Ben Roberts-Smith and the battle on the home front

An inquiry into possible war crimes by Australian forces in Afghanistan seems far from resolution.

Ben Roberts-Smith on Anzac Day; ‘I gave everything to fight for this country,’ he told The Australian in August last year. Picture: Sean Davey

When the Office of the Inspector General of the Australian Defence Force began its inquiry into possible war crimes in Afghanistan, Barack Obama was still US president, the Brexit referendum had not been held and Malcolm Turnbull was at the midway point of his torrid prime ministership.

Almost 3½ years later the longest and most secretive inquiry undertaken by the Defence Force appears no closer to finishing its work. For a country curious to know whether its special forces are shot through with war criminals, this delay is troubling. For those soldiers caught in the teeth of the investigation, the glacial pace has been devastating.

One of those soldiers is Ben Roberts-Smith, the country’s most decorated war veteran and so far the only individual to be named publicly in connection to the tangle of inquiries probing the conduct of Australian forces in Afghanistan.

‘Leonidas’ figleaf

Last Sunday the Nine Network’s 60 Minutes took the allegations against Roberts-Smith a notch further, naming the Victoria Cross recipient as being party to the battlefield execution of an Afghan villager named Ali Jan in Darwan, Afghanistan, on September 11, 2012. The allegation is not new.

A virtually identical claim was made in articles published in The Age and Sydney Morning Herald newspapers last year.

The charge levelled at Roberts-Smith is jarringly simple: that he collected Ali Jan from a prisoner holding area, led him to a cliff or retaining wall, kicked him over the edge, then instructed a soldier under his command to kill him.

The article last year did not name Roberts-Smith, instead attributing the crime to a soldier it dubbed “Leonidas”, after the famed Spartan king Roberts-Smith and his crew were said to idolise. But to Roberts-Smith and his team of lawyers it was a figleaf. They were in no doubt who the articles were referring to. Within days, defamation proceedings were under way in the Federal Court.

The events in Darwan that day are now the subject of several lines of inquiry.

One is the formally constituted investigation by the IGADF, which began in May 2016.

The second is an Australian Federal Police investigation examining possible criminal conduct and the third is a free-ranging and very public battle being waged through the media, the ­defamation courts and the loose network of serving and former Special Air Service Regiment operatives who served with Roberts-Smith and are well-versed in the blood rivalry that exists between Roberts-Smith and the small number of soldiers believed to be behind the ­allegations.

It is this third investigation that most troubles supporters of Roberts-Smith, who worry that what began as an attempt to get to the bottom of a murky day in Darwan is beginning to look like a campaign to bring down one man.

Speculation ‘unfair’

“The constant press speculation about Ben Roberts-Smith is unfair,” Australian Defence Association executive director Neil James tells The Australian.

“He hasn’t had the opportunity to clear his name and the constant reference to him is unfair.”

The attacks on Roberts-Smith have gone beyond claims he conspired to kill Ali Jan. He has been accused of bashing a woman with whom he was briefly in a relationship, of assaulting fellow members of his unit and of involvement in the unlawful killing of a further five Afghans.

None of these allegations has been proven. All have been denied.

The one accusation to be fully tested by the authorities — that ­Roberts-Smith attacked his then girlfriend at Canberra’s Realm Hotel on March 28, 2017 — was dismissed by police for lack of ­evidence.

Details scarce

Publicly, we have yet to be given a detailed witness account of what allegedly occurred in Darwan on that day.

The version offered by Nine’s newspaper journalists Nick McKenzie and Chris Masters, two respected reporters who were the first to identify Roberts-Smith as an alleged participant in the incident, cited two “defence force insiders” who they say saw the event. Beyond that there are few ­details.

The SASR operators who anonymously accused Robert-Smith of the killing on 60 Minutes seem not to have been present when the alleged incident occurred, raising the question of how they can claim to have any knowledge of it.

“I am appalled the service of my colleagues and my service to my country and my regiment is being traduced in such an irresponsible way,” Roberts-Smith said in response to the 60 Minutes story.

The most detailed public account of a possible unlawful killing in Darwan was provided by ABC journalist Dan Oakes.

