After landing in Sydney airport following a flight from Brisbane, Australia’s most decorated living soldier, Ben Roberts-Smith, was arrested by Australian Federal Police. He’s faced court in New South Wales and been charged with five counts of the war crime of murder, following a years-long joint investigation between police and the Office of the Special Investigator.
Roberts-Smith is only the second Australian to be charged with such offences, and the most high-profile.
But the path to this point has been long and winding. Here’s how we got here, and what happens next.
The media reporting and defamation case
This is not the first time Roberts-Smith will face a court for alleged war crimes.
In 2018, he sued three journalists and Fairfax Media for defamation. This followed media reports by Australian journalists Nick McKenzie, Chris Masters and David Wroe, alleging he had murdered Afghani personnel during operations in Afghanistan.
Roberts-Smith has always denied any wrongdoing.
To defend themselves, the journalists relied on proving in court that their reporting was accurate: that Roberts-Smith had, in fact, committed war crimes.
In 2023, the court held there was sufficient evidence that Roberts-Smith had himself murdered two Afghani personnel and ordered or pressured a subordinate soldier to murder another.
Read more:
‘Dismissed’: legal experts explain the judgment in the Ben Roberts-Smith defamation case
Because that trial was a civil proceeding, lawyers representing the journalists did not need to prove the allegations beyond a reasonable doubt. They only needed to meet the lesser standard of proof that the allegations were true on the balance of probabilities.
In a criminal court, where Roberts-Smith will answer a case brought by the AFP, the court will need to be satisfied beyond reasonable doubt to convict him of the charges.
The maximum penalty for the war crime of murder is life imprisonment.
The defence inquiry
The allegations against Roberts-Smith are part of a much larger investigation process.
In 2016, the Australian military began investigating allegations Australian soldiers has committed war crimes in Afghanistan. The Inspector-General of the Australian Defence Force tasked Paul Brereton with preparing a report on it.
Four years later in 2020, the so-called Brereton report was released publicly. It outlined 39 murders of civilians and prisoners by Australian soldiers.
The scale of the allegations was such that the Australian government created the Office of the Special Investigator. The office is to further investigate war crimes and recommend the prosecution of people involved.
Since the release of the report, progress has been slow, given there appeared to be considerable evidence of wrongdoing.
In 2023, Oliver Schulz was arrested and charged with the killing of an Afghani civilian. Evidence of this accusation was first made public in 2020. He pleaded not guilty and his case goes to trial next year.
Why has it taken this long? » …