Ben Roberts-Smith Charged with 5 Afghan War Crime Murders

Ben Roberts-Smith, Australia's most decorated living soldier, was arrested at Sydney Domestic Airport on April 7, 2023, and charged with five counts of war crime-murder. The charges relate to incidents that occurred between 2009 and 2012 in Afghanistan, involving the deaths of unarmed Afghan nationals who were detained and under the control of Australian Defence Force (ADF) members.

The arrest follows a lengthy investigation by the Office of Special Investigator (OSI) and the Australian Federal Police (AFP), which began in 2021. The charges allege that Roberts-Smith, or subordinate members acting on his orders, shot victims who were not taking part in hostilities at the time of their alleged murder.

The maximum penalty for each charge is life imprisonment. AFP Commissioner Krissy Barrett confirmed during a press conference outside the AFP Sydney Headquarters that Roberts-Smith had been denied bail and would appear in court for a bail hearing on Wednesday. The investigation faced significant challenges due to the difficulty of gathering evidence from Afghanistan, including access to crime scenes and post-mortem reports.

The arrest comes after Roberts-Smith lost defamation proceedings against journalists who reported he was complicit in the murder of unarmed Afghan men. An Australian judge found in 2023 that those journalists had not defamed Roberts-Smith, a ruling upheld by the Full Court of the Federal Court of Australia last May.

The charges stem from a joint investigation by OSI and AFP that has examined 53 cases involving ADF members. According to NPR, Roberts-Smith will remain in custody overnight and make his first court appearance on Wednesday. The charges follow a military report released in 2020 that found evidence that elite Australian SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers, and other noncombatants.

The criminal case is set to focus on a narrower set of allegations than those traversed during the defamation proceedings: that Roberts-Smith either killed or was involved in the killing of five people during separate incidents in Kakarak, Syahchow, and Darwan. The alleged offenses include intentionally causing death and aiding, abetting, counseling, or procuring another person to cause death.

The AFP commissioner stated that none of the alleged victims were enemy combatants and were not taking part in hostilities at the time of their alleged murder. The evidence gathering has been challenging due to the lack of access to crime scenes and post-mortem reports, with investigators relying on limited photographs and eyewitness testimony.

The court process could stretch for many months before Roberts-Smith appears before a jury in a New South Wales supreme court trial. Complications may include finding an acceptable jury pool due to extensive media coverage of the defamation case and potential legal arguments about the admissibility of evidence.