Former Australian soldier charged with committing 5 war crime murders in Afghanistan

Ben Roberts-Smith arrives at the Federal Court in Sydney, Australia, on June 9, 2021. (AP Photo/Rick Rycroft, File)

MELBOURNE, Australia— Australia’s most decorated living veteran, Ben Roberts-Smith, faces war crime charges on allegations that he killed five unarmed Afghans while serving in Afghanistan from 2009 and 2012, police and media reported on Tuesday.

Police have not confirmed the name of the 47-year-old former soldier who was arrested Tuesday. But he has been widely reported in the media to be Roberts-Smith, a former Special Air Service Regiment corporal who was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan.

Police charged him Tuesday with five counts of war crime murder. He will remain in custody overnight and make his first court appearance on Wednesday, a police statement said.

He will potentially apply for release on bail Wednesday.

Roberts-Smith is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.

Former SAS soldier Oliver Schulz, 44, has pleaded not guilty to a charge of war crime murder. He is accused of shooting Afghan man Dad Mohammad three times in the head in an Uruzgan province wheat field in May 2012.

War crime murder carries a potential sentence of life in prison. It’s a federal crime in Australia, defined as the intentional killing in the context of armed conflict of a person who is not taking an active part in hostilities, such as civilians, prisoners of war or wounded soldiers.

Police arrested Roberts-Smith at Sydney Airport on Tuesday after he arrived on a flight from Brisbane, Australian Federal Police Commissioner Krissy Barrett said.

“It will be alleged that the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan. It will be alleged the victims were detained, unarmed and were under the control of ADF members when they were killed,” Barrett told reporters, referring to the Australian Defence Force.

“It will be alleged the victims were shot by the accused or shot by subordinate members of the ADF in the presence of and acting on the orders of the accused,” Barrett added.

A civil court has already found similar allegations against Roberts-Smith credible in a defamation suit he brought after several newspapers published articles in 2018 accusing him of a range of war crimes. In 2023, a federal judge rejected Roberts-Smith’s claims and ruled that he likely killed four non-combatants unlawfully in 2009 and 2012.

But while the civil court found the war crimes allegations were mostly proved on a balance of probabilities, the new charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt.

In September, Australia’s High Court said it would not hear an appeal, ending his chances of overturning the ruling.

Nick McKenzie, a reporter unsuccessfully sued for defamation by Roberts-Smith who has been investigating allegations against the soldier since 2017, expected SAS colleagues to testify in the criminal trial as they had during the civil trial.

“You’re investigating conduct allegedly taken by some members of the most secretive, elite fighting force Australia has. The journalism task is difficult. What’s been really difficult, though, is those brave SAS witnesses” testifying, McKenzie told Australian Broadcasting Corp.

“For them to come forward and say: ‘Well, we served our country bravely like Ben Roberts-Smith did, alongside him in Afghanistan, but we saw things with our own eyes that we feel uncomfortable about.’ These brave soldiers, some of them broke down after they testified, so difficult was it for them to stand up and speak out,” McKenzie added.

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.

Barrett said few soldiers were involved in the new allegations.

“The alleged conduct related to these charges is confined to a very small section of our trusted and respected ADF which helps keep this country safe,” Barrett said.

“The overwhelming majority of our ADF do our country proud. Today’s charges are not reflective of the majority of members who serve under our Australian flag with honour, with distinction and with the values of a democratic nation,” she added.

The Office of the Special Investigator was established to work with police on the war crime allegations. The office’s director of investigations Ross Barnett said allegations of 53 war crimes had been investigated and 39 of those investigations had concluded without charges. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.

Rod Mcguirk, The Associated Press