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Decorated Soldier Charged in Australia War Crimes Case

The controversy over Roberts-Smith being charged for his alleged actions is rooted in a politically polarized failure to understand the importance of rules of engagement in conflict zones.

This week, Australia’s most decorated living soldier was arrested. Ben Roberts-Smith, a former corporal in the Special Air Service (SAS) Regiment, had previously been awarded Australia’s highest military honor, the Victoria Cross, for his acts of gallantry in Afghanistan. Yet he is also accused of war crimes for separate actions in Afghanistan, for which he has now been charged.

The present charges are two counts of “war crime – murder” alleging that Roberts-Smith directly killed unarmed Afghan civilians who were not participating in hostilities. Alongside this, there are three counts of “abetting, abiding, and counselling or procuring murder” – alleging that he ordered or directed subordinates to unlawfully kill unarmed Afghan civilians. 

The case is centered on the conduct of war and how Australia adheres to the rules of engagement. Yet, the case has also become highly political, polarizing Australia with strong pushback from highly influential political and public figures who believe Roberts-Smith is being persecuted for political purposes. 

The saga involving Roberts-Smith has been ongoing for close to a decade. In 2018, he launched a defamation action against the publishers of The Sydney Morning Herald, The Age, and The Canberra Times, after they reported on allegations that he had committed war crimes in Afghanistan. 

The defamation case examined incidents during deployments between 2009 and 2012. Witness testimony from current and former soldiers alleged that Afghan prisoners and civilians had been unlawfully killed during operations. In 2023, Justice Anthony Besanko of the Federal Court of Australia dismissed Roberts-Smith’s claim, finding that the newspapers had proven the substantial truth of several key allegations on the civil standard of proof – the balance of probabilities.

Although the case was centered on defamation law rather than criminal guilt, the judgment concluded that it was more likely than not that Roberts-Smith had been involved in unlawful killings of detainees. The proceedings also overlapped with concerns raised in the Defence Department’s own inquiry into operations in Afghanistan, which found credible evidence of unlawful killings by Australian special forces. 

The controversy over Roberts-Smith being charged for his alleged actions is rooted in a failure to understand the importance of rules of engagement in........

© The Diplomat