The Libel Case Confirming Australian War Crimes in Afghanistan
The Verdict against Ben Roberts-Smith
Australia’s “trial of the century” concluded earlier this month in Sydney in a moment that captured international headlines. A man commonly described as Australia’s most decorated living soldier, former Special Air Service Regiment (SASR) Corporal Ben Roberts-Smith, had brought a libel case claiming he had been defamed by allegations he was murderer, a war criminal, and a bully made by several Australian newspapers. These allegations arose out of his SASR service in Afghanistan, particularly incidents in 2009 and 2012. Devastatingly, the trial judge, Justice Anthony Besanko, found the key allegations against Mr Roberts-Smith – including four allegations of murder – to be “substantially true” and dismissed the case in its entirety. In addition, Justice Besanko concluded that Mr Roberts-Smith had lied to the court, colluded with his witnesses, assaulted detained Afghan nationals, and bullied junior colleagues.
It is difficult to explain how this case came about in the sober language that the facts demand, in part because of the bizarre directions this litigation and some of the evidence led. The case has included accounts of petrol doused laptops being set alight, USB drives buried in a backyard in a pink plastic children’s lunchbox, souvenir glassware being made in the shape of a prosthetic leg looted from a dead body, a character witness admitting to attending a fancy dress party in Afghanistan in Ku Klux Klan robes “because he didn’t want to pay for a [new] costume,” and the then Assistant Minister of Defence giving evidence that during his time in the SASR some had fallen into a “pagan warrior ethos” where “killing was a sacrament in itself.” Originally set down for a very long ten weeks, the case assumed a momentum of its own. The trial ran for an extraordinary 110 hearing days, and heard from 41 witnesses – many of them SASR whistleblowers. It is estimated to have cost between AUD $25-40 million in legal fees. It became the case the Australian legal, military, and wider community could not look away from. An extended account is available in the Guardian newspaper’s podcast Ben Roberts-Smith versus the media.
In the remainder of this post I will attempt to explain the context in which the case arose, what the Court found, and what comes next.
The Legal Context
Australian libel – or defamation – law is notoriously plaintiff friendly. We lack a “public figure” defense and the Roberts-Smith case arose before a new public interest defense became available in the state of New South Wales. The respondent newspapers thus had to prove the truth of their allegations. While this was a civil proceeding conducted on the balance of probabilities, this does not mean the respondents had simply to prove their allegations were more likely true than not. This is due to the “Briginshaw principle” which requires that when assessing the truth of a serious allegation a judge must reach a commensurately high standard of satisfaction. Notably, Justice Besanko only made key findings of fact on issues where there were multiple eyewitness accounts supporting the conclusions reached. The rigor of Justice Besanko’s fact-finding is evident in his 617 page judgment, a length to rival the decisions of many international criminal tribunals.
It bears emphasizing that, unbelievably in retrospect, the case was brought by Mr Roberts-Smith himself. At the time he commenced proceedings he knew he was a figure of interest to the Inspector-General of the Australian Defence Force’s (IGADF) inquiry into allegations of war crimes in Afghanistan which resulted in the 2020 Brereton Report. He described being interviewed for the IGADF inquiry as the most traumatic episode of his life. Indeed, Mr Roberts-Smith was found to have attempted to intimidate a witness precisely because he knew he was under IGADF investigation (see e.g. para. 2346). The possibility, or probability, of his subsequently being criminally prosecuted for war crimes must have been in his contemplation. Nevertheless, he effectively challenged newspapers to call their sources – including SASR whistleblowers – as witnesses and prove him a war criminal on the balance of probabilities. Thus, the course of proceedings only tended to put further evidence of criminal conduct in the public domain.
In an interesting interaction between the IGADF investigation and the defamation case, the lawyers for the newspapers subpoenaed the copy of the “potentially affected persons” notice served on Roberts-Smith informing him of potential findings against him. The respondents obtained a heavily redacted copy of the notice, giving them leads on witnesses they had not previously identified (paywalled link). The honor and integrity of these SASR witnesses must be acknowledged. While summoned by the court to appear, in practice they could easily not have attended. They did so in service to the truth.
In a further peculiarity of Australian defamation law, the plaintiff must plead the defamatory imputations (meanings) conveyed by a publication. There is therefore an incentive for a plaintiff to frame the imputations in the worst possible light and thus create a high bar for respondents to clear. The imputations pled by Roberts-Smith thus included not only that he had committed murder and engaged in “blooding rookies” but also that he “broke the moral and legal rules of military engagement and is therefore a criminal,” that he “disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan,” and that he is “so callous and inhumane that” having murdered a man with a prosthetic leg “he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel.” Justice Besanko found all of these allegations, in those terms, to be substantially true. This conclusion was so devastating to Mr Roberts-Smith’s reputation that even where the newspapers failed to prove the truth of certain allegations (such as an act of domestic violence), Justice Besanko ruled these additional allegations did no further damage to Mr Roberts-Smith’s reputation. (In Australian law this is the defence of “contextual truth”).