In June last year Oakes ran a story quoting a handful of Afghan villagers who went on the record saying they saw Ali Jan intercepted by Australian soldiers as he led his donkeys out of Darwan and then taken away. Sometime later he was found dead. The story did not name Roberts-Smith.

“The ABC has not been able to locate any eyewitnesses to Ali Jan Faqir’s death or the events immediately preceding it, but a number of accounts circulating in the village have him being kicked or thrown from a high earth bank, or wall, into a ditch,” Oakes reported.

In the story published by Oakes, accounts vary as to whether Ali Jan was shot before or after he was thrown over the cliff, a potentially significant distinction.

Digger whispers

It is of course possible Roberts-Smith is guilty. The AFP does not take up criminal investigations lightly. And, while the Afghan rumour mill might account for some of the smoke around Roberts-Smith, it cannot be denied some of his accusers are fellow SASR operatives. Nor should we discount the possibility there are additional witnesses who will come forward, or perhaps have already done so.

But it is also possible that what began as an urban legend around an incident or a set of incidents in Darwan that day, has hardened into “fact” over the years.

Soldiers who have served in Afghanistan talk about how time, trauma and the fallibility of human memory can conspire to create a recollection of an event that bears little resemblance to its original circumstances. One referred to it as “Digger whispers”.

Darwan search

The operation in Darwan began on the morning of September 11, 2012. A force of about 100 soldiers comprised the SASR, Afghan National Army troops and commandos choppered into Darwan in search of Hekmatullah, a rogue Afghan National Army sergeant who 13 days earlier had gunned down three Australian troops at rest at their patrol base.

On one account an initial assault team is believed to have engaged two insurgents as it cleared the village, killing both.

A second patrol, believed to include Roberts-Smith, acted as a blocking force and positioned itself several hundred metres away.

This second patrol, it seems, had little contact with civilians, who were being held under confinement at the village.

Roberts-Smith’s team is believed to have encountered a small number of civilians as it manoeuvred from the river back towards the village but none were found to be fighting-age males.

In addition to the two insurgents killed by the assault team The Australian has been told another two were engaged by a second patrol, believed to be Robert-Smith’s team.

One was a Taliban spotter, shot and killed by a member of Robert-Smith’s patrol as they crossed a cornfield towards the end of the mission.

Another was a “squirter” who was observed across the Helmand River. What happened next is unclear but it seems at least one soldier fired at the man who hid in a rocky outcrop above the river bank. Thinking the squirter might be Hekmatullah, Roberts-Smith is understood to have swum across the Helmand River, climbed the bluff, then shot the man.

It is not clear if he was alive or dead at this stage. But both shootings, if they happened in the manner described, were permitted under the rules of engagement that prevailed at the time.

The squirter had valuable intelligence material on him, believed to be Iranian-made IED componentry. He also had an old AK-47 with a bullet lodged in it, which seems to have come from one of the Australian soldiers — possibly Roberts-Smith — who fired at him. Both the rifle and the detonators were turned in, according to one Special Forces source there that day. The source said Roberts-Smith, who had been at the gym that morning, came back to base completely exhausted.

“He said, ‘F..k me, if I’d known what I was going to do that day there was no way I’d have had that session in the morning,’ ” the source tells The Australian.

The IEDs and the rifle were taken by Roberts-Smith, who then, perhaps crucially, pushed the lifeless body down the embankment to the river bank so he could conduct a “site-sensitive examination” — basically a digital photograph taken from across the river by another member of the patrol in the hope the insurgent could be identified through facial recognition.

The Australian does not claim this incident is the one reported on. The facts are simply not clear. But the similarity between the way the squirter was said to have been shot and the ­alleged killing of Ali Jan are obvious, and one possibility is a legitimate battlefield encounter has morphed over time into a criminal act.

Feuding fighters

If such a transformation has occurred it has likely been aided by a small number of current and serving SASR operators known to harbour a visceral dislike of Roberts-Smith. This feud is well known within the tight network of former Special Forces veterans. Most believe they know exactly who appeared on Sunday’s program.

