Ben Roberts-Smith, a former Australian Special Air Service (SAS) corporal and recipient of the Victoria Cross, is facing legal proceedings over allegations of war crimes committed during deployments to Afghanistan.
The legal challenges follow a high-profile civil defamation suit brought by Roberts-Smith against Nine Entertainment. During those proceedings, the Federal Court of Australia examined evidence regarding the conduct of special forces operators in the field. Justice Geoffrey Bellew ruled that the allegations that Roberts-Smith murdered prisoners of war were “satisfactorily proven” on the balance of probabilities, the standard of proof used in civil litigation.
The Nature of the Allegations
The evidence presented in court detailed incidents in which non-combatants and prisoners were allegedly killed. Testimony from former SAS colleagues described a pattern of conduct where detainees were executed after they had been captured. This evidence included eyewitness accounts and photographs that the court found credible.
These allegations align with the findings of the Inspector-General of the Australian Defence Force (IGADF), released in the Brereton Report. That inquiry found “credible information” that Australian special forces were involved in the unlawful killing of 39 Afghan civilians and prisoners between 2005 and 2016. The report identified a culture of secrecy and a failure of command oversight within specific special forces units.
The Office of the Special Investigator
Parallel to the civil litigation, the Australian government established the Office of the Special Investigator (OSI). The OSI is a police-led task force specifically mandated to investigate alleged war crimes committed by the Australian Defence Force in Afghanistan.
Unlike the civil trial, which focused on defamation and the reputation of Roberts-Smith, the OSI is tasked with gathering evidence to a criminal standard. This requires proof “beyond a reasonable doubt” to secure convictions for war crimes under the Rome Statute and Australian domestic law.
The OSI has spent several years reviewing thousands of pages of documents, interviewing witnesses, and analyzing forensic evidence. This process is designed to determine if the conduct described in the Brereton Report and the civil trial warrants formal criminal charges.
Institutional Response
The Australian Defence Force has stated it is cooperating with the OSI. The military has since implemented changes to its command structure and oversight mechanisms for special operations to prevent the recurrence of such conduct. The government has maintained that any individual found to have committed war crimes will be held accountable through the judicial system.
The legal proceedings against Roberts-Smith represent the first significant attempt to translate the systemic findings of the Brereton Report into individual legal accountability.
The Office of the Special Investigator continues its review of the evidence to determine if criminal charges will be filed.
