Updated ,first published
Ben Roberts-Smith has been arrested on multiple counts of killing unarmed Afghan civilians and prisoners in what is believed to be the most significant war crimes prosecution in Australian history.
Roberts-Smith is expected to be charged Tuesday with five counts of war crimes – murder following a joint investigation between the Office of Special Investigation and the Australian Federal Police. The offense of war crimes – murder carries a maximum penalty of life imprisonment.
“It will be alleged that the victims were not participating in hostilities at the time of their alleged killings in Afghanistan,” AFP Commissioner Krissy Barrett told media on Tuesday in Sydney.
“It is alleged the victims were restrained, unarmed and under the control of ADF members when they were killed.”
The arrest of the former special forces soldier comes after a five-year investigation into the co-operation of SAS witnesses who are expected to claim that Roberts-Smith himself killed, and ordered the execution of, at least half a dozen defenseless prisoners during his time in Afghanistan between 2006 and 2012.
The 47-year-old was arrested at Sydney Airport after arriving on a flight from Brisbane on Tuesday morning. AFP officers were seen waiting at the arrival gate for QF515 when it arrived just after 11am.
Addressing a press conference at Parliament House in Canberra, Prime Minister Anthony Albanese refused to answer repeated questions about Roberts-Smith’s arrest.
“I have no intention of commenting on an issue that is open before the court,” Albanese said, later adding that his comments could affect the case.
“I will not confirm anything related to the legal issue. That is a very important thing, that there should be no political involvement in the issue that is now being dealt with.”
Roberts-Smith’s investigation focused on allegations, which he strongly disputes, involving allegations that he:
When Roberts-Smith allegedly ordered the 2012 execution, he was the most decorated Commonwealth soldier to serve in Afghanistan. If proven, the charges the Victoria Cross recipient is facing could mean being stripped of his medals and jailed for life.
Barrett said it had been a “complex” five-year investigation into the small group of ADF and their conduct in fighting on behalf of Australia.
“The actions alleged in these charges are in a very small part of our trusted and respected ADF, which helps keep this country safe,” he said.
“Many of our ADF are proud of our country. Today’s costs do not reflect the many members who serve under our Australian flag with dignity, distinction and the values of a democratic nation.”
Although only a jury can determine Roberts-Smith’s guilt, the prosecution would mark a dramatic fall from the one-time war hero who is strongly supported by politicians, including former defense minister and Australian war memorial chairman Brendan Nelson and One Nation leader Pauline Hanson, as well as billionaire Kerry Stokes.
Hanson on Tuesday said he remained “unwavering” in his support for Roberts-Smith. He said it was a shame that he was arrested in front of his daughters. “Ben, his immediate and close family needs the support of the Australian people right now and I will not abandon him like so many other politicians,” he posted on X.
Former prime minister Tony Abbott said it was wrong to judge the actions of “men in humanitarian warfare by the standards of ordinary civilian life”.
“If Ben Roberts-Smith broke the law, why wasn’t this picked up before his bravery awards and why wasn’t any culture of brutality towards prisoners discovered by his senior officers and dealt with quickly, instead of being allowed to fester, as alleged, for over ten years?” Abbott said in a statement.
Roberts-Smith has already unsuccessfully contested allegations that he committed war crimes, including murder, in a defamation case. they fought all the way to the Supreme Court . The High Court in September refused to allow him to appeal the full decision of the Federal Court thatfor its part, it supported the 2023 judgment of Federal Court judge Anthony Besanko that Age and Sydney Morning Herald had proven the allegations to be true by civil standards.
Roberts-Smith, the son of a former West Australian High Court judge and major general, joined the army in 1996 and became Australia’s most famous modern soldier after being awarded the VC for his actions in the 2010 war.
He has always denied any wrongdoing and is expected to face criminal charges.
Official sources, who spoke on condition of anonymity because they were not authorized to comment, said the Commonwealth Director of Public Prosecutions (CDPP) recently contacted Attorney General Michelle Rowland seeking approval for prosecution, as is required when an alleged war crimes case is deemed to merit criminal prosecution.
