The International Criminal Court is unlikely to prosecute alleged Australian war crimes – here's why

For the first time, Australians have been referred to the International Criminal Court (ICC) for investigation into alleged Afghan war crimes.

That Senator Jacqui Lambie has instigated this process is even more extraordinary as it’s the first time any Australian MP has taken that step.

Lambie’s ICC referral focuses on the legal responsibility of Australian Defence Force (ADF) commanders who knew, or should have known, about alleged war crimes committed by their forces in Afghanistan.

This move by Lambie may not lead to any formal action by the ICC, but it does shine a spotlight on how Australia is responding to these claims.

Why the ICC is unlikely to act

The court will no doubt acknowledge receipt of Lambie’s referral, but it is doubtful whether it would commence an active investigation given the ongoing work of the Office of the Special Investigator established in 2021, with Mark Weinberg as the lead investigator.

In a Senate Estimates hearing in May, Chris Moraitis, the office’s director-general, said up to 40 alleged acts are currently being investigated by his office and the Australian Federal Police.

In March, the first charge was brought against a former Australian soldier, Oliver Schulz. He was accused of the war crime of murder under the Commonwealth Criminal Code.

No further details have been released as to current and former defence personnel who are under investigation. But the Office of the Special Investigator’s mandate is to consider all ADF conduct in Afghanistan from 2005-16, which will include senior officers and commanders.

Read more: Why investigating potential war crimes in Afghanistan just became much harder – and could take years

The office is also not limited to the allegations investigated and reported on in the 2020 Brereton Report. It has its own mandate and can conduct its own investigations.

The ICC was only ever intended as a court of last resort in these matters. That means it will only investigate and prosecute people for alleged war crimes when a country is unwilling or unable to do so itself.

This may arise if the state is incapable of pursuing prosecutions because of disorder or unrest, or because of the collapse of a national judicial system. None of these situations currently exist in Australia.

The ICC is also incredibly busy with its ongoing investigation into war crimes allegations in Ukraine, which are occurring in real time on a near-daily basis.

This is on top of its other work. To date, the ICC prosecutor has received some 12,000 requests to investigate alleged war crimes committed worldwide over the past 20 years.

What the ICC is investigating in Afghanistan

The legal landscape for war crimes prosecutions has radically changed in recent decades due to the creation of the ICC.

The court has jurisdiction with respect to war crimes committed by the nationals of state parties, such as Australia. Its jurisdiction extends to “grave breaches” of the laws of war, which sets a high threshold for the most serious and egregious acts.

Presently, the ICC prosecutor is already investigating alleged crimes against humanity and war crimes committed by various sides in the Afghan conflict including Australian, UK and Taliban forces and the Islamic State - dating back to the early 2000s. The US is not a member of the court and does not respect its jurisdiction.

With regard to Australian soldiers, Lambie’s concern is that the Office of the Special Investigator is focused on troops and officers, not ADF commanders.

International criminal law and the ICC recognise “command responsibility”, which is the legal responsibility of commanders when their forces commit war crimes. However, commanders must have directed such conduct or had reasonable knowledge that such conduct was being committed.

Australia has been an enthusiastic supporter of the ICC, but its recognition of ICC jurisdiction was contingent on a formal declaration in 2002 made by the Howard government which provided, in part, that

no person will be surrendered to the court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes.

Additionally, Australia would only surrender a person to the ICC for prosecution following the Commonwealth attorney-general issuing a certificate.

The government response to the Brereton Report – with its establishment of the Office of the Special Investigator – means it is taking the lead in prosecuting war crimes allegations. As such, an Australian soldier or commander would only be handed over to the ICC in the most exceptional of cases.

Read more: Stripping medals from soldiers is murky territory, and must not distract from investigating alleged war crimes

Australia’s experience in war crimes prosecutions

Over the past seven years, we have gotten a much clearer picture of the alleged actions of Australian soldiers in Afghanistan. Much was revealed in investigative reports by the Nine newspapers, which was highlighted during former SAS corporal Ben Roberts-Smith’s recent defamation case.

The legal system will likely soon be dealing with a wave of war crimes charges arising from the Brereton Report and the work of the Office of the Special Investigator and Australian Federal Police.

Australia has no recent history of war crimes trials involving Australian soldiers. However, following the second world war, Australia was involved in the International Military Tribunal for the Far East in Tokyo, which was established to prosecute Japanese war crimes suspects. Japanese soldiers were also prosecuted between 1945 and 1951 in Australian military courts.

More recently, Ivan Polyukhovich, a former Nazi soldier who became an Australian citizen in 1958, was put on trial in Australia for alleged war crimes committed in Ukraine between 1942-43. He was ultimately acquitted by the South Australian Supreme Court in 1993.

Australia may now be on the brink of its first modern war crimes trial, though, with the prosecution of Oliver Schulz.

The Australian legal system is about to be severely tested. As difficult as these legal processes may well be for the nation, the public will have a legitimate expectation these allegations are scrutinised in court. Lambie’s actions have reinforced that expectation.