Ben Roberts-Smith: Why a decorated soldier’s war crimes case is so historic for Australia

He is Australia’s most decorated soldier. He is now at the center of a historic war crimes case

One of the most defining moments in Australian military history unfolded without fanfare on the tarmac at Sydney Airport, when Ben Roberts-Smith was calmly escorted off a plane and into a waiting police car.

The country’s most decorated living soldier and the most famous of his generation, Roberts-Smith was charged Tuesday with five counts of the war crime of murder.

It follows a high-profile civil defamation case, which revealed three years ago that the former Special Air Service (SAS) corporal and Victoria Cross recipient had unlawfully killed several unarmed Afghan detainees.

Roberts-Smith, who left the Australian Defense Force (ADF) in 2013, denies any wrongdoing and says the allegations are “egregious” and motivated by malicious and jealous peers.

His case – which will now be subject to higher criminal standards – has become the face of Australia’s reckoning over the country’s alleged conduct in Afghanistan, which has cast a pall over its much-mythologized military legacy.

“The fact that Roberts-Smith is now charged with war crimes – and not just one, but several war crimes – is a very significant cultural and social moment for a country which, for much of its history… has placed great importance on the exploits and contributions of members of its defense forces,” Professor Donald Rothwell told the BBC.

But the prosecution of such a highly decorated veteran is also an extraordinary moment for the world.

“We’ve never seen this before,” says Deane-Peter Baker, a specialist in special forces ethics.

“Unprecedented” prosecutions

When Roberts-Smith returned from Afghanistan in 2013, he was considered a national hero, having been awarded Australia’s highest military honor for single-handedly subduing Taliban fighters attacking his SAS platoon.

Plum speaking engagements and concerts, magazine covers and massive portraits, accolades and awards – like Father of the Year – followed.

But in 2018, Nine newspapers began publishing a series of articles alleging misconduct during his tenure in the SAS – allegations of unlawful beatings and killings of prisoners, intimidation of colleagues and domestic violence against a mistress.

He said it was all false, and in an effort to clear his name, he launched a high-profile legal battle. It lasted seven years, cost millions of dollars and was dubbed by some as Australia’s “trial of the century”.

He lost. Although allegations of domestic violence and some allegations of bullying were dismissed, a Federal Court judge ruled in 2023 that reports of him committing four murders were substantially true, a ruling that was upheld on appeal.

Roberts-Smith, 47, now faces even higher stakes if he is convicted on all five charges against him: life in prison and an unwanted place in history.

Victoria Cross recipients from other Commonwealth countries have faced criminal charges, but Roberts-Smith would be the first to be charged with a war crime.

“If you broaden the perspective and look at recipients of equivalent awards in other countries, it will be very difficult to find one who has been accused of a war crime,” says Baker, who reformed the ADF’s ethics training after reviewing its record in Afghanistan.

Why did the investigation take so long?

Roberts-Smith’s arrest was the culmination of a five-year investigation by a special watchdog set up after a landmark investigation into allegations of Australian war crimes in Afghanistan.

The 2020 Brereton report found “credible evidence” that elite soldiers unlawfully killed 39 people, recommending that 19 current or former members of the ADF be investigated.

A specialist team, called the Office of the Special Investigator (OSI), was created for this purpose – but progress has been slow.

OSI opened 53 investigations, of which 39 were finalized. So far it has only charged one other person, former SAS soldier Oliver Schulz.

Ross Barnett, director of investigations at OSI, said Tuesday they were facing “difficult circumstances” – which include limited preserved physical evidence and no cross-border police cooperation.

“OSI was tasked with investigating dozens of murders allegedly committed in the middle of a war zone in a country 9,000 kilometers from Australia,” he said.

“We can’t go to this country, we don’t have access to crime scenes… we don’t have photographs, location plans, measurements, projectile recovery, blood spatter analysis… we don’t have access to the deceased. There is no autopsy.”

Another level of complexity is added to the workload that weighs on the testimonies of so-called “brothers in arms.”

