Ben Roberts-Smith: Australia's most decorated living soldier loses defamation case for war crimes in Afghanistan

An Australian federal judge has found that Ben Roberts-Smith, Australia’s most decorated living soldier, had murdered or was complicit in the murder of several unarmed civilians and prisoners while serving in the armed forces in Afghanistan - amounting to war crimes.

The judgement came after an intense civil defamation trial that spanned an entire year.

Roberts-Smith, who holds the Victoria Cross, the most prestigious honour in the Australian military, sued three newspapers – the Age, the Canberra Times and the Sydney Morning Herald, over articles alleging he killed unarmed civilians.

The judge determined that four of the six murder allegations were substantially true.

Justice Anthony Besanko found that in 2012 Roberts-Smith had kicked Ali Jan -  a farmer who was handcuffed - off a cliff in Darwa. Roberts-Smith then ordered a junior soldier to shoot Jan dead. 

The judge also found that Roberts-Smith was guilty of the 2009 murder of a captured Taliban prisoner with a prosthetic leg, who was shot at least 10 times in the back with a para-machine gun. After the murder, the prisoner’s prosthetic leg was taken as a trophy and used by troops as a drinking vessel. 

Besanko also ruled that the ex-SAS corporal was guilty of two murders he ordered to initiate or “blood” two rookie soldiers.

Roberts-Smith belonged to the elite Australian Special Air Services (SAS) and was awarded the Victoria Cross for “most conspicuous gallantry” during the battle of Tizak in 2010.

These rulings against Roberts-Smith, who did not attend the final hearing, were civil and no criminal charges were brought against him. He will likely have to pay the newspapers millions of dollars in costs, subject to appeal.

It could also pave the way for criminal charges to be brought against Roberts-Smith and other Australian soldiers accused of war crimes.

Most damningly for the SAS veteran during the trial, which involved over 100 days of evidence presented against him, was that several of his ex-SAS comrades, accused of murder on separate missions, refused to give evidence on the grounds of self-incrimination.

The trial in general shed light on war crimes against Afghan civilians, which have been accused by human rights activists of being covered up, especially the practice of “blooding”.  Coalition forces have been accused of covering up such acts. 

The Brereton Report, which was released in 2020, uncovered evidence of 39 murders committed by Australian military personnel in Afghanistan between 2005 and 2016.

The report, which was initiated by the Inspector-General of the Australian Defence Forces (ADF), found that "blooding" was a common practice in the ADF. The practice involves junior soldiers being ordered by their superiors to carry out their first kill, often targeting civilians or prisoners.

Earlier this year, 41-year-old former SAS solider Oliver Schulz was arrested for war crimes after footage aired by ABC TV showed him allegedly shooting dead an Afghan man lying prone with his hands in the air. 

Roberts-Smith continues to deny all allegations of murder and is likely to appeal the court’s rulings.

According to Brown University’s Costs of the War Project, at least 46,000 civilians died as a result of the war in Afghanistan but the true death toll could be much higher. 

Agencies contributed to this report