How ICC prosecutor dumped war crime investigation into Australian command
· Michael West
International Criminal Court correspondence shows prosecutor dropped the war crime probe into Australia’s generals while under investigation for sexual abuse. A Stuart McCarthy exclusive.
International Criminal Court correspondence obtained by Michael West Media reveals that the ICC declined requests to investigate high-level command responsibility for alleged Australian SAS war crimes in April last year.
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The decision not to investigate detailed allegations of war crimes against Australia’s top generals during the war in Afghanistan was made by the ICC Prosecutor while he was under investigation for alleged sexual misconduct.
Under Australian and international law, the war crime of command responsibility is as serious as the alleged murders for which former SAS Corporal Ben Roberts-Smith was arrested by the Australian Federal Police on Tuesday.
Documents obtained by MWM show that the ICC Prosecutor – British Barrister Karim Khan –
considered numerous requests for a “preliminary examination”
into Australian command responsibility that it received over the period June 2023 to April 2025.
The requests included a written referral to the Prosecutor’s office made public by Tasmanian Senator Jacqui Lambie in 2023.
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Under the Australian Commonwealth Criminal Code and the ICC’s Rome Statute, commanders or civilian superiors are culpable for crimes by their subordinates where they knew or should have known the crimes were occurring but failed to take appropriate steps to prevent further crimes.
The charges laid against Roberts-Smith earlier this week include five counts of murder, during a series of incidents that took place in Uruzgan province, Afghanistan from April 2009 to October 2012.
Roberts-Smith has previously denied the allegations and has been remanded in custody since his arrest at Sydney airport.
In early September 2012, Afghan President Hamid Karzai publicly complained to the Australian government about the killings of local civilians Haji Raz Mohammad and Abdul Jalil during an SAS raid at Sola, also in Uruzgan province, on 31 August that year.
The raid took place during the hunt for rogue Afghan National Army soldier Hekmatullah, who days earlier had murdered Australian soldiers Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate.
Julia Gillard and Stephen Smith authorise
In response to Karzai’s complaint about the civilian deaths at Sola, Nine News reported at the time:
“Prime Minister Julia Gillard said the military operation … had been properly authorised, conducted with Afghan partners and in accordance with Australian rules of engagement.”
Then Defence Minister Stephen Smith – now the Australian High Commissioner to the UK – claimed in response to Karzai’s complaint that the two dead civilians were “confirmed as insurgents.”
MWM understands that this “confirmation” was provided by the notoriously corrupt Afghan warlord Matiullah Khan.
In June 2023 the ABC reported that the Sola killings were under investigation by the Office of the Special Investigator, the Australian agency established to investigate allegations of war crimes by Australian soldiers in Afghanistan.
The ABC report, based on leaked Defence documents and other sources, said that Roberts-Smith was “directly involved” in the killing of the 70-year-old Imam, Haji Raz Mohammed.
MWM has not been able to ascertain the outcomes of this OSI investigation and does not allege any misconduct on the part of Roberts-Smith during the Sola raid. The charges laid against Roberts-Smith on Tuesday do not include allegations arising from this particular incident.
MWM has approached Attorney-General Michelle Rowland to ascertain whether the Commonwealth Director of Public Prosecutions’ legal brief on the Roberts-Smith case included the events at Sola. But the charges against Roberts-Smith do include alleged murders that occurred soon afterwards at Darwan on 11 September 2012 and Syahchow on or around 20 October 2012.
An Australian former General named in one of the complaints received by the ICC was appointed by the Albanese government to a senior diplomatic post in Europe soon after his retirement from the defence force.
MWM will not name this official for legal reasons.
The ICC documents recently obtained by MWM show that in April last year Karim Khan decided not to proceed with an investigation into Australian generals’ command responsibility for the alleged war crimes, based on an assessment that
“The Office [of the Prosecutor] is aware of current domestic investigations by OSI in Australia into alleged war crimes committed by Australian forces in Afghanistan and has actively engaged with the relevant authorities in this regard.”
