Ben Roberts-Smith: will more Afghanistan war crimes trials follow?

Australia’s most decorated soldier, Ben Roberts-Smith, has lost a defamation case against newspapers that accused him of war crimes in Afghanistan in a landmark ruling with widespread implications for future criminal trials.

The civil trial was “the first time a court has assessed accusations of war crimes by Australian forces”, said BBC News. The case – “dubbed by some as ‘the trial of the century’ – lasted 110 days and is thought to have cost up to A$25 million (£13.2 million).

Roberts-Smith, 44, who served as a corporal in the Special Air Service (SAS) and with the Australian Defence Force (ADF), “shot to fame in 2011”, said The Washington Post, when he was awarded the Victoria Cross for saving troops from the Taliban. The medal earned the 6ft 8in soldier an invitation to Queen Elizabeth II’s funeral last year.

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But the “myth began to unravel” in 2018, when three Australian newspapers began reporting that he had been involved in the unlawful killing of six Afghans while serving between 2009 and 2012.

Roberts-Smith sued The Sydney Morning Herald, The Age and The Canberra Times in 2021, denying wrongdoing in five killings and claiming that the sixth had not happened.

What did the papers say?

Four of the six murder allegations were “substantially true”, decided Federal Court Justice Anthony Besanko, in “a landmark defamation ruling”, said the 9news site. “The applicant broke the moral and legal rules of military engagement and is therefore a criminal,” ruled the judge.

Roberts-Smith has not been charged with any criminal offences. “We will consider the lengthy judgment that his honour has delivered and look at issues relating to an appeal,” his lawyer, Arthur Moses, said.

Roberts-Smith is “a war criminal, a bully and a liar”, said Nick McKenzie, one of the reporters who wrote the stories, alongside Chris Masters and David Wroe. “Today is a day of some small justice for the Afghan victims.”

The trial “raised fresh allegations of atrocities committed by Australian special forces in Afghanistan”, said The Washington Post. It included “often startling” testimony from nearly 40 witnesses, including Roberts-Smith’s ex-wife, who alleged that he had buried evidence in the garden.

Roberts-Smith’s legal defence – that he was the victim of jealous colleagues – “transformed the defamation proceedings into a de facto war crimes trial”, the paper said.

According to the judge’s summary, it is “substantially true” that Roberts-Smith murdered an innocent farmer by kicking him off a cliff and ordering soldiers to shoot him. In another case, he reportedly machine-gunned a captured Taliban fighter in the back, before taking his prosthetic leg to Australia for his troops to drink beer from.

The case “has been a reminder of the failures of foreign forces in Afghanistan”, wrote Shadi Khan Saif, a Melbourne-based Afghan journalist, for The Guardian, and of “how disengaged and indifferent Australians can be towards events that happen in the rest of the world”.

But in the region of Afghanistan where Roberts-Smith and US coalition forces fought the Taliban before they retook power in 2021, “the scars of the war inflicted by an ‘invading army’ are, for many, much deeper than those created by the oppressive regime”.

The story “goes on beyond this judgment”, said the executive editor of The Age and The Herald, Tory Maguire. “We will continue to hold people involved in war crimes to account. The responsibility for these atrocities does not stop with Ben Roberts-Smith.”

What next?

Roberts-Smith, who did not attend the judgment in Sydney, now faces “a massive legal bill, possible war crimes prosecution, and career ruin”, said Daily Mail Australia, as some politicians called for him “to be stripped of his medals”.

The case has been adjourned until 29 June to allow for consideration of costs.

The trial is “just a precursor to the major series of war crimes investigations, allegations, prosecutions, and possibly convictions that we’ll see over the next few years”, war historian Peter Stanley told BBC News. The case was “a litmus test” for allegations of Australian wrongdoing.

An investigation into alleged war crimes by the ADF during the war in Afghanistan, commonly known as the Brereton report, published its findings in 2020. It found evidence of 39 murders of civilians and prisoners, by or instructed by the Australian special forces, and subsequently covered up.

In March this year, a former SAS soldier named Oliver Schulz became the first current or former ADF member to be charged with “war crime – murder” under Australian law, for allegedly shooting an unarmed Afghan in 2012. The charge carries a maximum penalty of life imprisonment.

The Office of the Special Investigator, created in response to the Brereton report, is now focusing on Roberts-Smith and two other SAS soldiers, according to The Age.

The US military warned Australia’s defence chief that allegations of war crimes in Afghanistan may affect future cooperation with the SAS, reported ABC.