In the aftermath of Senator Jacqui Lambie's courageous yet reluctant communication to the prosecutor of the International Criminal Court, the usual battery of experts rolled out in the media to sell we ignorant masses the law and, in so doing, to reinforce their expertise and primacy in all things international law.
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Unfortunately, what is being sold is the same lemon Major-General Paul Brereton sold the Australian government. What is being pitched is the myth that the ICC can't assume jurisdiction over Australia's higher commanders because Australia is not "unwilling or unable" to investigate or prosecute the commanders.
This goes to the issue of complementarity which underpins the operations of the ICC and its foundational law, the Rome Statute. Complementarity, in essence, gives the state party, in this case, Australia, the first bite of the cherry when it comes to investigating or prosecuting war crimes.
The sales pitch from Major-General Brereton and others is what has been termed the slogan version of complementarity.
They previously tried to say that, because Major-General Brereton contemplated the criminal liability of the commanders, the ICC cannot investigate them. The higher commanders have not been investigated to date.
To try to say that the Brereton administrative inquiry, and its fundamentally flawed findings on the command responsibility of the higher commanders - the aptly termed "blanket exemption" from liability - is somehow a criminal investigation satisfying the complementarity requirements, is inconsistent with what the court itself has said regarding genuine investigations.
The experts are now pitching the line that, because the Office of the Special Investigator is potentially willing and able to investigate the higher commanders, the ICC cannot do so.
Again, the slogan version of complementarity is being sold to a gullible audience and a naive government and, again, the court itself has been highly critical of this approach.
We practitioners know that, in order to properly apply the law, you often need to go beyond the black-letter law of a statute and actually read cases.
The cases at the ICC tell us that, before you look at the unwillingness or inability of a country to investigate or prosecute, you must look at whether the country is actively investigating the matter.
The inactivity of Australia, in investigating the liability of the higher commanders, is the trigger - not vague notions of potential willingness or ability to investigate.
The court has said that, "in case of inaction, the question of unwillingness or inability does not arise". More scathingly, the ICC has equated this reliance on willingness and ability to investigate with attempts by the country to "enable the suspect[s] to evade justice".
Further, the experts have told the political "leaders" of our major parties that, because other investigations are ongoing with the OSI, the issue of the liability of the higher commanders is beyond the jurisdiction of the ICC. With a sense of relief, due to their own inactivity in this regard, they have swallowed this pitch hook, line and sinker.
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There is nothing tangible, concrete and progressive in the cop out that the OSI is able to investigate anything and is not bound by the recommendations of Major-General Brereton.
The question is, are the higher commanders currently being investigated by the OSI in a tangible, concrete and progressive way? The answer is a resounding no.
By spruiking this test of the jurisdiction of the ICC over our higher commanders, these experts and the politicians to whom they feed this convenient falsity are, in practical effect, restraining the ICC from exercising its jurisdiction.
This restraint is on the basis of Australia's theoretical willingness and ability to investigate and prosecute the higher commanders, notwithstanding its evidenced inaction to date.
It is clear that Australian authorities have no intention to conduct a criminal investigation.
That inaction is sheltering the higher commanders from culpability or, even, genuine scrutiny as to culpability, it is sustaining their impunity, and it is being enabled by the dangerously flawed advice and commentary of the usual experts - the guardians of international law in Australia.
- Dr Glenn Kolomeitz is the principal of an international humanitarian law/international criminal law consultancy. He is a former NSW police officer, Australian Army officer, and military prosecutor and is on the ICC's list of professional investigators.
