Updated ,first published
Ben Roberts-Smith has been charged with multiple war crimes over the alleged murders of unarmed Afghan civilians and prisoners in what will become the most significant military prosecution in Australian history.
The charges, five counts of war crime – murder, followed Roberts-Smith’s surprise arrest at Sydney Airport on Tuesday and after a joint investigation between the Office of the Special Investigator (OSI) and the Australian Federal Police (AFP). The offence carries a maximum penalty of life imprisonment.
He has been refused police bail and will spend Tuesday night in custody at Silverwater Correction Complex before appearing before a bail division court on Wednesday.
“It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan,” AFP Commissioner Krissy Barrett told media on Tuesday in Sydney.
“It will be alleged the victims were detained, unarmed and were under the control of ADF members when they were killed.”
The charging of the highly decorated former special forces soldier comes after a five-year investigation secured the co-operation of SAS eyewitnesses. They are expected to testify that they saw Roberts-Smith executing, or directing junior soldiers to execute, defenceless detainees during his time in Afghanistan between 2006 and 2012.
The 47-year-old was arrested at Sydney Airport after he arrived on a flight from Brisbane on Tuesday morning. AFP officers were seen waiting at the arrivals gate when his plane arrived just after 11am.
Prime Minister Anthony Albanese refused to answer repeated questions on Roberts-Smith’s arrest at a press conference.
“I have no intention of commenting on a matter that’s clearly before the courts,” Albanese said, later adding that his commentary may prejudice the case.
“I’m not going to confirm anything to do with the legal matter. That is a matter that is very important, that there not be political engagement in what is a matter that is now the subject of legal proceedings.”
The federal police said the charges against Roberts-Smith, which he has previously strongly disputed, would allege that he:
When Roberts-Smith was allegedly involved in the 2012 executions, he was the most decorated Commonwealth soldier to serve in Afghanistan. If proved, the allegations the Victoria Cross recipient faces may mean he will be stripped of his medals and jailed, potentially for life.
Barrett said it had been a “complex” five-year investigation into a small cohort of the ADF and their actions while fighting on behalf of Australia.
“The alleged conduct related to these charges is confined to a very small section of our trusted and respected ADF, which helps keep this country safe,” she said.
“The overwhelming majority of our ADF do our country proud. Today’s charges are not reflective of the majority members who serve under our Australian flag with honour, distinction and with the values of a democratic nation.”
While only a jury can decide Roberts-Smith’s guilt, a prosecution would mark a spectacular fall from grace of a one-time war hero fiercely backed by politicians, including former defence minister and Australian War Memorial chairman Brendan Nelson and One Nation leader Pauline Hanson, as well as billionaire Kerry Stokes.
Hanson on Tuesday said she remained “steadfast” in her support of Roberts-Smith. She said it was a disgrace that he had been arrested in front of his daughters. “Ben, his immediate and broader defence family need the Australian people’s support right now and I will not abandon him like so many other politicians,” she posted on X.
Former prime minister Tony Abbott said it was wrong to judge the actions of “men in mortal combat by the standards of ordinary civilian life”.
“If Ben Roberts-Smith transgressed, why wasn’t this picked up prior to his gallantry awards and why wasn’t any culture of brutality towards prisoners detected by his more senior officers and dealt with quickly, rather than being allowed to fester, as has been alleged, for over a decade?” Abbott said in a statement.
The Australian War Memorial, which still features Roberts-Smith in a heroic light in both its physical Afghanistan gallery and online, has said it will “review the wording” of an interpretive panel associated with the display. However, “the display of his uniform, equipment and medals remains in place”.
Roberts-Smith has already unsuccessfully contested claims he committed war crimes, including murders, in a defamation case he fought all the way to the High Court.
In September, the High Court refused him leave to appeal a full Federal Court decision that, in turn, backed the 2023 judgment of Federal Court judge Anthony Besanko that The Age and Sydney Morning Herald had proved a number of the same allegations true to the civil standard.
Roberts-Smith, the son of a former West Australian Supreme Court judge and major general, joined the army in 1996 and became Australia’s most famous modern soldier after he was awarded the VC for his actions in a 2010 battle.
