the ultimate boys’ club,” she charged.

Her lawyer Glenn Kolomeitz said that General Brereton did not investigate the role of commanding officers in the crimes documented. 

The international court could find that they “knew or should have known” what was happening. Mr Kolomeitz said Australian officers going on trial in The Hague was unlikely, but he hoped a probe would prompt the Australian authorities to investigate the matter themselves.