A giant like Ben Roberts-Smith was always going to take a long time to hit the ground given that he had a Victoria Cross on his chest and had bathed in the one-time adoration of his country.
But after five long years, the 2m-tall former SAS corporal has finally crashed to Earth with a thud that could be felt across Australia. His reputation has been crushed beyond repair by the failure of his defamation case against three newspapers accusing him of murderous war crimes in Afghanistan.
And yet the trials of Roberts-Smith and a raft of other SAS soldiers who served with him in Afghanistan are only just beginning. We are now likely to see a slew of criminal prosecutions for war crimes in Afghanistan that will cast a dark shadow over Australia’s military for many years.
Even though this was a civil case and therefore had a lower burden of proof than a criminal prosecution, the result offers further confirmation that Australian soldiers participated in horrific war crimes in Afghanistan. It adds to the findings of the 2020 Brereton report which found “credible” evidence of allegations 25 Australian soldiers murdered 39 Afghan civilians. So far only one former SAS soldier, Oliver Schultz, has been charged with murder. But more criminal charges are now expected, with the Office of the Special Investigator examining “between 40 and 50” further allegations of war crimes.
Roberts-Smith himself now faces possible criminal charges.
The Brereton report recommended allegations against 19 serving or former soldiers be referred for criminal investigation. These are now working their way through the system.
Defence chief Angus Campbell admitted as much when he warned last month of some “very, very uncomfortable days” ahead for Australia’s special forces.
“There may be others and that is a matter for the OSI and, ultimately, then, a matter for the commonwealth Director of Public Prosecutions,” he said. “You won’t see me trying to gloss over these things.”
For the 44-year-old Roberts-Smith, the verdict marks one of the most spectacular falls from grace in Australian public life.
In a case that became a de facto war crime trial, Federal Court judge Anthony Besanko found there was substantial truth to reports that Roberts-Smith committed war crimes, including murder.
Besanko’s decision to dismiss his defamation case against three media outlets, The Age, The Sydney Morning Herald and the Canberra Times, is a major win for all media in the face of Australia’s tough defamation laws.
But the findings against Roberts-Smith have huge ramifications for the ADF and especially the elite SAS, which carried the burden of heavy fighting in the 20-year Afghanistan conflict.
His deeply ill-conceived defamation action was always a high-risk gamble given the number of his former colleagues who were willing to testify against him.
The stakes for Roberts-Smith in this case could hardly have been higher. It was an all-or-nothing gamble. As his barrister Arthur Moses previously told the court, if the charges against his client were proven it “would paint Mr Roberts-Smith as a murder … a violent person and a domestic violence abuser. It would indelibly and permanently tarnish his standing and good name”.
Another barrister for Roberts-Smith, Bruce McClintock, said: “When this material was published there could not have been a former soldier better known or more highly respected than my client.”
His lawyers argued unsuccessfully that his accusers were fantasists who were motivated to testify against him because of “corrosive jealousy” towards Roberts-Smith being awarded the VC for his actions in a 2010 battle in Tizak, Afghanistan.
Roberts-Smith, who took out a loan from media magnate Kerry Stokes to fund the case, has offered his VC as collateral. He faces the prospect of having the medal formally revoked if found guilty in a military court of war crimes. It is considered likely Roberts-Smith will appeal the court’s verdict.
The judgment by Besanko took about 10 months, ending an almost five-year process. The length of time to deliver his verdict spoke of the difficulty in sorting fact from fiction in the case.
Both sides in the 13-month trial relied heavily upon testimony for former or serving SAS soldiers. But in several of those cases the accounts given by the witnesses were utterly at odds with other supposed witnesses.
Roberts-Smith, who has always denied any wrongdoing, faced allegations that he unlawfully murdered six civilians while serving in Afghanistan between 2009 and 2012. He launched defamation proceedings in August 2018 over six articles published between June and August that year.
Besanko found that the newspapers had established substantial truth in relation to the most prominent reported cases.
