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Ben Roberts-Smith pictured cheering soldiers drinking from the prosthetic leg of a man he shot
By Nick McKenzie and Chris Masters
Victoria Cross recipient Ben Roberts-Smith was photographed cheering on an American soldier drinking from the prosthetic leg of a suspected Afghan militant whose death is now the subject of a war crimes investigation into the war hero.
The Age and The Sydney Morning Herald have obtained two photographs that show Mr Roberts-Smith, the country’s most decorated living soldier, posing with the prosthetic leg which was used as a novelty drinking vessel.
SAS soldier Ben Roberts-Smith carousing with US soldiers and a prosthetic leg taken from an Afghan man whom he killed. The leg was used as a beer drinking vessel at the SAS base in Afghanistan and was known as "Das Boot".
The photographs appear at odds with claims made by Mr Roberts-Smith’s lawyer in the Federal Court last year that the war hero was utterly disgusted by the use of the leg as a drinking vessel. Lawyer Bruce McClintock stressed Mr Roberts-Smith “never drank from that thing … Because he thought it was disgusting to souvenir a body part, albeit an artificial one from someone who had been killed in action."
Mr McClintock also told the Federal Court Mr Roberts-Smith had been the one who had killed the disabled Afghan militant, saying he was a member of the Taliban. That killing is suspected by police to be an execution and is now the subject of an Australian Federal Police war crimes inquiry and a preliminary prosecution brief of evidence.
The first photo depicts Mr Roberts-Smith some time after the killing in 2009 fist-pumping as an American soldier drinks a beer from the leg in a makeshift Afghan bar known as the Fat Lady’s Arms set up inside Australia’s special forces base in Tarin Kowt.
In the other photo Mr Roberts-Smith is seen grinning with his arm draped around a different US soldier wearing a cowboy hat and posing with the prosthetic leg.
Mr Roberts-Smith's lawyer told the Federal Court last year his client had been "disgusted" about the use of the leg as a beer drinking vessel.
The Age and Herald reported two years ago that the leg had been removed from a dead Afghan by another soldier in March 2009 and had been taken to use as a beer drinking vessel. In 2018, The Age and Herald reported how the leg was sometimes mounted on a wooden plaque with an Iron Cross and the heading “Das Boot”.
The fake limb gained further notoriety earlier this month when photos of soldiers and non-commissioned officers drinking from it were leaked to The Guardian. The photos supplied to The Guardian did not include any images of Mr Roberts-Smith posing with the leg.
Multiple official sources, who spoke on the condition of anonymity because the investigations are ongoing, have told The Age and Herald Mr Roberts-Smith will face fresh war crimes inquiries in addition to ongoing federal police taskforces already probing him.
The prosthetic leg that was mounted, and turned into a novelty drinking vessel.
The sources confirmed that the federal police are investigating Mr Roberts-Smith over multiple eyewitness accounts from his fellow Special Air Service Regiment soldiers who allege he executed the unarmed Afghan militant wearing the leg in an operation in Kakarak, Southern Afghanistan, on Easter Sunday, 2009. That alleged execution is the subject of a preliminary criminal brief recently submitted by the federal police to Commonwealth prosecutors.
Police are also investigating allegations, made by SASR insiders, that Mr Roberts-Smith and a second soldier pressured a junior trooper to execute a second Afghan found in the same Kakarak compound in a “blooding” incident. “Blooding” is the pressuring of junior soldiers to summarily execute prisoners. The practice was identified in the Brereton Inquiry report into allegations of war crimes by a small clique of Australian SAS soldiers in Afghanistan.
The Brereton report identified a “warrior culture” that allowed war crimes to be allegedly committed. Without naming any individual, the Brereton report found 25 special forces soldiers may have executed 39 Afghans and called on the federal police to launch multiple fresh inquiries.
It separately criticised the unruly or skylarking behaviour of some soldiers at the Fat Lady’s Arms.
The Brereton Inquiry intensively investigated Mr Roberts-Smith for three years, but his suspected role in multiple war crimes has only been publicly exposed by whistleblower accounts provided to The Age and Herald.
