Australia’s most decorated living veteran, Ben Roberts-Smith, remains in custody after his legal team declined to apply for bail during a Sydney court appearance on Wednesday. The 47-year-old former Special Air Service (SAS) corporal is facing severe allegations regarding the unlawful killing of Afghan civilians during his service in the conflict.
The legal proceedings center on charges of war crime murder, marking a significant escalation in the pursuit of accountability for actions taken by elite Australian forces. Roberts-Smith, who was awarded both the Victoria Cross and the Medal of Gallantry, is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime via BBC/NPR/The Guardian.
The arrest of the former soldier occurred Tuesday morning at Sydney Airport, leading to his immediate detention. During the Wednesday listing, Roberts-Smith did not appear in person or via video link, and his lawyers did not enter pleas to the charges. The matter has been adjourned until June 4.
These criminal charges follow years of scrutiny and a 2020 military report which provided evidence that elite Australian SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers, and other noncombatants. Between 2001 and 2021, approximately 40,000 Australian military personnel served in Afghanistan, with 41 personnel killed during the campaign.
Details of the War Crime Murder Charges
The allegations against Roberts-Smith involve the deaths of five Afghan individuals in 2009 and 2012. Police allege that even as serving as an SAS corporal in Oruzgan province, Roberts-Smith either personally shot the victims or ordered a subordinate to do so.
While police initially stated on Tuesday that the veteran had been charged with five counts of war crime murder, the charges formally laid in court on Wednesday were modified. He now faces two counts of war crime murder and three counts of aiding or abetting a war crime murder. Under Australian law, all five charges carry the same potential maximum penalty: life in prison.
The specific allegations are tied to three distinct locations and dates:
- April 12, 2009: Allegations of killing and causing a subordinate to kill at Kakarak village.
- September 11, 2012: Allegations of causing a subordinate to kill at Darwan village.
- October 20, 2012: Allegations of killing and causing a subordinate to kill at Syahchow village.
Within the Australian legal framework, war crime murder is defined as the intentional killing, within the context of an armed conflict, of a person not taking an active part in hostilities. This includes civilians, prisoners of war, or wounded soldiers.
Political and Military Fallout
The arrest has triggered a complex reaction across the Australian political spectrum, highlighting the tension between honoring military service and upholding international law. Prime Minister Anthony Albanese described the arrest as a “difficult time” for the Australian Defense Force.
Speaking to Sky News, Albanese emphasized that the nation should remain thankful for those who wear the uniform and make sacrifices for the country, stating, “That doesn’t change.” However, he stressed the importance of the legal process, adding, “It’s important that this not be politicized, and I have no intention of commenting on what is a legal process.”
Conversely, Opposition leader Angus Taylor has called for the federal government to provide financial support for the legal defenses of all military personnel prosecuted for war crimes, including Roberts-Smith. Taylor argued that the “presumption of innocence is crucial” and that the Commonwealth must ensure a fair trial through financial assistance.
Former Prime Minister John Howard, who first committed Australian troops to Afghanistan in 2001, noted in a statement that the case tests the limits of Australian values and the “deep and special reverence” held for those who risk their lives for national safety.
The Australian Special Air Service Association expressed that these developments are “deeply confronting” for the military community, noting that some members may be required to testify against former comrades while others must defend themselves against “grave allegations.”
Civil Court Precedents and Other Prosecutions
This criminal case follows a significant civil ruling in 2023. Roberts-Smith had previously brought a defamation suit after newspapers published articles in 2018 accusing him of war crimes. A federal judge rejected his claims, ruling that it was likely Roberts-Smith unlawfully killed four noncombatants in 2009 and 2012.
It is important to note the legal distinction between the two proceedings: the civil court found the allegations credible based on the “balance of probabilities.” However, the current criminal charges must be proven to a higher legal standard—”beyond reasonable doubt.”
Following the loss of the defamation case, Roberts-Smith resigned from his position as a state manager at Seven West Media in 2023. The civil action had been partially funded by media magnate Kerry Stokes.
Roberts-Smith is not the only veteran facing such charges. Former SAS soldier Oliver Schulz has pleaded not guilty to a charge of war crime murder involving the 2012 shooting of an Afghan man, Dad Mohammad, in Uruzgan province. His trial is not expected to accept place before 2027.
Further systemic accountability measures were seen in 2024, when the Australian government announced that several serving and former military commanders had been stripped of medals due to allegations of war crimes committed in Afghanistan. These actions align with recommendations from the 2020 investigation report into special forces misconduct between 2005 and 2016.
Key Case Timeline and Facts
| Event/Detail | Information |
|---|---|
| Current Charges | 2 counts of war crime murder; 3 counts of aiding/abetting war crime murder |
| Maximum Sentence | Life imprisonment |
| Arrest Date | Tuesday (prior to Wednesday court listing) |
| Relevant Incidents | Deaths of 5 Afghans in 2009 and 2012 |
| Previous Ruling | 2023 Federal Judge found unlawful killings “likely” in civil court |
| Next Court Date | June 4 |
The case remains adjourned, with the next confirmed legal checkpoint scheduled for June 4. We will continue to monitor the proceedings as they develop.
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