These included allegations that Roberts-Smith kicked one man, a farmer called Ali Jan, off a small cliff before ordering two soldiers to drag him under a tree where the man was then shot dead.
Roberts-Smith disputed that he kicked the man off a cliff and said he was lawfully shot because he was a suspected Taliban “spotter” reporting on coalition troop movements. Besanko found that Roberts-Smith did unlawfully order his soldiers to kill Ali Jan.
In another incident, Roberts-Smith was alleged to have been responsible for the deaths of an elderly man and another man with a prosthetic leg who were discovered hiding in a makeshift tunnel. Roberts-Smith was reported to have ordered another soldier to execute the older man and is then said to have thrown the man with the fake leg to the ground and machine gunned him to death. Besanko found the reports established the substantial truth that Roberts-Smith “committed murder by machine gunning a man with a prosthetic leg”.
Photos subsequently emerged of SAS soldiers drinking beer from the prosthetic leg, which they dubbed Das Boot, at a party on their base.
Other reported acts of violence were also deemed to be true, including that in 2010 Roberts-Smith punched an unarmed Afghan in the face and bashed his stomach with his knee until two patrol commanders ordered him to back off. In 2012 he authorised the assault of another man in custody.
But Besanko found that the newspapers had not established the substantial truth in relation to two alleged deaths that took place on separate missions in 2012.
The defamation case pitted soldier against soldier, some of whom were former friends.
Those who criticised Roberts-Smith portrayed him as a maverick, out-of-control warrior who bullied his own troops, had no moral compass and openly flouted the laws of war under the Geneva Conventions.
Others argued he was tough but fair in his own conduct on the battlefield and that, while he was no angel, what he did was needed on the battlefield.
Back in Australia, the former Father of the Year was also accused of domestic violence, allegedly punching a woman with whom he was having an affair. Besanko said the newspapers did not establish the truth of this allegation but given the “contextual truth” around the incidents the reports were not defamatory.
To defend the defamation case the newspapers had to prove the truth of the imputations on “the balance of probabilities”, not to the criminal standard of “beyond reasonable doubt”.
Now, following the charges against Schultz, the OSI is preparing for more prosecutions of SAS soldiers who served in Afghanistan. Shultz, who has been charged with the war crime of murder, was allegedly the soldier filmed on a helmet camera shooting an Afghan man in a wheat field in 2012 in Uruzgan province.
Major General Paul Brereton, in his report, denied that the alleged atrocities involving Australian troops could be attributed to the “fog of war”. Instead, he said they were deliberate and unjustified actions which amounted to a “disgraceful and profound betrayal” of the military.
These included allegations that soldiers sought to cover up unlawful killings by placing weapons on the body of a person who had been “killed in action” to make it seem like they were a legitimate target.
It also spoke of the practice of “blooding” when junior officers were required to murder prisoners to get their first “kill”.
The diplomatic fallout from the Brereton findings was revealed this week when Campbell told Senate estimates the US had warned him in 2021 the war crimes allegations could impact US military co-operation with the SAS.
The shadow of the war crimes allegations has also led to arguments over medals and citations. About 3000 special forces soldiers have been allowed to keep the meritorious unit citation, but Campbell has launched a fresh attempt to remove awards for some soldiers.
The push has led to a furious backlash from veterans groups and by independent senator Jacqui Lambie, who questioned why Campbell should not hand back his own medals.
The Brereton report found the criminal behaviour in Afghanistan was conceived at the patrol commander level rather than in the senior commander ranks.
In an unusual move, the written judgment of Besanko will be delayed until next Monday so that the commonwealth can redact parts that breach national security.
Only then will we be able to see how the judge weighed up the competing evidence. But either way, it will make ugly reading for the ADF which knows that the actions of a group of rogue soldiers have tainted the brave service and sacrifice of the almost 40,000 Australia military personnel who served in Afghanistan.
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