Inside $300m probe before Ben Roberts-Smith’s arrest for alleged war crime murders
The arrest of former special forces corporal Ben Roberts-Smith is a turning point in Australian military history.
Mr Roberts-Smith, one of the country’s most decorated and high-profile soldiers, was led off a plane in handcuffs by police at Sydney Airport on Tuesday and accused of murdering unarmed detainees during tours in Afghanistan between 2009 and 2012.
He was charged with five war crimes of murder, including one count of jointly committing murder and three counts of aiding, abetting, counseling or procuring a murder.
Mr Roberts-Smith has always denied the allegations against him.
The arrest is also a significant development for the specialist team tasked with investigating alleged war crimes committed by Australian Defense Force personnel.
The Special Investigations Bureau has had few arrests since its inception in 2021 and has faced criticism from both transparency and experienced lawyers.
Mr Roberts-Smith represents only the second arrest among dozens of investigations he has launched.
So what is it, what did it do and why are the investigations taking so long?
What is OSI?
OSI did not emerge in a vacuum. This was the direct result of the Brereton Report, a four-year internal military investigation led by Major General Paul Brereton.
The report, published in November 2020, revealed “credible information” about 39 unlawful killings of Afghan civilians or prisoners by Australian Special Forces.
No one was named in the report, and the burden of proof was based on the balance of probabilities standard of an administrative investigation.
The findings were heartbreaking; It detailed rituals such as “bloodletting,” in which in some cases subordinate soldiers were allegedly ordered to execute prisoners to carry out their first murder, and “throwing,” in which guns were placed on victims to cover up the killings.
He could not prosecute the Brereton Inquiry because it was administrative.
OSI was created to step in where the military’s jurisdiction ended and shift the focus to the civilian criminal justice system.
work to date
The OSI’s progress was slow and focused on assembling evidence for the Federal Director of Public Prosecutions (CDPP) from large amounts of material, including helmet camera videos and seized radio recordings, at a cost of more than $300 million.
So far enough evidence has been collected for two arrests: former SASR soldier Oliver Schulz in 2023 and Mr Roberts-Smith this week.
Both were charged with murder, a war crime. Mr. Schulz also denies the accusation against him.
At least 39 of 53 investigations were shelved due to lack of evidence.
What’s taking so long?
The OSI has regularly come under criticism for its speed, with opposition defense industry minister Philip Thompson calling the drawn-out process “disgraceful” earlier this year.
Mr Thompson, himself a veteran, told The Daily Telegraph at the time: “There are people who were questioned by the OSI and then said nothing else. There are people who were put forward as persons of interest and were not told it was over and it wasn’t over. Their lives were turned upside down.”
“If someone has done something wrong, then they deserve their day in court…we live in a country where you are innocent until proven guilty.”
During this interview, he called on the Albanian government to “instruct the OSI to either drop the charges or withdraw the case because this is taking too long.”
OSI faces three fundamental challenges.
Generally speaking, under military law, soldiers can be forced to testify during an investigation.
However, the Constitution protects individuals from self-incrimination in criminal cases, which means the OSI cannot use any language in the Brereton Report.
Investigators must instead find new evidence, which involves re-interviewing witnesses and finding physical evidence as if the original investigation had never happened.
The second biggest obstacle is the lack of a crime scene.
Since the Taliban returned to power in 2021, Australian investigators have not been able to safely enter Afghanistan to conduct forensic searches, interview local villagers or examine burial sites.
OSI director of investigations Ross Barnett pointed this out when asked about the pace of investigations following Mr Roberts-Smith’s arrest.
“Unlike a traditional investigation conducted in Australia, the OSI was tasked with fully investigating dozens of murders allegedly committed in the middle of a war zone, in a country 9,000 kilometers from Australia that we can no longer reach,” he told reporters.
“So the challenge for investigators is that when we can’t go into the country, we don’t have access to the crime scene.
“So we don’t have photographs, field plans, measurements, bullet recovery, blood spatter analysis, all the things we would normally get at a crime scene.”
The final difficulty is that the burden of proof is high.
In Mr Roberts-Smith’s 2023 civil libel trial, the judge found he had committed murder on the “balance of probabilities”, which was more likely than not.
The standard in a criminal case conducted by the OSI is “beyond reasonable doubt.”
Trying to close this gap will take years of painstaking work, as Mr Barnett said: “There is no autopsy, so there is no official cause of death. There is no way to find bullets linked to weapons that may have been carried by members of the (Australian Defense Force).”
He said investigations usually begin with “one or two photographs of the battlefield and some contemporary ADF reports and, potentially, some third-party eyewitness accounts of the events that allegedly occurred”.
