Decorated veteran remains behind bars on Afghan war crime charges

Ben Roberts-Smith arrives at the Federal Court in Sydney (2021) [AP Photo]

Australia’s most decorated living veteran, Ben Roberts-Smith, did not apply for bail when the war crime murder charges against him were listed in a Sydney court yesterday.

Roberts-Smith was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.

The charges follow a military report released in 2020 that found evidence that elite Australian Special Air Service and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.

Veteran accused of 5 unlawful deaths

The allegations against Roberts-Smith relate to the deaths of five Afghan people who died in 2009 and 2012 while he served in Afghanistan as an elite SAS corporal. Police allege he either shot his victims or ordered a subordinate to shoot them in Uruzgan province where Australia’s forces were based.

Police said he had been charged Tuesday with five counts of war crime murder. But the charges laid in court were two counts of war crime murder and three counts of aiding or abetting a war crime murder. All charges carry the same potential maximum sentence of life in prison.

The charges allege Roberts-Smith killed and caused a subordinate to kill at Kakarak village on April 12, 2009. He allegedly caused a subordinate to kill at Darwan village on Sept. 11, 2012. He allegedly killed and caused a subordinate to kill at Syahchow village on Oct. 20, 2012.

Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person who is not taking an active part in the hostilities, such as a civilian, prisoner of war or a wounded soldier.

Albanese: Is a ‘difficult time’

Prime Minister Anthony Albanese described Roberts-Smith’s arrest as a “difficult time” for the Australian Defense Force.

“We should give thanks every day for the men and women who wear our uniform, who are prepared to make the ultimate sacrifice on behalf of our nation, to keep our Australian way of life going forward. That doesn’t change,” Albanese told Sky News television.

“It’s important that this not be politicized, and I have no intention of commenting on what is a legal process,” Albanese added.

Opposition leader Angus Taylor called on the federal government, known as the Commonwealth of Australia, to pay for the legal defenses of all military personnel prosecuted for war crimes, including Roberts-Smith.

“It is an imperative that the Commonwealth provide anyone who’s prosecuted in this process, including Ben Roberts-Smith, with … the financial support they need to defend themselves and to ensure that there is a fair trial,” Taylor told reporters. “The presumption of innocence is crucial.”

Howard pays tribute to troops

John Howard, who as Australia’s then-prime minister first committed Australian troops to fight in Afghanistan in 2001, said Roberts-Smith’s arrest would emotionally impact millions of Australians.

“This is a difficult issue for many, as it tests to the limits not only our respect for Australian values, but the deep and special reverence we have for those who put their lives on the line to keep us safe,” Howard said in a statement.

The Australian Special Air Service Association, which represents current and former members of the elite regiment, said some may be required to testify against former comrades. Others must defend themselves against “grave allegations.”

“These realities are deeply confronting for a close and enduring community,” the association said in a statement.

Roberts-Smith, 47, spent the night in jail after he was arrested at the Sydney Airport on Tuesday morning, and he did not appear in court either in person or by video link yesterday.

His lawyers did not enter pleas to the charges or apply for his release on bail. The case was adjourned until June 4.

Civil court upholds similar allegations

A civil court has already found similar allegations against Roberts-Smith credible in a defamation suit he brought after newspapers published articles in 2018 accusing him of a range of war crimes. In 2023, a federal judge rejected Roberts-Smith’s claims and ruled that he likely killed four noncombatants unlawfully in 2009 and 2012.

But while the civil court found the war crimes allegations were mostly proven on a balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt.

Media magnate Kerry Stokes helped fund Roberts-Smith’s civil court action. Roberts-Smith quit his job as a state manager of Stokes’ Seven West Media in 2023 after losing the defamation case.

During his defamation trial, Roberts-Smith had testified that he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed he has the victim of spiteful fellow soldiers’ lies and of others’ envy of his medals.

Roberts-Smith is the second Australian veteran of the Afghanistan campaign to be charged with a war crime. ROD McGUIRK, MELBOURNE, MDT/AP