Australia’s most-decorated living soldier Ben Roberts-Smith has lost a historic defamation case against three newspapers that accused him of war crimes in Afghanistan.
The outlets were sued over articles alleging he killed unarmed prisoners.
The civil trial was the first time a court has assessed accusations of war crimes by Australian forces.
A judge said four of the six murder allegations – all denied by the soldier – were substantially true.
Justice Anthony Besanko found the newspapers had not been able to prove other reports that he assaulted a woman with whom he was having an affair, or that he had threatened to report a junior colleague if he did not falsify field reports. Additional allegations of bullying were found to be true, however.
Mr Roberts-Smith, who left the defence force in 2013, has not been charged over any of the claims and no findings have been made against him in a criminal court, where there is a higher burden of proof. The 44-year-old was not present for Thursday’s judgement.
An elite Special Air Service (SAS) soldier, Mr Roberts-Smith is Australia’s most famous living war veteran.
He received the country’s highest military award – the Victoria Cross – in 2011 for having single-handedly overpowered Taliban machine-gunners who had been attacking his platoon.
But Mr Roberts-Smith’s public image was tarnished in 2018 when The Sydney Morning Herald, The Age and The Canberra Times started publishing articles about his misconduct between 2009 and 2012.
The elite soldier argued five of the killings reported by the newspapers had occurred legally during combat, and the sixth did not happen at all.
Justice Besanko found the media outlets had not proven two allegations, but upheld their reporting on four murders.
These included:
A handcuffed farmer the soldier had kicked off a cliff – a fall which knocked out the man’s teeth, before he was subsequently shot dead
A captured Taliban fighter who was shot at least 10 times in the back, before his prosthetic leg was taken as a trophy and later used by troops as a drinking vessel
Two murders which were ordered by Mr Roberts-Smith to initiate or “blood” rookie soldiers.
Outside court, the outlets called the judgement a “vindication” for their reporting.
Investigative reporter Nick McKenzie – who wrote the stories alongside Chris Masters and David Wroe – summed it up in one word: “justice”.
“It’s a day of justice for the brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully and a liar.”
“[And] today is a day of some small justice for the Afghan victims of Ben Roberts-Smith.”
The case was dubbed by some as “the trial of the century”, lasting 110 days and rumoured to have cost up to A$25m ($16.3m, £13.2m).
More than 40 witnesses – including Afghan villagers, a government minister and a string of pseudonymised current and former SAS soldiers – gave extraordinary and at times bizarre evidence about every facet of Mr Roberts-Smith’s life.
There was talk of laptops burned in backyards and classified information buried inside a child’s pink lunchbox, as well as damaging testimony from a private investigator, Mr Roberts-Smith’s ex-wife, and his ex-girlfriend.
But the case also exposed some of the inner workings of Australia’s top special forces. The trial heard from soldiers who said any potential misconduct was rarely reported due to a “code of silence” within the regiment, while others defended their actions as necessary.
Defence Minister Richard Marles declined to comment on the case, because it is a civil matter.
But war historian Peter Stanley told the BBC ahead of the judgement that the case was “a litmus test” for allegations of Australian wrongdoing in Afghanistan.
“The Ben Roberts-Smith episode is just a precursor to the major series of war crimes investigations, allegations, prosecutions, and possibly convictions that we’ll see over the next few years.”
A landmark report in 2020 found credible evidence that Australian forces had unlawfully killed 39 civilians and prisoners in Afghanistan from 2007 to 2013.
Three years on, local media has said that more than 40 soldiers are being investigated for their roles in alleged war crimes. But so far charges have only been laid against one, Oliver Schulz.
Source: BBC
