The $30 Million Verdict and Its Aftershocks: How the Roberts-Smith Case Will Reshape Accountability in Modern Warfare
Over $30 million. That’s the estimated cost of the legal battle waged by Ben Roberts-Smith, the decorated former SAS soldier, against Nine Newspapers – a battle he ultimately lost with the High Court’s refusal to hear his appeal. This isn’t just a story about defamation and a tarnished reputation; it’s a watershed moment that will likely redefine the landscape of accountability for alleged war crimes, the power dynamics between media and military figures, and the future of legal challenges in similar cases. The implications extend far beyond Australia, signaling a potential shift in how allegations of misconduct in conflict zones are investigated and adjudicated.
The Core Allegations: A Summary of the Case
The case stemmed from a series of articles published in 2018 by The Sydney Morning Herald and The Age, alleging that Roberts-Smith was involved in the unlawful killing of four unarmed Afghan civilians. These weren’t abstract accusations. The reports detailed horrific acts: kicking a handcuffed man, Ali Jan, off a cliff and then arranging for him to be shot; machine-gunning an unarmed prisoner during a raid on a compound known as Whiskey 108; and standing by while a junior soldier executed an elderly Afghan man to gain his first “kill.” Justice Anthony Besanko of the Federal Court found these allegations to be substantially true, a devastating verdict for Roberts-Smith, who maintained his innocence throughout.
The High Court’s Decision: Why It Matters
The High Court’s decision to deny special leave to appeal effectively closes the door on Roberts-Smith’s legal challenges. This isn’t simply about one man’s fate. It reinforces the Federal Court’s findings and sends a powerful message about the importance of a free press in holding individuals accountable, even those with distinguished military service. The refusal to hear the appeal, coupled with the substantial costs awarded to Nine Newspapers, sets a high bar for future defamation cases brought by individuals against media outlets reporting on allegations of serious misconduct. The case highlights the difficulties in overturning findings of fact made by lower courts, particularly when supported by multiple eyewitness accounts.
Eyewitness Testimony and the Burden of Proof
A key factor in both the Federal Court and High Court decisions was the weight given to eyewitness testimony. The Full Federal Court specifically noted the “problem” for Roberts-Smith presented by the three eyewitnesses who corroborated the allegations of murder at Whiskey 108. This underscores the critical role of credible witnesses in war crimes investigations and legal proceedings. The case also demonstrates the high burden of proof required to successfully challenge such testimony, particularly in the context of complex and often chaotic battlefield situations. The concept of International Humanitarian Law (IHL) was central to the court’s considerations.
The Future of Accountability: What’s Next?
While Roberts-Smith has not been charged with criminal offenses, the civil court findings have significant implications. The Brereton Inquiry, a separate investigation into alleged war crimes committed by Australian special forces in Afghanistan, also found credible evidence of wrongdoing. The Roberts-Smith case, and the public scrutiny it generated, has undoubtedly increased pressure for further investigation and potential prosecution of those implicated in the Brereton Report.
We can anticipate several key trends emerging from this case:
- Increased Scrutiny of Military Conduct: The case will likely embolden journalists and investigative bodies to pursue reporting on alleged misconduct by military personnel, knowing that the courts are willing to uphold findings of fact based on credible evidence.
- Strengthened Legal Frameworks: There may be calls for stronger legal frameworks to address war crimes and ensure accountability for those accused of such offenses.
- Greater Emphasis on Witness Protection: Protecting witnesses who come forward with information about alleged war crimes will become even more crucial, given the potential for intimidation and retribution.
- The Rise of Strategic Lawsuits Against Public Participation (SLAPPs): The Roberts-Smith case serves as a cautionary tale about the use of defamation lawsuits to silence critical reporting. Expect increased awareness and potential legal challenges to SLAPPs aimed at stifling public interest journalism.
Beyond Australia: A Global Precedent
The ramifications of this case extend beyond Australian borders. It sets a precedent for how similar allegations of misconduct in conflict zones will be handled in other countries. The willingness of the courts to uphold the findings of a free press, even against a highly decorated soldier, is a significant development that could encourage greater transparency and accountability in military operations worldwide. The case also highlights the importance of independent investigations and the need to protect whistleblowers who expose wrongdoing. The principles established in this case could influence future legal battles concerning alleged atrocities in conflicts in Ukraine, Yemen, and elsewhere.
The Roberts-Smith saga is far from over, even with the legal appeals exhausted. It’s a stark reminder that even those lauded as heroes are not above scrutiny, and that the pursuit of truth and accountability must remain paramount, especially in the context of war. What impact will this case have on the morale and culture within the Australian Defence Force? Share your thoughts in the comments below!
