The arrest of Ben Roberts-Smith

The arrest of Ben Roberts-Smith

A major Australian news story broke around lunchtime on Tuesday, when the former soldier Ben Roberts-Smith was arrested at Sydney airport. He’s since been charged with 5 counts of the war crime of murder; the culmination of not only a lengthy investigation by federal authorities, but also media reports that date back even further. It’s a story that ties together our defence forces, defamation laws, some of our richest people and our history in Afghanistan… So we thought we’d take a look at:

• Who he is

• What’s happened so far

• And what might come next

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Remind me about Ben Roberts-Smith…
He’s Australia’s most decorated living soldier who served in Afghanistan 6 times between 2006 and 2012. During his time there, he was awarded many medals for bravery. The 2 big ones are the Medal for Gallantry in 2006, and the Victoria Cross for Australia - our highest military honour - which he received in 2011.

What led to him being awarded the Victoria Cross?
That was due to him risking his own life to draw fire away from other members of his patrol by taking on 2 enemy machine gun positions. The citation on the Anzac website describes it as selfless actions in circumstances of great peril. The award made him a famous name in Australia, and the accolades didn’t stop there…

What other honours has he received?
In 2013, he was discharged from the army and named Australian Father of the Year. Around the same time, he started working for Channel 7 Queensland, and he became the General Manager there in 2015.

So he was held in high esteem?
Very much so… One of the reasons all these accolades and awards are so important is because Roberts-Smith was very much held up as the best of the Australian Defence Forces - a hero that represented everything the military would like to be seen as - which is why it was so momentous when a series of reports in 2017 and 2018 alleged he had been involved in serious misconduct during his service in Afghanistan… 

What did the reports say?
Those reports came from Chris Masters and Nick McKenzie, 2 journalists working for the Sydney Morning Herald and The Age. The reports alleged that Roberts-Smith had been involved in the deaths of at least 5 unarmed Afghan civilians - and the accounts of what happened shocked many Australians… 

What were the allegations?
Not only did they detail at least 2 occasions in 2009 and 2012 where the former corporal allegedly shot unarmed Afghans who weren’t considered a threat at the time, they also claimed he commanded his soldiers to murder unarmed citizens, and that there was a culture of bullying within his unit. The reports also covered what allegedly went on within that unit - and how rookies weren’t really considered part of the squad until they’d killed someone… That was a practice they called ‘blooding’. 

Did they have any evidence of that happening?
The reports claimed that at least one of those was carried out in 2009 when 2 unarmed Afghan men were found hiding in a tunnel in the country’s Uruzgan province. One was elderly and one was living with a disability and wore a prosthetic leg. The reports said Roberts-Smith ordered a rookie soldier to shoot the elderly man, and he himself shot the man with the prosthetic leg - the papers published a photograph of a soldier from the squadron drinking from the man’s prosthesis. The alleged killings of the men form the basis of the first 2 charges of war crimes of murder Roberts-Smith is facing. And there’s more…

What else did the reports allege?
Another report was about the death of an Afghan farmer called Ali Jan… Roberts-Smith allegedly kicked him off a small cliff before ordering another officer to shoot him dead. That took place in the remote village of Darwan, which is also in the Uruzgan province. That’s the third charge against him. A fourth and fifth, which were alleged to have happened in 2012, make up the 5 charges that Roberts-Smith is facing.

What was his response to the media reports?
He’s always maintained his innocence - and he’s defended the killings of the 2 men in the tunnel as legal, saying they were insurgents trying to escape the area. He took legal action for defamation against the newspapers and 3 journalists in 2018.

What was the outcome?
In 2023, Federal Court Justice Anthony Besanko dismissed the case on the basis that the claims published were found to be substantially true. Roberts-Smith appealed, and that was also dismissed. To cut a long story short, his final attempt to appeal the decision was rejected by the High Court in September. 

When did the federal police investigation begin?
Investigations into Roberts-Smith and his unit began in 2021 by the Australian Federal Police and the Office of the Special Investigator (OSI) - that’s an independent body set up to investigate alleged war crimes committed by Australian troops in Afghanistan between 2005 and 2016.