MWM has previously reported that an Australian Special Advisor to the ICC Prosecutor was paid more than $50,000 by the OSI for legal advice in 2021 and 2022, on the condition his advice was “settled in consultation with” the Attorney-General’s and Foreign Affairs departments.
Conflicted? Australia’s war crimes adviser at The Hague gets a paid gig from A-G and Foreign Affairs
Command responsibility
Under the “complementarity” principle, the ICC can investigate higher level command misconduct while domestic law enforcement agencies concurrently investigate alleged crimes by junior soldiers.
ICC documents show the Court’s officials have been engaging directly with Australian agencies since April 2019.
The OSI was established in early 2021, soon after the publication of Major General Paul Brereton’s inquiry report into the alleged war crimes, which in part sought to establish a blanket exemption for senior Australian commanders on the basis 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 at Darwan, as part of an aerial surveillance campaign across Afghanistan directly involving personnel from various Australian spy agencies.
Some sources have suggested that classified, high resolution imagery from MC-12 or similar platforms may have been used as evidence during the Brereton inquiry.
Who knew? High-level Afghanistan war crimes cover-up exposed
Numerous sources who were involved in the passage of intelligence and operational documents from the Uruzgan-based Australian Special Operations Task Group to higher level Australian military headquarters during this period have told MWM they were not interviewed by the Brereton inquiry despite proactively contacting Brereton’s staff.
Some say they have since contacted OSI but received no response. One former soldier who served in SOTG over this period told MWM this week:
“Politicians accepted the political benefits and military leadership accepted the medals and awards of these operations, but now escape the responsibility. Accountability cannot end with soldiers on the ground.”
OSI Director of Investigations Ross Barnett said of the ongoing OSI-AFP investigation at a press conference on Tuesday:
“I want to acknowledge the team, past and present, for the resilience, investigative acumen and impartiality they have demonstrated throughout this investigation.”
The ICC can exercise its jurisdiction to investigate war crimes allegations when national legal systems are “unable or unwilling” to conduct the appropriate investigations.
From November 2023 to May 2024, Defence Minister Richard Marles suppressed the final report of an independent panel established to oversee the implementation of Brereton’s recommendations.
The panel, chaired by former Inspector-General of Intelligence and Security Dr Vivienne Thom, concluded that it “did not agree with the Brereton Inquiry’s view that some accountability and responsibility could not fall on the most senior officers.”
Their final report, which
largely vindicated the concerns of military whistleblower David McBride,
was eventually released by Marles on the same day McBride was sentenced to more than five years’ jail for leaking classified information to the media. Marles said at that time that the Albanese government’s actions in response to the Brereton inquiry were “closed out.”
Richard Marles concealed war crimes report, denying justice for David McBride
Karim Khan’s decision in April last year not to investigate senior Australian officers for command responsibility was made while he was under internal ICC investigation for alleged sexual misconduct against a female aide. Several weeks later on 16 May, he temporarily stood aside from his role as ICC Prosecutor when the United Nations Office of Internal Oversight Services launched its own investigation into the allegations.
Associated Press reported last week that the UN investigation found Khan had “nonconsensual sexual contact with (the aide) in his office, at his private residence and whilst on mission.” Despite this finding, a panel of three ICC judges recently concluded that Khan could potentially resume his duties.
Khan has repeatedly denied the allegations of sexual misconduct.
A final decision as to Khan’s continued role with the ICC is now in the hands of the Assembly of States Parties, the body of member state representatives that oversees the ICC. Australia is one of the founding signatories to the Rome Statute, which established the ICC and provides its legal framework.
Roberts-Smith is expected to appear in court for a bail review hearing next Friday. Barnett and AFP Commissioner Krissy Barrett said on Tuesday that their investigations into further alleged war crimes were ongoing, but they did not specify whether these included crimes of command responsibility.
Under the Commonwealth Criminal Code, the maximum penalty for the war crime of command responsibility is life imprisonment, the same maximum penalty faced by someone convicted of murder.