This does not necessarily discredit the men’s story. Their grudge against Roberts-Smith could well be the result of his conduct and their motivation in stepping forward no more than a desire to see justice done. But it does point to an element of the story not disclosed to the public: the intensity of the personal rivalries that exist within a unit most Australians have become accustomed to seeing as populated by knockabout Anzac-types too decent to harbour a grudge.

The truth is, while the SASR is one of the most professional and efficient institutions within the Defence Force, it brims with hyper-competitive personalities whose natural aggression works wonderfully when properly harnessed but wreaks havoc when set against each other.

Long wait

The process Roberts-Smith has been subject to as the military and the nation undertake this long march towards accountability has been demonstrably unfair. No one — guilty or innocent — should have to wait this long for justice, least of all decorated soldiers who have risked their lives for their country.

The accusations against Roberts-Smith may now be out in the open but those who made them remain concealed by court orders, secrecy laws and the solemn duty of journalists to protect sources.

The dragnet of official inquiries may yet yield a long list of names, but so far only one has been in the public eye. In this unseemly brawl, Roberts-Smith is the only one fighting out in the open.

The effect has been to skew the public’s perception of Roberts-Smith, turning him from venerated war hero to a figure of questionable morale standing, to say the least. If he is guilty of war crimes then Roberts-Smith must be punished. The inclination of some to give soldiers a light pass by virtue of the work they do receives short shrift within the military itself. There, the view is those who consider themselves elite have fewer reasons for acting out, not more.

But it is hard to see how Roberts-Smith guilt, should it arise, justifies the one-sided and prolonged public pummelling of his reputation. This pummelling might have been tolerable if the official inquiries tasked with resolving these issues had acted in a competent fashion. They have not.

The IGADF inquiry steered by respected NSW Supreme Court judge Paul Brereton has been running for three years and is expected to see out four before it finally reports. Ask the Defence Force why it is taking so long and you’ll get an answer about the complexity of the inquiries, the transnational nature of the inquiry, the fact the material is secret and the interlocking web of legal battles, criminal investigations and newspaper articles, all of which have slowed the IGADF’s work.

Don’t believe a word of it.

Complex investigations need not be long ones. The 9/11 Commission was over in 22 months. The Wood royal commission into police corruption in NSW reported in two years. The Warren Commission into the assassination of US president John F. Kennedy was done in just 10 months.

Are we seriously to believe an investigation into a handful of incidents alleged to have occurred in Afghanistan is more complex than the investigation into the September 11 conspiracy?

Defence arrogance

The truth is the IGADF and the Defence Force failed utterly to anticipate the effect this inquiry would have on the health and the reputation of those caught up in it.

Nor did they account for the damage to the morale within the special forces. The failure to properly resource and prioritise the inquiry is beyond negligent, it is culpable. The lack of accountability within Defence to its own people borders on arrogant.

It has had a profound and probably lasting effect on many of the men caught up in it, including Roberts-Smith, who as we write is guilty of no crime.

James has called on the IGADF to give an account of itself.

“We’ve suggested that perhaps some form of interim statement needs to be made just explaining why it’s taken so long, the complexity involved and giving some forecast as to when it might be finished,” he says.

“It’s been going on so long now it’s a little unfair to witnesses and people subject to allegations. It’s also not good for the ADF and the country’s record. We need to get this sorted out.”

The AFP inquiry into the Ali Jan affair is not much better. The investigation was running for more than a year before the AFP put its officers on a plane to Afghanistan to investigate.

The AFP unit responsible for the job is stretched but it has been open to the AFP to shift its res­ources internally to finalise what is clearly a high-profile matter. There are signs it may now be doing so, but for Roberts-Smith, who has yet to be approached by the police, the damage may already be done.

“I gave everything to fight for this country,” he told The Australian in August last year. “I was prepared to die, like everybody else. You talk about a warrior culture but that’s why we did it: we were prepared to die fighting for this country. Take the politics out of it. I didn’t go to Afghanistan for any other reason than I’m a soldier and that’s what I was ordered to do.”

Know something about this story? Contact Paul Maley at [e-mail]