This man, whose right leg is prosthetic, was among Afghans killed in 2009 in incident that involved an alleged war crime. We have chosen to blur the image.
A confidential AFP letter sent in late 2019 stated detectives had obtained “eyewitness” accounts implicating him in suspected war crimes. In addition to the Kakarak killings, the taskforces have also submitted a preliminary brief of evidence to prosecutors about allegations Mr Roberts-Smith kicked a prisoner named Ali Jan off a cliff in 2012.
The AFP letter was revealed in defamation proceedings that Mr Roberts-Smith has launched against The Age and Herald. Mr Roberts-Smith has repeatedly denied any wrongdoing.
Hundreds of photos exist depicting dozens of soldiers and officers drinking from the boot and the selective leaking of a small number of them at the Fat Lady’s Arms to The Guardian has partly shifted the focus onto whistleblowers or witnesses, and away from soldiers accused of actually executing prisoners.
The Guardian story, written by freelance journalist Rory Callinan, included photos of two soldiers with faces blurred posing with the boot. The story claimed “rank-and-file” soldiers believe they have been unfairly criticised by the Brereton report and suggest that drinking from the boot could be classified as the war crime of pillaging because the leg was property taken without the consent of its owner.
The article did not mention the allegation the Afghan man wearing the leg had been allegedly executed, or that Mr Roberts-Smith was a police suspect.
More than a dozen defence sources said the two soldiers in the photos published by Mr Callinan and the Guardian were part of a group of suspected witnesses rumoured to be assisting the federal police war crimes taskforce. The sources said one of the two soldiers depicted in The Guardian had, in 2017, disclosed his own role in removing and handling the leg. This was also not reported in the Guardian article.
Despite efforts to contact him, Mr Callinan could not be reached before deadline. Sources at The Guardian said the British media giant was unaware the two soldiers depicted in the photos it published could be police witnesses.
There is no suggestion Mr Roberts-Smith provided the photos of the two soldiers turned suspected police witnesses or is connected to the Guardian reports. However, the former soldier is working with public relations firm Cato & Clive and public relations operative and former journalist Ross Coulthart.
The work of the two federal police taskforces will be reviewed and subsumed in coming weeks by the Office of the Special Investigator, created by Prime Minister Scott Morrison in November, as it creates a 75-strong team of federal and state police detectives, prosecutors and experts.
Multiple official sources said a key task for the office, partly led by former top Victorian judge Mark Weinberg, will be deciding how to manage the evidence about Mr Roberts-Smith’s alleged war crimes already uncovered by federal police taskforces.
Some commentators, including former head of defence Admiral Chris Barrie, have queried if the Brereton inquiry adequately considered the question of officer and senior command responsibility, despite exhaustive investigations into this issue by the Brereton probe. Others have attacked defence force chief Angus Campbell over his handling of the Brereton Report and his call to support the stripping of a meritorious unit citation to from the SASR.
The Brereton report said forensic investigations and hundreds of interviews had unearthed no direct knowledge or involvement by officers in war crimes. But the inquiry still concluded some commanders bore a moral and leadership responsibility for the alleged executions concealed from them by soldiers. Suspected war crimes whistleblowers and witnesses have also been targeted in some recent media reports, according to defence sources.
Australian Defence Association chief executive Neil James wrote on Friday that, “to our national detriment, much of the public discussion on war crimes alleged to have been committed by Australian soldiers in Afghanistan is focusing on secondary, peripheral or irrelevant issues.”
“Straw-man arguments have also been peddled by those with other agendas, including a wish to obscure the key fact that premeditated and systemic war crimes were [allegedly] committed, and that they were inexcusable,” he wrote. Mr James stressed individuals accused were entitled to presumption of innocence.
Mr Roberts-Smith has made several media statements including the false claim that a media tip off - and not a referral from the Brereton Inquiry and the defence force - had prompted the police inquiries into his behaviour.
A statement promising the release of new photos showing officers drinking out of the boot was circulated this week among the SASR, veterans groups and journalists, although its authenticity could not be verified.