Why was there a need for the OSI?
It came out of a report by Justice Paul Brereton - known as the Brereton Report, which was handed to the ADF in 2020, and it found credible information that Australian troops had committed war crimes within that 11-year window. 

How many investigations have begun?
The AFP and the OSI have begun 53 investigations related to the period. While 39 have been closed due to insufficient evidence, 10 investigations are ongoing. OSI Director of Investigations Ross Barnett says the arrest of Roberts-Smith was “a significant step” under what he called “challenging circumstances”. 

Just explain that a bit more…
Barnett added that officers couldn’t physically enter Afghanistan to investigate the claims against him, so they didn’t have access to the crime scene. He said: “We don't have photographs, site plans, measurements, the recovery of projectiles, blood spatter analysis, all of those things we would normally get at a crime scene”. Because of that lack of crime scene evidence, the case will rely heavily on the evidence of witnesses… but some legal experts say it could be tough for prosecutors to establish the higher legal standard of proof that’s required in criminal cases. 

What’s the difference there?
To explain, the standard of proof in a civil trial (like the defamation case) is on the balance of probabilities. In a criminal case, it’s much higher - a jury or judge must be satisfied that a crime has been committed beyond all reasonable doubt. And there’s nothing in the way of benchmarks to go on here - this is only the second time an ADF soldier has been charged with the war crime of murder. The first was in 2023 - that soldier’s trial is scheduled for February next year.

What has the reaction been to the arrest of Roberts-Smith?
In the wake of his arrest - which made headlines around the world - billionaire Elon Musk called the move to charge him with war crimes “insane”, while One Nation leader Pauline Hanson said she remains “steadfast” in her support of him. Another of his high-profile supporters is Australia’s richest person Gina Rinehart - she issued a statement questioning the justification of spending millions in taxpayer money to prosecute SAS veterans, saying she hopes Roberts-Smith’s “duty to our country … is never forgotten”. 

And on the other side of the fence?
The arrest and charging of soldiers involved in the alleged crimes in Afghanistan is something that the widow of Ali Jan, one of the alleged victims, has been calling for for a while. She told the Sydney Morning Herald that she wants “justice because I have been widowed … my children are now helpless.” Greens Senator David Shoebridge is another who’s weighed in, saying “This is a moment of accountability and highlights the appalling cost of war on all sides. No one should be above the law.”

What will happen to Roberts-Smith’s military honours?
That’s something that some sections of the community have been calling for since the allegations were first aired in the media, but PM Anthony Albanese so far hasn’t commented on whether they’ll be removed. It’s unlikely that would happen before the court proceedings wrap up, which could take a long time and may involve more than a hundred witnesses, like the defamation case did. In the meantime, the Australian War Memorial has confirmed it will update the text on its display about Roberts-Smith to reflect the charges brought against him. 

So what’s next?
Roberts-Smith is currently in custody. He has a bail hearing set for Friday, 17 April to decide whether he can live in the community until his case goes to trial. The charges he’s facing carry a maximum sentence of life imprisonment if he’s found guilty, so until a verdict is reached, his fate is in the hands of the courts.

Onto our Recommendations

Reading: This piece (paywall) by reporter Nick McKenzie follows Roberts-Smith’s journey from war hero to accused war criminal.

Listening: This podcast series by The Guardian called Ben Roberts-Smith v the media which follows the defamation case brought by Roberts-Smith against the Sydney Morning Herald, The Age, and the Canberra Times over reports by McKenzie and his colleague Chris Masters.

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Now that the Easter long weekend is done, you might be thinking about your next getaway - and this year's Sydney Comedy Festival could be just the ticket. It's the festival's 21st anniversary, so the line-up is massive: think international headliners at the Opera House and hidden gems in the Inner West. A great reason to book those flights and leave the entertaining up to others - you can have a look at the lineup and start planning out your itinerary now...

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