Ben Roberts-Smith, the most decorated surviving Australian soldier, lost a landmark defamation case against three newspapers that accused him of war crimes in Afghanistan.
The publications were sued due to articles claiming that he murdered unarmed captives.
The civil trial marked the first time a court evaluated allegations that Australian forces committed war crimes.
The soldier rejected all six homicide allegations, but a judge found four to be true.
These comprised:
- A soldier kicked a handcuffed farmer off a precipice, causing the man’s teeth to be knocked out; he was then shot dead.
- A captured Taliban fighter was shot in the back at least ten times before his prosthetic limb was taken as a trophy and later used as a drinking vessel by troops.
- Mr. Roberts-Smith ordered or agreed to the commission of two homicides to “blood” or initiate new soldiers.
Justice Anthony Besanko determined that the newspaper had failed to establish two additional murder allegations. Mr. Roberts-Smith was accused of assaulting his mistress and threatening a younger worker.
However, it was determined that he had also unlawfully assaulted captives and harassed his peers.
Mr. Roberts-Smith, who retired in 2013, has not been accused in criminal court, where the burden of proof is higher. The 44-year-old defendant was absent from Thursday’s hearing.
After the decision, a Taliban spokesman stated that the case was evidence of “uncountable crimes” committed by foreign forces in Afghanistan, but added that he did not have faith in any international court to investigate them.
From 2001 to 2021, Australian personnel were deployed to Afghanistan. The Australian Minister for Defence, Richard Marles, declined to comment on the case, citing its civil nature.
Mr. Roberts-Smith is the most renowned living Australian war veteran and served with the Special Air Service Regiment (SAS).
For fighting Taliban machine-gunners attacking his platoon, he received the Victoria Cross in 2011.
In 2018, The Sydney Morning Herald, The Age, and The Canberra Times published articles about his 2009–2012 misconduct.
The soldier claimed that five of the six media-reported murders occurred during combat, while the sixth did not.
His defamation case, labeled “the trial of the century” by some, lasted 110 days and was rumored to have cost up to A$25 million ($16.3 million or £13.2 million).
More than 40 extraordinary witnesses, including Afghan villagers, a government minister, and a series of current and former SAS soldiers, testified about every aspect of Mr. Roberts-Smith’s existence.
However, the case also revealed some of the highly classified inner workings of Australia’s elite special forces.
Soldiers testified during the trial that potential malfeasance was rarely reported because of a “code of silence” within the regiment. While others defended their actions as necessary.
Subpoenaed witnesses were forced to testify, and three declined to testify on certain claims for fear of self-incrimination.
The majority of the evidence against Mr. Roberts-Smith consisted of eyewitness testimonies and soldier recollections of conversations. Media outlets argued that their witnesses had no reason to deceive Justice Besanko.
The news outlets, speaking outside the Federal Court in Sydney, described the verdict as a “vindication” for their reportage.
“It’s a day of justice for the brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully, and a liar,” said Nick McKenzie, co-author of the stories with Chris Masters and David Wroe.
“[And] today is a day of some small justice for the Afghan victims of Ben Roberts-Smith.”
The Afghanistan Human Rights and Democracy Organisation also lauded the role of investigative journalism in “discovering the truth and increasing public awareness” regarding the country’s events.
Kerry Stokes, a media mogul who employs Mr. Roberts-Smith at rival outlet Seven West Media, stated that the verdict was “not consistent with the man I know.”
Mr. Stokes, who loaned the soldier money to finance his legal case, stated, “I know this will be particularly difficult for Ben, who has always maintained his innocence.” Local media reported that Mr. Roberts-Smith had offered to surrender his Victoria Cross as collateral.
A new review showed that Australian forces killed 39 Afghan civilians and detainees between 2007 and 2013.
In recent years, accusations of war crimes have also been made against British and American soldiers.
According to local news sources, dozens of Australian servicemen are being investigated for alleged war crimes. However, only one person, Oliver Schulz, has been charged thus far.
Military historian Peter Stanley dubbed Mr. Roberts-Smith’s case “a litmus test” for Australian misbehaviour in Afghanistan before the decision.
In the coming years, war crimes investigations, allegations, prosecutions, and probable convictions will follow the Ben Roberts-Smith event.