Impact
The decision has had a consequential impact in Australia. It is a court ruling that confirms allegations of war crimes in Afghanistan. Hair-splitting arguments that there have been no findings of guilt on a criminal standard ring hollow. While Mr Roberts-Smith is entitled to the presumption of innocence in any subsequent criminal proceedings, questions of fact have been proven in a court of law to a standard that would certainly meet the judgment of history.
The mood is sober and reflective among distinguished military commentators such as retired Major General Mick Ryan; and one of relief in media circles that – at great expense – highly-professional investigative journalism has been vindicated. The reverberations are, nonetheless, still being felt and there is a great deal yet to play out. The impact on Australian culture more widely is also yet to be seen. While all nations hold their military in high esteem, a feature of our national story is the idea that a separate Australian identity was born, not at the moment of federation in 1901, but in the disastrous Australian and New Zealand Army Corps (ANZAC) Gallipoli landing of 1915. The “ANZAC legend” remains a distinct part of the national psyche. Indeed, Mr Roberts-Smith features prominently in the exhibit devoted to Afghanistan at the Australian War Memorial, and there is now a genuine and fierce debate as to whether he should be stripped of his medals, including Australia’s highest military honor, the Victorian Cross.
What Did the Case Decide?
Again, it bears stating that the case found a number of allegations to be “substantially true” on the balance of probabilities and taking into account the gravity of accusations. While not a criminal finding beyond reasonable doubt, as noted, the standard applied here was higher than a bare threshold of “more likely than not,” and each major finding relies on the evidence of multiple witnesses.
The key episodes in contention were: the killing of a captured man with a prosthetic leg in 2009 at a compound referred to as W108; a “blooding the rookie” incident the same year in which Mr Roberts-Smith allegedly ordered a junior soldier to execute an elderly civilian who posed no threat, also at W108; the killing of Mr Ali Jan in Darwan village in 2012; and a claim that he ordered an Afghan soldier to execute a prisoner at a compound in Chinartu in 2012. Justice Besanko found that Roberts-Smith committed or was complicit in these four murders. All of these killings were of “persons under control” and were in no way in the heat of battle. Such murders of persons hors de combat would plainly constitute a war crime.
The W108 compound allegations concerned a 2009 raid and whether two men were found in a tunnel and executed afterwards while under Australian control or, instead, had been lawfully killed as “squirters” (enemy combatants fleeing the scene) during the engagement. Here the court found in respect of Mr Roberts-Smith and Person 4 (“the Rookie”):
that two Afghan males who were later designated EKIA56 and EKIA57 came out of the tunnel in the courtyard at W108 and were placed under confinement by Australian soldiers; . . . that EKIA56 was executed by Person 4 in the tunnel courtyard at the direction of the applicant; and . . . that EKIA57 was executed by the applicant outside the north-western corner of W108.
Here the findings are both that Mr Roberts-Smith committed murder and that he ordered “the Rookie” to commit murder. One of the murdered individuals had a prosthetic leg. The court found that it was “not known on the evidence who took the prosthetic leg back to Australia,” but that Mr Roberts-Smith “did encourage his soldiers to use it as a novelty beer drinking vessel.”
In relation to the killing of Mr Ali Jan at Darwan in 2012 the court found, based in part on the evidence of Afghan witnesses testifying remotely (at para 1368):
Shortly prior to the extraction from Darwan, Ali Jan, who was handcuffed at the time, was taken to a position . . . adjacent to a small cliff to the dry creek bed below or a steep slope to the dry creek bed below. He was held by the shoulder by Person 11 and facing the applicant. The applicant took some steps back and then moved forward and kicked Ali Jan off the small cliff or steep slope into the dry creek bed below; . . . Ali Jan injured his face and teeth in the course of his fall from the small cliff or steep slope . . . At the applicant’s direction or order, Persons 11 and 4 carried the injured and handcuffed Ali Jan from the position at which he had fallen to a cornfield on the opposite side of the dry creek bed . . . The applicant and Person 11 conferred briefly. Person 11 shot Ali Jan who at that point was standing and still handcuffed. The applicant was only four or five metres away at that point. I infer that the applicant and Person 11 agreed that Ali Jan would be shot . . .
