Ben Roberts Smith, Australia’s highest-ranking living soldier was detained by the Australian Federal Police after landing at Sydney Airport following a flight to Brisbane. After a joint investigation by the Office of the Special Inspector and the New South Wales Police, he was charged in court with five counts of war crimes of murder.
Roberts-Smith, the only Australian charged with these crimes and one of the highest-profile cases in Australia’s history, is the second person to face such charges.
The road to get here has been long, winding and difficult. What’s next? Here is how we arrived at this point.
Media reporting and defamation cases
It is not the very first time Roberts Smith will be brought before a court to answer for war crimes.
He sued Fairfax Media and three journalists for defamation in 2018.
The media reported that Australian journalists Nick McKenzie and Chris Masters, as well as David Wroe had claimed that he was responsible for the murder of Afghani soldiers during his operations in Afghanistan.
Roberts-Smith always denies any wrongdoing.
The journalists relied upon their ability to prove in court, that they were accurate in reporting: Roberts-Smith did, indeed, commit war crimes.
The court ruled in 2023 that there was enough evidence to prove Roberts-Smith himself had murdered two Afghani soldiers and ordered or compelled a subordinate officer to kill another.
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Legal experts explain Ben Roberts Smith’s defamation judgment
The trial being a civil case, the lawyers for the journalists didn’t have to prove their allegations beyond reasonable doubt. The journalists only had to prove that their allegations were true based on the balance or probabilities.
The court must be convinced beyond reasonable doubt that Roberts-Smith is guilty of these charges in a criminal case, which he will face after answering a complaint brought against him by the AFP.
Maximum punishment for war crimes of murder: life in prison
Defence inquiry
Roberts-Smith is being investigated for a larger matter.
The Australian Military began an investigation in 2016 into allegations that Australian soldiers had committed war crimes against the Afghan people.
Paul Brereton was tasked by the Inspector-General, Australian Defence Force to prepare a report.
In 2020, four years after the Brereton Report was published, it will be made public. The report outlined 39 killings by Australian soldiers of civilians or prisoners.
It was because of the scale of the accusations that the Australian Government created the Office of the Special Inspector. This office will investigate further war crimes, and make recommendations for prosecution.
The report was released in late September. Since then, the progress made has been very slow.
Oliver Schulz, a German citizen arrested in 2023 and accused of killing a civilian Afghani. In 2020, the first evidence of this charge was made public.
His case will be tried next year. He has pleaded innocent.
What has taken so long?
The public began to speculate about the possibility of criminal charges being brought against Roberts-Smith as the story unfolded in civil court.
It is rare for Australian authorities to bring Australians before a court of law in relation to war crimes.
Although Australia has in the past prosecuted foreign war criminals, Schulz and Roberts Smith are the only Australians who have been both charged and arrested.
Even in the best circumstances, investigating war crimes can be a difficult task. Ross Barnett said that the Afghan political climate made the investigation of Roberts-Smith even more difficult. Australian boots were banned from the battlefield.
Investigators are likely to be extra cautious because Roberts-Smith is both a highly decorated soldier as well as a celebrity. Uncertainty about the outcome of a trial could undermine public confidence in all aspects of investigation and prosecution.
The service rendered by the military is highly regarded in Australia. Many Australians would like to see charges brought against ex-soldiers for crimes committed while they were serving.
What laws are at play?
Legally, the Australian authorities had no other choice than to pursue war crime allegations through a costly and long process.
The Australian Government joined the International Criminal Court in 2002. As a condition of membership, parties must adopt domestic legislation relating to war crimes.
The law also demands that governments investigate and, if necessary, prosecute those accused of war crimes.
The International Criminal Court can investigate and prosecute allegations of war crimes if a country is unwilling or incapable to do so.
In this instance, Australian authorities investigated the allegations, and because of the Office of the Special Inspector and the Australian Federal Police’s work, Roberts-Smith is going to be tried in Australia and not abroad.
Roberts-Smith, due to the severity of the crimes alleged, will likely be brought before a supreme state court as was the case for Schulz.
The trial will proceed like any criminal trial.
The crimes committed are interconnected with Australia’s membership in the International Criminal Court. War crimes, and Australia’s international obligations within this area have been incorporated into Australian law.
Australia in the global stage
It is both predictable and surprising that Roberts Smith has been charged.
It seemed likely that he’d be indicted after the defamation suit failed. In the judgment, Roberts Smith was found to have murdered or ordered the killing of Afghani officials in three separate instances.
Roberts-Smith was clearly going to be charged with a crime, even though the burden of evidence for her prosecution was lessened.
War crimes law appears to be at an international crossroads. As conflicts in the world unfold, it appears that governments around the globe – and even allies of Australia’s – are showing a growing disrespect for war crime law.
This upcoming trial of Australia’s highest decorated soldier who has been the face of its military for many years demonstrates an unexpected commitment to international laws that is out of sync with the majority of Australia’s partners.
