Ben Roberts-Smith, VC, Charged with Five Counts of War Crime Murder

Ben Roberts-Smith, Australia's most decorated living soldier, was arrested at Sydney Airport on Tuesday and charged with five counts of war crime murder. The charges were laid by the Office of Special Investigator following a five-year criminal investigation into alleged unlawful killings by Australian Defence Force personnel in Afghanistan.

Roberts-Smith, 47, holds the Victoria Cross, Australia's highest military honour, and the Medal for Gallantry. He served multiple tours with the Special Air Service Regiment in Afghanistan between 2009 and 2012, the period covered by the charges.

What the Charges Allege

AFP Commissioner Krissy Barrett said it would be alleged that Roberts-Smith "was a member of the ADF when he was involved in the deaths of Afghan nationals in circumstances that constitute war crimes under the Commonwealth criminal code."

Barrett said the alleged victims "were not taking part in hostilities at the time of their alleged murder" and that "the alleged conduct related to these charges is confined to a very small section of our trusted and respected ADF."

War crime murder under Australian federal law carries a maximum penalty of life imprisonment on each count. Roberts-Smith has consistently denied involvement in unlawful killings. A spokesman said on Tuesday he would vigorously contest the charges.

The OSI and the Brereton Report

The Office of Special Investigator was established by the federal government in 2021 to conduct criminal investigations arising from the Brereton Report, a four-year inquiry by the Inspector-General of the Australian Defence Force that found credible evidence of 39 unlawful killings of non-combatants and prisoners by Australian soldiers in Afghanistan.

OSI Director of Investigations Ross Barnett said Tuesday's charges were a "major step" reached under "challenging circumstances." He described the evidentiary difficulties facing investigators: "The challenge for investigators is that because we can't go to that country, we don't have access to the crime scene. We don't have photographs, site plans, measurements, the recovery of projectiles, blood spatter analysis, all of those things we would normally get at a crime scene."

Barnett said the OSI had commenced 53 investigations in total and that 39 matters had been provisionally finalised after investigators concluded they did not have sufficient evidence to refer a brief to the Director of Public Prosecutions. "The majority of the ADF do our country proud and serve with honour, distinction, and the values of a democratic nation," he said.

The Defamation Proceedings

Roberts-Smith's arrest follows years of civil and media proceedings. In 2023, Justice Besanko of the Federal Court found, on the balance of probabilities, that Roberts-Smith was responsible for the deaths of Afghan men during his Afghanistan deployments, in defamation proceedings he brought against Nine newspapers. The civil standard of proof requires a lower threshold than the criminal standard of proof beyond reasonable doubt. The defamation finding does not constitute evidence of criminal guilt.

Roberts-Smith appealed Justice Besanko's findings. The Full Federal Court dismissed that appeal in 2024. The interaction between those civil findings and the criminal proceedings will be a matter for the trial court to manage.

What Happens Next

Roberts-Smith is expected to appear in a Sydney court on Wednesday for a bail hearing. The Commonwealth Director of Public Prosecutions will prosecute. Given the complexity of the charges and the volume of material accumulated over the OSI's five-year investigation, a trial date is unlikely to be set for some time. Prime Minister Anthony Albanese declined to comment. "That is a matter that is very important that there not be political engagement in what is a matter that is now the subject of legal proceedings," Albanese said.