These findings of fact plainly implicate other SASR personnel in crimes, at the very least Person 4 (again) and Person 11.
On the final allegation the court found (at para 1537):
that in a compound in Chinartu on 12 October 2012, the applicant, through an interpreter (Person 13) ordered Person 12 [the Commander of the Afghan partner force] to shoot an Afghan male who was under detention . . . Person 12 then gave instructions to an NDS-Wakunish soldier who then shot the Afghan male in circumstances amounting to murder. The applicant was complicit in and responsible for murder.
NDS is the term for Afghan Partner Force soldiers who were “also known at the time as Wakunish or Wakas” (para 957). These Afghan troops were deployed alongside Coalition forces for “mentoring.”
While these allegations had been reported for some time, and while there had been daily coverage of witness testimony in the trial, reading Justice Besanko’s clinically-stated conclusions remains profoundly shocking.
What Comes Next?
First, it is entirely possible Mr Roberts-Smith may appeal. An appeal would lie in the first instance to a full bench of the Federal Court. The most obvious line of attack on appeal would be that the correct legal test was not applied in reaching factual findings at trial, given the serious nature of the allegations. However, Justice Besanko took a very conservative approach in his fact finding, concluding no more than he needed to and usually only where he had multiple eyewitnesses.
Second, it is widely perceived that this may bring a degree of public pressure for the Office of the Special Investigator (OSI) to charge Mr Roberts-Smith. The OSI is a special investigatory body that was set up in 2020 in the wake of the Brereton Report to investigate and prosecute potential Australian war crimes in Afghanistan. It is, however, unlikely that this decision will influence OSI much one way or another. OSI investigations have been proceeding in parallel for some time and a first person was charged in March 2023. While there is a perception in some quarters the OSI may have been slow moving thus far, war crimes prosecutions are obviously complex and the progress from establishment to a first person being charged is relatively prompt by international standards. Nonetheless, it will likely be easier to progress any criminal case once related civil proceedings are concluded.
Third, there are calls for greater leadership accountability as relates to the Australian prosecution of the war in Afghanistan. This proceeds on two lines. One examines the question of chain of command accountability (who knew what, when?) under Australian federal criminal law. I have explored the implications for Australian military leadership, and the possibility of OSI prosecutions under the command responsibility doctrine, with Joanna Kyriakakis and Mel O’Brien here. The other possibility is a public inquiry along the lines of the UK’s Chilcot Report into the Iraq war, examining the responsibility of successive Australian governments for sending only special forces into Afghanistan, and doing so with a heavy tempo of rotations and increasingly unclear mission objectives. Indeed, the SASR became a kind of “mega-infantry” unit and a go-to tool of foreign policy in a manner at odds with its original mission of surveillance, reconnaissance, and intelligence. The mechanism for such a statutory inquiry in Australia would likely be a Royal Commission headed by a retired judge.
Fourth, the case has a range of cultural and societal implications for Australia. The question of how to treat the display featuring Mr Roberts-Smith at the nation’s preeminent museum of armed conflict, the Australian War Memorial, has been noted above. It is also not clear that this is the obvious win for press freedom in Australia many have considered. By generally requiring multiple eyewitnesses to reach a finding of “substantial truth,” Justice Besanko did not in any way widen this defense for newspapers. We will have to see how the relatively new “public interest” defense plays out. There is also the question of civil/military relations. As Mick Ryan has pointed out “no senior military leader provided written advice to government of the risk of protracted multiple deployments by a small pool of people;” and too many of our political leaders (and, indeed, members of the public) have often taken the view that what our armed services do abroad should be beyond questioning or investigation. We need a clearer sense of mutual responsibility and a better public understanding that war is not a theater in which everything is allowed.
Concluding Thoughts
Between the Brereton Report and the Ben Roberts-Smith civil trial, Australia is at least beginning to engage in a difficult national conversation about the consequences of war crimes being committed by persons wearing our flag. This is a conversation that will only become more pressing as the work of the OSI continues and criminal trials begin. As one former chief of the Australian Defence Force has said, though, this has the potential to be a “good day” for our military and society. If a defence force wishes to be a force for good, it must have the courage to hold its own to account. And thus far, we have perhaps done a better job than some of our partner nations. Here, a group of SASR personnel had the courage to tell the truth, and a group of journalists and their publishers were brave enough to shine a light on it.
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Douglas Guilfoyle is Professor of Law and International Security at the University of New South Wales Canberra and a 2022-2025 Australian Research Council Future Fellow.
Photo credit: Office of Governor-General of the Commonwealth of Australia
