Roberts-Smith to front court after night spent in cell
Former SAS soldier and Victoria Cross recipient Ben Roberts-Smith will make his first court appearance as an alleged murderer after spending a night in jail.
Australia’s most decorated living soldier will face bail court on Wednesday after being charged with two counts of war crime murder and three counts of aiding or abetting the same charge.
The maximum penalty for the charges is life imprisonment.
The 47-year-old man, who was detained on Tuesday night, is accused of killing unarmed civilians while serving in Afghanistan between 2009 and 2012 and of failing to stop members of his unit from killing three more people.
Although Roberts-Smith’s courtroom travails began in 2017, when she unsuccessfully sued the Nine newspaper for libel, legal experts say the move of her case into criminal territory could be a turning point for war crimes investigations in Australia.
Gillian Triggs, former chair of the Australian Human Rights Commission, said the prospect of criminal prosecution for crimes allegedly committed on the battlefield overseas was almost unprecedented in modern times.
“This is a very technical area of law and we have very few precedents in Australian national practice,” Professor Triggs told AAP.
He said Australia’s failed prosecutions of numerous alleged Nazi war criminals in the 1990s had prompted authorities to be extremely careful before taking criminal action.
But with two men charged with alleged war crimes in Afghanistan, the floodgates of investigations may now be ready to open.
Another former SAS soldier, Oliver Schulz, was charged in 2023 with war crimes for the murder of a young man in Afghanistan in 2012.
He maintained his innocence.
“These (trials) will strengthen the willingness of department of justice prosecutors to say ‘we have evidence here and we will pursue it’,” Prof Triggs said.
Professor Triggs said Roberts-Smith’s case would be watched internationally and the decision to prosecute domestically would take the matter out of the hands of war crimes prosecutors at the International Criminal Court.
But an international law expert said Australian prosecutors needed to resolve some complex legal issues before the case could proceed to a possible trial.
“It’s been a long time, so the delay itself could create difficulties in terms of gathering reliable evidence,” Rain Liivoja, professor of international law at the University of Queensland, told AAP.
“The fact that the alleged crimes were committed abroad, even in a place where transportation is not easy, makes collecting evidence even more difficult.”
A Federal Court judge had previously found Roberts-Smith responsible for a string of murders, but those findings were made on the balance of probabilities rather than the criminal standard of beyond reasonable doubt.
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