Over the past five years, a team of experienced federal and state detectives, recruited from various Australian homicide and other elite forces as part of the top secret OSI, quietly built the case against Roberts-Smith.
OSI was created in early 2021 to investigate the involvement of the SAS unit in the crimes of the Afghan War.
According to confidential sources, OSI spies have tapped phones in Australia and overseas, installed wiretapping devices, conducted raids and, most importantly, persuaded SASR soldiers who allegedly witnessed or were involved in Roberts-Smith’s war crimes to become prosecution witnesses.
The case against Roberts-Smith is extensive, but not circumstantial: it is based on the eyewitness accounts of decorated SAS soldiers and veterans of the Afghanistan War.
When told about the pending charges, an eyewitness to the SAS incident told the Herald that he and other veterans had decided to help OSI because no Australian soldier was above the law, no matter how bad the consequences.
“Well, it’s all about truth, and I think, honor. And we lost men in Afghanistan, like regular army heroes and commandos. And how do you honor them? Frankly,” he said, speaking on condition of anonymity due to confidentiality requirements.
He claimed the war crimes he witnessed involved a defenseless prisoner and happened “after the dust had settled”.
“There is there is no fog of warthere are no bullets flying around … this was completely against our mission, we were not there to kill civilians or people who did not deserve to die.”
Some eyewitness accounts have been aired in an unsuccessful civil defamation action that Roberts-Smith launched in 2018 against the luminary. Their evidence was crucial to the Federal Court’s decision, upheld by the Full Court of the Federal Court, that Roberts-Smith had killed prisoners and unarmed civilians.
The three senior judges of the Full Court ruled Roberts-Smith a war criminal on the “balance of probabilities” level of a civilian. Ruling on the alleged murder of a man with a prosthetic leg, they said: “The problem with (Roberts-Smith) is that, unlike most murders, there were three witnesses to the murder.”
Roberts-Smith applied for leave to appeal to the High Court. The court rejected his request.
The pending criminal charges mark the latest chapter in the unusual saga that began when Age and Sydney Morning Herald began a major investigation into Roberts-Smith in late 2017.
The investigation uncovered numerous allegations of war crimes that were later investigated by OSI. These were detailed in several articles published between 2018 and 2023.
In 2019, this masthead and 60 minutes it interviewed two SAS informants and they traveled to Afghanistan to interview the wife of Ali Jan, the Afghan citizen who allegedly threw a rock in September 2011 and was killed on the orders of the famous soldier shortly after the rock kick.
In his interview from a hotel in Kabul, his wife Bibi Dhorko asked the Australian government to hold accountable the soldier who allegedly brutalized her and killed her husband.
“He was not on anybody’s side and he never had a gun,” he said. “He used to live in the mountains and do his work, going to the village every now and then if we needed any supplies.”
Roberts-Smith, although unnamed, was also at the center of a landmark 2016 inquiry into “rumours” of SAS wrongdoing in Afghanistan, commissioned by then army chief Angus Campbell and chaired by chief justice Paul Brereton.
When he finished his investigation in November 2020 and published his revised reportBrereton revealed that he had uncovered reliable information that about two dozen SAS soldiers had carried out 39 alleged murders of civilians and prisoners.
An investigation of this topic and Brereton’s work prompted then prime minister Scott Morrison to create the OSI.
Earlier this year, OSI was told that the CDPP had approved a brief of evidence against Roberts-Smith.
It decided that OSI had gathered enough evidence to charge Roberts-Smith with war crimes, and about two weeks ago it submitted the brief to Rowland for final approval.
On Tuesday morning, 17 years after he allegedly killed an elderly man with a prosthetic leg in an Easter Sunday operation in southern Afghanistan, and five years after the Taliban returned to power, Roberts-Smith was handcuffed and taken to a cell.
He is expected to appear before a NSW regional court judge later today.
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Nick McKenzie is an investigative journalist for The Age who has three times been named the Graham Perkin Journalist of the Year. Winner of 20 Walkley Awards, including a Gold Walkley, he explores politics, business, foreign affairs and criminal justice.Connect through email address.
Chris Masters is a Gold Walkley award-winning journalist and author. He was the first Australian journalist to be attached to special forces in Afghanistan.