He has always denied any wrongdoing, and it is anticipated that he will fight criminal charges.
Official sources, speaking anonymously because they are not authorised to comment, said the Commonwealth Director of Public Prosecutions (CDPP) had recently contacted Attorney-General Michelle Rowland seeking authorisation for a prosecution, as required when an alleged war crimes case is deemed worthy of criminal charges.
Over the past five years, a team of experienced state and federal police detectives, recruited from various Australian homicide and other elite squads as part of the highly secretive OSI, quietly built the case against Roberts-Smith.
The OSI was created in early 2021 to investigate the involvement of the SAS regiment in war crimes in Afghanistan.
According to confidential sources, OSI detectives have tapped phones in Australia and offshore, planted listening devices, conducted raids and, most significantly, convinced SASR soldiers who had allegedly witnessed or were implicated in Roberts-Smith’s war crimes to become prosecution witnesses.
The case against Roberts-Smith is sprawling, but not circumstantial: its foundation is in the witness accounts of decorated SAS soldiers and Afghan war veterans.
Told of the looming charges, one SAS eyewitness told this masthead that he and other veterans had decided to assist the OSI because no Australian soldier was above the law, no matter how grim the fallout.
“Well, it’s all about the truth, and I think, honour. And we lost men in Afghanistan, like regular army fellas and the commandos. And how do you honour them? By telling the truth,” he said, speaking anonymously due to confidentiality requirements.
He alleged the war crime he had witnessed involved a defenceless detainee and occurred “after the dust has settled”.
“There’s no fog of war, there’s no bullets flying around … this was completely contrary to our mission, we weren’t there to kill civilians or people who didn’t deserve to die,” he said.
Some of the witness accounts expected to feature in a criminal trial have already been aired in the unsuccessful civil defamation action that Roberts-Smith launched in 2018 against this masthead. The soldiers’ testimony was pivotal to the Federal Court’s determination, upheld by the Full Court of the Federal Court, that Roberts-Smith had murdered unarmed detainees and civilians.
The three senior judges of the Full Court of the Federal Court ruled Roberts-Smith was a war criminal to the civil “balance of probabilities” standard. Ruling on the alleged execution of a man with a prosthetic leg, they said: “The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder.”
Roberts-Smith’s application for leave to appeal to the High Court was refused.
The impending criminal charges mark the latest chapter of an extraordinary saga that began when The Age and Sydney Morning Herald began a major investigation into Roberts-Smith in late 2017.
The investigation unearthed many of the alleged war crimes later probed by the OSI. These were detailed in dozens of articles published between 2018 and 2023.
In 2019, this masthead and 60 Minutes interviewed two serving SAS whistleblowers and travelled to Afghanistan to interview the wife of Ali Jan, the Afghan civilian allegedly kicked off a cliff in September 2011 and executed on the orders of the famous soldier shortly after the cliff kick.
In her interview from a hotel in Kabul, Ali Jan’s wife Bibi Dhorko demanded that the Australian government hold to account the soldier who had allegedly brutalised and murdered her husband.
“He didn’t side with anyone and never had a gun,” she said. “He was living in the mountain and doing his work, only going occasionally to the village if we needed any supplies.”
Roberts-Smith, although unnamed, was also at the heart of a landmark 2016 probe into “rumours” of SAS wrongdoing in Afghanistan, commissioned by then army chief Angus Campbell and led by senior judge Paul Brereton.
When he finished his inquiry in November 2020 and published his redacted report, Brereton revealed he had uncovered credible information that about two dozen SAS soldiers committed 39 alleged executions of civilians and prisoners.
This masthead’s investigations and Brereton’s work prompted then-prime minister Scott Morrison to create the OSI. Earlier this year, the OSI was told that the CDPP had authorised the brief of evidence against Roberts-Smith.
It ruled the OSI had gathered enough evidence to prosecute Roberts-Smith for war crimes, and about a fortnight ago submitted the brief to Rowland for final approval.
On Tuesday morning, 17 years after he allegedly executed an elderly man with a prosthetic leg in an Easter Sunday operation in southern Afghanistan, and five years after the Taliban’s return to power, Roberts-Smith was handcuffed and taken to a holding cell.
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