Ben Roberts-Smith: Decorated army veteran charged with war crimes by Australian Federal Police

Decorated ex-soldier Ben Roberts-Smith faces life imprisonment after being charged with five war crimes.

The 47-year-old Special Air Service veteran was arrested at Sydney Airport on Tuesday morning, ending a five-year investigation costing tens of millions of dollars.

Hours after the Victoria Cross recipient was escorted off the plane on the tarmac, he was refused bail with a view to appearing again in the NSW Bail Division Court No 7 on Wednesday.

He faces five counts of war crime murder, Australian Federal Police Commissioner Krissy Barrett said.

The investigation was conducted by the AFP in conjunction with the Office of the Special Investigator, the Government agency set up to investigate rumors of unlawful killings of Australian special forces soldiers deployed to Afghanistan.

Mr Roberts-Smith’s charges relate to events that occurred over a three-year period in Uruzgan Province.

Ms Barrett said it could be alleged that “a man involved in the killing of Afghan nationals between 2009 and 2012 in circumstances that amounted to war crimes under the Commonwealth Criminal Code was a member of the ADF”.

“The maximum penalty for war crime murder is life imprisonment,” he said.

“It will be alleged that the victims were not involved in combat during the alleged murders in Afghanistan,” he said.

“It will be alleged that the victims were detained, unarmed and under the control of ADF members when they were killed.

“It will be alleged that the victims were shot by the defendant or by subordinate members of the ADF acting in the defendant’s presence and under his orders.”

In his 2023 contempt ruling, Federal Court Judge Anthony Besanko found that Mr Roberts-Smith had killed or been complicit in the murder of numerous unarmed Afghans.

Judge Besanko reached this conclusion on the “balance of probabilities” (the burden of proof that applies in civil cases), while criminal prosecutors will have to prove guilt “beyond a reasonable doubt.”

OSI research director Ross Barnett provided insight into the scale of this challenge.

“These allegations of war crimes are extremely complex matters to investigate,” he said.

“Unlike a traditional investigation conducted in Australia, the OSI was tasked with fully investigating dozens of alleged murders in the middle of a war zone, in a country 9,000 km from Australia that we can no longer reach.

“So the challenge for investigators is that because we can’t go to that country, we don’t have access to the crime scene. We don’t have photographs, we don’t have field plans, we don’t have measurements, we don’t have bullet recovery, we don’t have blood spatter analysis, we don’t have all those things that we would normally find at a crime scene.”

“In addition, we do not have access to the deceased. There is no autopsy, so there is no official cause of death. We cannot find any bullets associated with weapons that may have been carried by ADF members.

“We usually have to start our investigation with just one or two photographs of the battlefield, some current ADF reports and possibly some third-party eyewitness accounts of the incident that allegedly occurred.”

OSI annual reports show it has received $231 million in Federal funding over the five years of its existence through the end of fiscal year 2024-25.

Mr Roberts-Smith’s expected charges related to the following incidents:

• The death of a person “on or about April 12, 2009, in Kakarak, Uruzgan Province, Afghanistan”;
• Allegation of aiding, abetting, counseling or procuring another person to cause the death of another person on the same date and time;
• Allegation of aiding, abetting, counseling or procuring another person to cause the death of a person “on or about September 11, 2012, in Darwan, Uruzgan Province, Afghanistan”;
• Death of a person “on or about October 20, 2012, in Syahchow, Uruzgan Province, Afghanistan”; And
• Allegation of aiding, abetting, counseling or procuring another person to cause the death of another person on the same date.

Mr. Barnett said his office had launched 53 investigations involving allegations of war crimes, 39 of which had been “provisionally concluded unless new evidence emerges.”

“These 39 matters were also thoroughly investigated to the same high standard as today’s charges,” he said.

“However, we have not collected sufficient evidence to meet the threshold for a brief of evidence to be forwarded to the Director of Public Prosecutions. Other investigations are ongoing.”

Mr Roberts-Smith’s arrest sparked a political row and Pauline Hanson immediately rushed to the veteran’s defence.

Senator Hanson said on social media platform

“Ben was shamefully arrested in front of his twin 15-year-old daughters. He will be in jail for seven days. He only takes one bail application. If that application fails they can hold him for two years.”

“If people are found guilty of war crimes in Afghanistan, you know they need to be held to account,” former Labor Defense Secretary Joel Fitzgibbon said.

“To defend children in general, we sent them to the most dangerous part of the world,” he told Sky News.

“These are tough times for them. In my eyes, they are all Australian heroes. If some of them have lost their way a little under all these circumstances, they should still be held to account.”

Ms Barrett used Tuesday’s press conference to highlight the charges relate to a “very small portion” of the Australian Defense Force.

“The overwhelming majority of our ADF make our country proud,” he said.

“Today’s charges do not reflect the majority members who serve under our Australian flag with honor and the values ​​of a democratic nation. Today is the day to rally behind the ADF and to consider the families who have lost loved ones serving our country.”

Hugh Poate, whose 23-year-old son Robert Poate was killed in the line of duty in Afghanistan in 2012, said Mr Roberts-Smith’s arrest was “completely unfair”.

Pte Poate died after he, Corporal Stjepan Milosevic and Sapper James Martin were ambushed by an Afghan army deserter known as Hekmatullah.

“This shows that the scales of justice are completely unbalanced,” Mr Poate said.

“OSI spent over $300 million over the years to find sufficient evidence to arrest Ben for allegedly killing Afghans, but successive Governments have made no attempt to capture Hekmatullah, who proudly admitted in the Afghan High Court to killing three Australian soldiers.

“There was no Government objection when these Australian soldiers were killed, but successive Governments have been relentless in seeking evidence to arrest BRS and other SAS soldiers based on the allegations.”

Mr Roberts-Smith was backed during his failed libel case against Nine by billionaire Kerry Stokes, who previously employed the veteran at the Seven Network.

Mr Stokes is a major shareholder in Southern Cross Media, which also owns The Nightly and The West Australian.