Although it was a handful of Roberts-Smith’s peers who came forward with the allegations against him, bringing members of the military to testify against each other goes against informal norms, Peter Stanley, former senior historian at the Australian War Memorial (AWM), told the BBC.

“Military culture is a very important factor in this,” he said.

“[But] potential witnesses who might otherwise have remained silent have come to the idea that their primary obligation is the truth, not any friendships they might have.

It is unlikely to be a coincidence that the two cases which came before the courts were both the subject of an investigation report, he adds, which could have revealed leads to police and helped facilitate prosecutions.

Barnett told reporters that Roberts-Smith’s arrest was an “important milestone” but that OSI was committed to completing its remaining investigations “as quickly as possible.”

Australian legal history

But the formal legal process is unlikely to be quick either.

“We have no contemporary experience of war crimes trials being conducted in Australia,” says Rothwell, one of Australia’s leading experts on international law.

“This is something new in terms of modern Australian legal history.”

The nature of the alleged offenses aside, Roberts-Smith’s case poses a range of other challenges for the justice system.

There are five separate accusations, all relating to events that happened some time ago – and each of them comes with a mountain of evidence.

Then there is the logistical difficulty of coordinating witnesses, some of whom may need their identities protected for reasons of safety or national security, as well as others who are based in Afghanistan and with whom communication is almost impossible under current conditions.

There is also the dilemma of dealing with the trove of potentially damaging information already available in the public record, which includes fair and accurate reporting of the 110 days of evidence presented in Roberts-Smith’s civil defamation case.

In rare cases, a judge alone may preside over a trial in Australia, but if the case is heard before a jury, finding one unfamiliar with Roberts-Smith will be a challenge.

“Inevitably this will muddy the waters somewhat,” Rothwell says.

All of this, also taking into account general delays in the Australian legal system, means a trial is “most certainly” years away, Rothwell says.

Schulz, for example, was indicted in March 2023 on a single count of murder, but won’t face trial until next year.

Nation’s military heritage under fire

Australia has long assumed that its troops are the kind of people you want to fight with, but also against: efficient, tough, courageous and loyal while being just and ethical.

The values ​​of the so-called Anzac spirit – known to have originated in a doomed offensive by Australian troops at Gallipoli, Turkey, during the First World War – are embedded in Australia’s sense of national identity.

But this long-running saga calls into question how the nation views itself and its strengths.

Investigations have shown that this undermines public confidence in the defense forces and is a source of distress for members of the ADF.

Adding to the concern is the pace of the investigations: organizations such as the Returned Services League say they have been unfair to everyone involved, including the families of alleged victims in Afghanistan.

“It must be exasperating for [those] who are facing these allegations, and even current members of the defense forces who may feel that their service is being called into question,” Stanley said.

But he says it would be much more painful if investigators were wrong, Stanley says.

“It would be tragic if they made accusations prematurely or if they did not present the clearest and most effective arguments.”

Some sections of Australia, however, are questioning whether these investigations and prosecutions are worth it.

They include Australia’s richest woman, Gina Rinehart, and former Prime Minister Tony Abbott, who said his “instinctive sympathy” remained with special forces soldiers in the Afghanistan campaign.

“I am very sorry that some of them have been subjected to a form of persecution by the country they served,” he said this week.

Former Prime Minister John Howard also issued a statement emphasizing that Roberts-Smith should be given the presumption of innocence.

“The arrest of Ben Roberts-Smith will touch the hearts of millions… This is a difficult issue for many, as it tests not only our respect for Australian values, but also the deep and special respect we have for those who risk their lives to keep us safe.”

For others, it is a source of comfort that Australia is showing leadership on these issues. Other countries, such as the United Kingdom, have announced their own Brereton-style investigations into allegations of misconduct.

“In a weird way, it’s a moment that Australians should be proud of,” Baker says.

“For a nation to hold a member of its armed forces to account – someone who has been considered one of our greatest living heroes – shows a commitment to ethics, decency and the rule of law that is sadly very rare among nations.”

“That deserves to be recognized and applauded, even if it’s embarrassing or sad for a lot of people,” Stanley adds.