Judge finds Australian war hero to be a war criminal

Yesterday Justice Anthony Besanko handed down his ruling in Afghanistan war hero Ben Roberts-Smith’s defamation case in the Federal Court in Sydney. 

Justice Besanko released a summary of the judgment, agreeing to delay releasing his full reasons until next week, so that it could be vetted by the federal government to ensure that it did not contain any sensitive national security material. 

Justice Besanko dismissed Roberts-Smith’s case against Australian media – on the basis that the most serious defamatory allegations made by the press, namely that the soldier was a war criminal and murderer, were substantially true. 

The trial – dubbed “the defamation case of the century” – ran for over 100 days, and the legal costs are thought to exceed $15 million for each side. Roberts-Smith will now have to pay the costs of both parties. This was an absolutely disastrous result for the war hero – or, perhaps more accurately, former war hero.      

Roberts-Smith, an SAS soldier who won a Victoria Cross fighting in Afghanistan, sued The Sydney Morning Herald, The Age and The Canberra Times, and three journalists, over articles published in 2018 alleging that he was a war criminal and complicit in the murder of six innocent Afghan civilians. 

The newspapers and journalists raised a defense of truth, and Roberts-Smith and witnesses called by the defendants, including three Afghan villagers and some of Roberts-Smith’s fellow soldiers, gave conflicting evidence about what happened on various combat missions involving Roberts-Smith in Afghanistan. The trial judge disbelieved Roberts-Smith and accepted the evidence of the witnesses called by the newspapers, which will make it very difficult for any appeal that may be brought by Roberts-Smith to succeed.    

Roberts-Smith’s comprehensive loss in his defamation action will have dire consequences for him personally, the Australian Defence Force (ADF), and the military top brass. 

A judge, albeit in civil proceedings, has now effectively ruled that Roberts-Smith is a war criminal. Civil cases require a lower standard of proof than criminal ones, but in the circumstances, it appears inevitable that he will face criminal charges in respect to his conduct in Afghanistan and in accordance with the protracted inquiry process into Afghanistan war crimes established by the former Morrison government some years ago.  Roberts-Smith will no doubt be stripped of his Victoria Cross and other medals. 

Besanko’s branding of Roberts-Smith as a war criminal and murderer makes it virtually impossible now to credibly maintain that Australian soldiers did not commit war crimes in Afghanistan. After all, if Australia’s most decorated war hero in Afghanistan was murdering innocent civilians with impunity, it seems certain that other SAS soldiers were engaging in similar conduct.  

The Roberts-Smith defamation case result can only exacerbate the severe damage done to the reputation of the ADF since allegations of Afghanistan war crimes first emerged publically almost five years ago.

As for the military top brass, the result of the Roberts-Smith defamation case confirms that either they knew what was going on in Afghanistan and permitted it to happen, in which case they were complicit in war crimes. Alternatively, they had no idea what was happening, in which case their negligence facilitated such war crimes.  After all, those SAS soldiers who told the journalists who wrote the articles what was actually occurring in Afghanistan, only did so because they knew that the military top brass would do nothing to rein in such conduct.  

The trial’s result also confirms that ADF leadership has mishandled the entire Afghanistan war crimes issue right from the beginning. No wonder ordinary Australian soldiers have lost all respect for their leaders. 

Coincidentally, this week the Chief of the ADF, General Angus Campbell – who was the commander of Australian forces in Afghanistan in 2011 – appeared before a Senate Estimates Committee in the federal parliament. Campbell had a difficult time coping with being grilled by a few independent Senators. 

Earlier this week, Campbell admitted that in March 2021 the United States defense attaché in Canberra had written to him, advising that the allegations of war crimes outlined in the 2020 Brereton Report, could prevent the US military from cooperating with Australian SAS forces in the future. The seriousness of this situation seemed lost on Campbell and he just shrugged the letter and warning off – as was the irony of the perpetrators of the My Lai massacre and Abu Ghraib atrocities lecturing him on the ethics of modern warfare. 

Campbell also testified that he now intends to strip a few Australian military commanders in Afghanistan of their war medals, while keeping the medals that he was personally awarded for his own distinguished service during the Afghanistan war. This did not impress independent Senator Jacqui Lambie, who demanded that Campbell “lead by example and hand back his medals.” Campbell refused to do so. 

Earlier in the week, the ADF announced that alcohol consumption by Australian soldiers would be banned in “warlike operations.” The ban is to be enforced via random breath testing, with soldiers who refuse to be tested being sent home.  This is a typically misguided Campbell policy initiative. The war crimes committed in Afghanistan were not committed because Australian soldiers had a few beers. 

The fact is that the Australian military is in a state of crisis as a result of the inept handling of the entire Afghanistan war crimes matter. Once the allegations surfaced, instead of dealing with them promptly, and court-martialling the offenders, the military top brass set up a protracted investigation, beginning with the Brereton Inquiry, that only focused on the alleged misconduct of ordinary soldiers.  

This fundamentally flawed process has continued for more than five years, and now involves criminal charges being brought against alleged war criminals in the courts. One SAS soldier, Oliver Schulz, has already been charged and others, including Roberts-Smith, no doubt will be. These criminal cases, which will attract ongoing adverse publicity, will take years to conclude. 

This endless demonstration of public self-flagellation, together with the random stripping of service medals from ordinary soldiers against whom no allegations of war crimes had been made, and the egregious and ongoing failure to provide proper support services for soldiers who served in Afghanistan, has reduced morale within the ADF to an all-time low. The Roberts-Smith defamation case will result in it plummeting even further.   

Campbell and his top-brass colleagues should be sacked for presiding over this appalling state of affairs, and an inquiry should be established into what precisely the military top brass knew about war crimes committed in Afghanistan at the time. Answers need to be provided for why they did nothing to put an end to such conduct, why the ADF were sent to fight in Afghanistan in the first place, and what benefits generally accrue to the military from blindly following the US into utterly misguided wars of aggression that cannot be won. 

That will not happen, of course, because, as the recent AUKUS agreement has shown, Prime Minister Anthony Albanese’s Labor government has wholeheartedly adopted the same Cold War worldview fervently adhered to by the military top brass.

Albanese will most likely leave Campbell and his mates in their current comfortable sinecures – where they will further demoralize and weaken the ADF, while at the same time maintaining that Australia should be ready to go to war with China over Taiwan at the drop of Uncle Sam’s top hat.

Defamation actions are strange and unpredictable things, but they sometimes provide instructive insights into the dysfunctional operations of powerful organizations that are in need of root and branch reform. Ben Roberts-Smith inadvertently did Australia a service by bringing defamation proceedings against those newspapers and journalists who dared to tell the truth about what was really happening in Afghanistan.