Australian veteran convicted of Afghan war crimes remains behind bars
Melbourne, Australia — Australia’s most decorated living veteran, Ben Roberts-Smith, did not apply for bail when war crimes murder charges were listed against him in a Sydney court on Wednesday.
Roberts-Smith was awarded both the Victoria Cross and the Gallantry Medal for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with war crimes.
The allegations are as follows: military report released in 2020 that found evidence that elite Australian Special Air Service and Commando Regiment soldiers unlawfully executed 39 Afghan prisoners, farmers and other non-combatants. Nearly 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.
The charges against Roberts-Smith relate to the deaths of five Afghan men who died in 2009 and 2012 while he was serving 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 Australian forces were based.
On Tuesday he was charged with five counts of war crimes murder, police said. But the charges laid in court on Wednesday were two counts of war crimes murder and three counts of aiding or abetting war crimes murder. All charges carry the same potential maximum sentence of life in prison.
The charges allege that Roberts-Smith murdered a subordinate and caused his death in the village of Kakarak on April 12, 2009. He allegedly killed a subordinate in Darwan village on September 11, 2012.
Australian law defines war crime murder as an intentional killing.
In the context of an armed conflict, this refers to someone who is not taking an active part in the hostilities, such as a civilian, a prisoner of war, or a wounded soldier.
Prime Minister Anthony Albanese described Roberts-Smith’s arrest as a “difficult time” for the Australian Defence Force.
“We must be thankful every day for the men and women who wear our uniforms, who are prepared to make the ultimate sacrifice on behalf of our nation, to carry on our Australian lives. That does not change”, Albanese told Sky News television.
“It’s important not to politicize this, and I have no intention of commenting on the legal process,” Albanese said.
Opposition leader Angus Taylor called on the federal government, known as the Commonwealth of Australia, to pay for the legal defence of all military personnel prosecuted for war crimes, including Roberts-Smith.
Taylor told reporters, “It is imperative that the Commonwealth provide financial assistance to anyone who is prosecuted in this process, including Ben Roberts-Smith… that they receive the financial assistance they need to defend themselves and ensure that they have a fair trial.” “The presumption of innocence is important.”
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 people, as it tests not only our respect for Australian values, but also our deep and special reverence for those who have given their lives 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 “serious allegations”.
“These realities are deeply confronting for a close-knit and enduring community,” the association said in a statement.
Roberts-Smith, 47, spent the night in jail after being arrested at Sydney Airport on Tuesday morning and did not appear in court in person or via video link on Wednesday.
His lawyers did not enter pleas on the charges or apply for his release on bail. The case was adjourned until June 4.
A civil court: Similar allegations against Roberts-Smith have already been found credible in a defamation suit she faced in 2018 after newspapers published articles accusing her of multiple war crimes. In 2023, a federal judge rejected Roberts-Smith’s claims and ruled that he probably unlawfully killed four non-combatants in 2009 and 2012.
But whereas the civil court found that war crimes charges were mostly proven on the balance of probabilities, war crimes murder charges must be proven to a higher standard beyond reasonable doubt in a criminal court.
Media magnate Kerry Stokes helped fund Roberts-Smith’s civil court action. Roberts-Smith quit his job at Stokes as state manager of Seven West Media in 2023 after losing a defamation case.
During his defamation trial, Roberts-Smith testified that he had only killed armed Afghans and had not committed war crimes. He claimed he was the victim of lies from malicious fellow soldiers and the jealousy of others toward his medals.
Roberts-Smith is the second Australian veteran of the Afghanistan campaign to be charged with war crimes.
Former SAS soldier Oliver Schulze has pleaded not guilty to charges of war crimes murder. He is accused of shooting Afghan man Dad Mohammad three times in the head in a wheat field in Uruzgan Province in 2012.
Prosecutors and defence attorneys said Schultz’s trial was unlikely to take place before 2027.
In 2024, the government announced that several serving and former Australian military commanders their medals were taken away. On allegations of war crimes committed in Afghanistan.
A war crimes inquiry report made public in 2020 recommended holding commanders accountable for alleged misconduct by Australian special forces between 2005 and 2016.
