Oceania | Security | Oceania

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 conflict zones, built on a misguided belief that war zones are places where restraints are unnecessary or a hindrance. 

The Australian Defence Force (ADF) emphasizes strict rules of engagement because they ensure military operations are conducted within clear legal and ethical boundaries. These rules translate international humanitarian law and government authorization into practical guidance for soldiers, defining when and how force can be used. In complex environments such as counterinsurgency operations, where the distinction between combatants and civilians may be unclear, clear rules help personnel make rapid decisions that remain lawful and consistent with the professional standards expected of a modern military.

These rules of engagement also protect ADF personnel themselves, setting clear boundaries about the use of force being directed at ADF personnel. Even if enemy combatants don’t adhere to these rules themselves, the rules remain critical to ensure that the ADF is able to act with moral and legal legitimacy. 

Australian forces frequently operate alongside international partners and within coalition missions, where adherence to international law is essential for trust and cooperation with these partners. This makes these rules vital for Australia’s credibility as an ally. Alongside this, failure to comply with these rules risks undermining the broader political objectives of a mission, eroding support for actions within local populations, as well as the Australian public.  

This should be clearly understood by the public, and especially by politicians and the media. Unfortunately, Australia is now following other Western countries into an environment of intense polarization, where every issue is reduced to a binary political fight. This has led to a questioning of the rules of engagement in combat, and their portrayal by some as unfair restraints being placed on Australian soldiers. 

What the prosecution of Roberts-Smith hopes to establish is the importance of these principles. In a political climate where public debates simplify complex ethical decisions into partisan bickering, the commitment to such principles is even more vital. There is an essential need for the conduct of war to place itself outside of political tribalism and for those who see the opportunity for political agitation in everything that happens to understand the danger in their own behavior. 

Get to the bottom of the story

Subscribe today and join thousands of diplomats, analysts, policy professionals and business readers who rely on The Diplomat for expert Asia-Pacific coverage.

Get unlimited access to in-depth analysis you won't find anywhere else, from South China Sea tensions to ASEAN diplomacy to India-Pakistan relations. More than 5,000 articles a year.

Unlimited articles and expert analysis

Weekly newsletter with exclusive insights

16-year archive of diplomatic coverage

Ad-free reading on all devices

Support independent journalism

Already have an account? Log in.

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 conflict zones, built on a misguided belief that war zones are places where restraints are unnecessary or a hindrance. 

The Australian Defence Force (ADF) emphasizes strict rules of engagement because they ensure military operations are conducted within clear legal and ethical boundaries. These rules translate international humanitarian law and government authorization into practical guidance for soldiers, defining when and how force can be used. In complex environments such as counterinsurgency operations, where the distinction between combatants and civilians may be unclear, clear rules help personnel make rapid decisions that remain lawful and consistent with the professional standards expected of a modern military.

These rules of engagement also protect ADF personnel themselves, setting clear boundaries about the use of force being directed at ADF personnel. Even if enemy combatants don’t adhere to these rules themselves, the rules remain critical to ensure that the ADF is able to act with moral and legal legitimacy. 

Australian forces frequently operate alongside international partners and within coalition missions, where adherence to international law is essential for trust and cooperation with these partners. This makes these rules vital for Australia’s credibility as an ally. Alongside this, failure to comply with these rules risks undermining the broader political objectives of a mission, eroding support for actions within local populations, as well as the Australian public.  

This should be clearly understood by the public, and especially by politicians and the media. Unfortunately, Australia is now following other Western countries into an environment of intense polarization, where every issue is reduced to a binary political fight. This has led to a questioning of the rules of engagement in combat, and their portrayal by some as unfair restraints being placed on Australian soldiers. 

What the prosecution of Roberts-Smith hopes to establish is the importance of these principles. In a political climate where public debates simplify complex ethical decisions into partisan bickering, the commitment to such principles is even more vital. There is an essential need for the conduct of war to place itself outside of political tribalism and for those who see the opportunity for political agitation in everything that happens to understand the danger in their own behavior. 

Grant Wyeth is a Melbourne-based political analyst specializing in Australia and the Pacific, India and Canada.

Afghanistan war crimes

Australia Afghanistan

Australia in Afghanistan

Australia war crimes investigation

© The Diplomat