Ben Roberts-Smith Arrested and Charged
Ben Roberts-Smith, Australia's most decorated living soldier, was arrested at Sydney airport and charged with war crimes. The Australian Federal Police (AFP) and the Office of the Special Investigator announced the investigation details in Sydney on Tuesday after midday.
Roberts-Smith is expected to face five counts of war crime – murder, related to three separate incidents in Afghanistan. The maximum penalty for these offences is life imprisonment. He was charged and scheduled to appear in bail court on Wednesday. Roberts-Smith spent Tuesday night in a cell at Silverwater prison, reportedly alone.
Background of Allegations and Previous Legal Proceedings
The Victoria Cross recipient was previously found, using the civil standard of the balance of probabilities, to have murdered unarmed civilians while serving in the Australian Special Air Service Regiment (SAS) in Afghanistan. Roberts-Smith has consistently denied any wrongdoing.
The three incidents allegedly involve Afghan nationals being shot dead by Roberts-Smith or a subordinate under his command while he was present, according to AFP Commissioner Krissy Barrett.
Australia understands the charges relate to allegations involving the deaths of two Afghan males at a location known as Whiskey 108 in Kakarak in 2009, the death of a man named Ali Jan in 2012 in Darwan, and the deaths of two civilians at Syahchow in 2012.
The federal court previously found, on the balance of probabilities, that Roberts-Smith kicked Ali Jan in the chest, causing him to fall backwards over a cliff before landing on the ground. The court also found that Roberts-Smith ordered another soldier to shoot Ali Jan dead.
Details of the Allegations
Commissioner Barrett, who did not name Roberts-Smith directly, stated it would be alleged that the 47-year-old was involved in the deaths of Afghan nationals between 2009 and 2012 under circumstances constituting war crimes.
“It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in ,”
“It will be alleged the victims were detained, unarmed and were under the control of ADF members when they were killed.”
Barrett confirmed Roberts-Smith was arrested at the domestic terminal after traveling from Brisbane to Sydney on Tuesday morning. She declined to comment on whether he was suspected to be boarding an international flight.
Investigation Challenges and Process
Ross Barnett, director of investigations at the Office of the Special Investigator, said the probe began in 2021. He described it as a “careful and professional investigation under challenging circumstances” and emphasized the seriousness of the charges.
“The challenge for investigators is that … we are 9,000km [away]. The challenge for investigators is that because we can’t go to the country, we don’t have access to the crime scene. So we don’t have photographs, site plans, measurements, the recovery of projectiles, or blood spatter analysis.
“All of the things that we would normally get at a crime scene. There’s no postmortem. Therefore, there’s no official cause of death. So there are a lot of practical challenges that confront the investigators.”
Roberts-Smith’s Military Career and Legal Battles
Roberts-Smith, once celebrated as the country’s most decorated Afghanistan veteran, sued three newspapers over allegations that he committed war crimes, murdered unarmed civilians, and bullied comrades. He lost the defamation case, where a judge found on the balance of probabilities that he committed four murders while serving in the Australian military.
He appealed to the full bench of the federal court but was unsuccessful. The High Court refused to hear a further appeal.
Prime Minister Anthony Albanese declined to comment on Tuesday, stating:
“I have no intention of prejudicing a matter that clearly is a legal matter, and that’s before the courts, and any comment would do so.”
Roberts-Smith’s Military Honors and Public Profile
Roberts-Smith, a former SAS corporal, was awarded the Victoria Cross for “most conspicuous gallantry” during the battle of Tizak in 2010. He was also named father of the year and served as chair of the government’s Australia Day council.
Published Allegations and Court Findings
In 2017 and 2018, The Age, The Sydney Morning Herald, and The Canberra Times published a series of articles alleging Roberts-Smith engaged in war crimes, including murdering civilians and ordering subordinate soldiers to execute civilians in so-called “blooding” incidents.
Roberts-Smith sued the newspapers, claiming their stories portrayed him as a criminal who broke the moral and legal rules of military engagement and disgraced his country and its army. The newspapers defended their reporting as true, including allegations of murder complicity.
The most high-profile allegation proven in court involved a 2012 mission to the southern Afghan village of Darwan. Roberts-Smith marched a handcuffed Ali Jan to the edge of a 10-metre-high precipice overlooking a dry riverbed. Ali Jan survived the fall but was badly injured and attempted to get to his feet when Australian soldiers reached him.
The court found Roberts-Smith ordered a soldier under his command, referred to as Person 11, to shoot Ali Jan dead. Ali Jan’s body was then dragged to a nearby field.
Another major allegation concerned a 2009 raid on a bombed-out compound code-named Whiskey 108. Two men were found hiding in a tunnel: an elderly man and a younger man with a prosthetic leg. Both men surrendered unarmed.
Justice Anthony Besanko found Roberts-Smith ordered a junior soldier to execute the older man and forcibly manhandled the disabled man outside the compound walls, throwing him to the ground and firing his para minimi machine gun into his prone body, killing him.
The disabled man’s prosthetic leg was later taken by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar, the Fat Ladies’ Arms.
Australian War Memorial Response
On Tuesday, the Australian War Memorial announced it would review the wording of the interpretive panel associated with a display of Roberts-Smith’s uniform, equipment, and medals.
The memorial stated it would continue to monitor developments and consider updates as appropriate.
Additional Context
Former Australian SAS soldier [Name Redacted] has also been implicated in murdering an Afghan man in a war crime.
