One has to wonder what Ben Roberts-Smith, famously dubbed Australia’s most-decorated living soldier, was thinking when he launched a defamation case against The Age, The Sydney Morning Herald, and The Canberra Times newspapers for suggesting that he was a war criminal.
The allegations stemmed from his service in Afghanistan, with one of the most inflammatory centering around a raid on a compound known as Whiskey 108, where two unarmed local men, one of whom had a prosthetic leg, were found huddled in a tunnel. After the men reportedly surrendered, Roberts-Smith apparently ordered a junior soldier to shoot the older of the two men, before throwing the one with the prosthetic leg to the ground and firing a machine gun into him.
Another of the most violent allegations took place in the village of Darwan, and reportedly involved Roberts-Smith kicking an unarmed Afghan man named Ali Jan off a cliff and into a dry riverbed while he was handcuffed. Jan was then allegedly shot by a junior serviceman on Roberts-Smith’s orders.
Last week, Justice Anthony Besanko dismissed the defamation case at the federal court in Sydney and found that, on the balance of probabilities (the legal standard in civil cases, which is lower than criminal ones), the allegations made against Roberts-Smith were true.
While it had not yet been proven in a criminal court, where the burden of proof is much higher, the strong implication from the verdict is that Roberts-Smith is a war criminal and a murderer.
This is not the first time the public has heard about allegations of abuse by Australian soldiers in Afghanistan. In 2020, the Brereton Report, a four-year inquiry into the Australian military in Afghanistan from 2005 to 2016, detailed a warrior culture that included unlawful killings and initiation rituals of younger recruits known as “blooding” – gruesome hazing rituals designed to normalize violence which, incidentally, are not dissimilar to those found in gang culture and organized crime syndicates.
Yet still, despite the media coverage and legal scrutiny, Roberts-Smith continued to enjoy support in Australia, including from his employer Seven West Media, which reportedly lent him the money for the defamation lawsuit. For its part, the Australian War Memorial has released a statement about plans to contextualize a gallery of Roberts-Smith memorabilia already on display, which includes two hyper-masculine portraits of him in uniform but does not plan to remove them entirely.
Beyond the courtroom, Roberts-Smith now becomes part of a broader conversation about the legacy of the post-9/11 War on Terror and the multitude of sins it launched.
Much of the defense of Roberts-Smith has followed a familiar narrative often used in the face of allegations of abuse on the battlefield: that, in the fog of war, soldiers are required to make decisions that civilians could never understand and are certainly not qualified to judge, and that the “good guys” are needed to protect the public from the “bad guys” – even if these include unarmed and handcuffed civilians being kicked off a cliff in a village somewhere half a world away.
Historically, courts in various jurisdictions have been largely forgiving of battlefield abuse, like the case of Alexander Blackman, a British marine who was sentenced to life in prison for murder back in 2013 in the United Kingdom. In 2017, the murder conviction was quashed in favor of manslaughter.
“Given his prior exemplary conduct, we have concluded that it was the combination of the stressors, the other matters to which we have referred and his adjustment disorder that substantially impaired his ability to form a rational judgment,” the judges said at the time.
Blackman had shot a disarmed Taliban fighter in the chest in 2011, uttering the unforgettable lines, “There you are, shuffle off this mortal coil, you cunt. It’s nothing you wouldn’t do to us,” followed by, “Obviously this doesn’t go anywhere fellas. I’ve just broken the Geneva Convention.”
Yet, post 9/11, even the Geneva Conventions do not mean much.
To this day, the men held at Guantanamo Bay Detention Camp in Cuba are referred to by the U.S. administration as detainees and not prisoners – because prisoners of war are subject to the Geneva Conventions, which prescribe humanitarian treatment and do not accommodate the myriad of well-documented abuses committed at the facility over the years.
Guantanamo detainees are also known as “enemy combatants” to allow for them to be held indefinitely without trial, under a key piece of legislation known as the Authorization for Use of Military Force (AUMF), which was signed in 2001 shortly after the 9/11 attacks and considers individuals to be “at war” with the United States – more mental and legal gymnastics sprouted under the umbrella of the War on Terror, which was also used to justify the invasion of Afghanistan and the behaviors that went along with it.
Back to the Roberts-Smith case, it remains to be seen if he will now be charged with murder in a criminal case as a civilian, but the shadow of the War on Terror is still likely to loom large and continue to split public opinion as to how war crimes committed in extreme conditions should be handled legally.
Whatever happens, there are likely to be those who will always regard figures like Roberts-Smith as a hero trained to kill, and unfairly hounded when they become killers.