MELBOURNE, Australia (AP) – Ben Roberts-Smith, Australia’s most decorated living veteran, has been granted bail after being charged with war crimes related to the deaths of five individuals during his service in Afghanistan. The decision was made by Judge Greg Grogin in a Sydney court on Friday, just ten days post-arrest. Roberts-Smith, a former Special Air Service Regiment corporal, had been charged with five counts of war crime murder concerning the unlawful killings of Afghans in Uruzgan province in the years 2009 and 2012.
The Australian legal framework defines war crime murder as the intentional killing of a person who is not actively participating in hostilities, such as civilians, prisoners of war, or wounded soldiers. Roberts-Smith, aged 47, was taken into custody on April 7, 2023, becoming only the second Australian veteran of the Afghanistan campaign to face such serious charges after being awarded both the Victoria Cross and the Medal of Gallantry for his service.
The charges are rooted in a military report released in 2020, which revealed that elite Australian SAS and commando regiment troops had unlawfully killed 39 Afghan prisoners, farmers, and other noncombatants. Between 2001 and 2021, approximately 40,000 Australian military personnel served in Afghanistan, during which time 41 were killed in action.
Previously, allegations against Roberts-Smith were found credible in a civil court case in 2023. During that trial, the court rejected his claims of defamation against newspapers and established that the war crimes allegations were largely proven on a balance of probabilities. In his testimony, Roberts-Smith claimed he never shot an unarmed Afghan and dismissed the allegations as fabrications spread by envious fellow soldiers.
While the civil proceedings concluded with a finding of credibility against him, the war crime murder charges must be proved in a criminal court, which requires a higher standard of evidence beyond a reasonable doubt. He is accused of directly shooting two victims and ordering the execution of three others.
During the bail hearing, prosecutor Simon Buchen highlighted the severity of the charges, characterizing them as some of the most serious under criminal law. He expressed concern that Roberts-Smith was on the verge of relocating overseas without notifying authorities when he became aware that prosecutors were pursuing charges against him. Buchen detailed that Roberts-Smith had made advanced plans to move to various destinations abroad.
The potential penalties for Roberts-Smith are also grave, with each war crime murder conviction carrying a maximum sentence of life imprisonment. As of this writing, he has yet to enter pleas for the charges against him.
Defense attorney Slade Howell articulated that this case is exceptional, noting the unprecedented nature of using domestic courts to prosecute an alleged war crime against a decorated soldier serving abroad. He emphasized that the legal proceedings are likely to encounter a multitude of delays, partly due to the complex nature of the case and the possibility that prosecutors may pursue charges against other veterans, some of whom are currently residing overseas.
Roberts-Smith participated in the bail hearing via video link and confirmed his ability to see and hear the proceedings when prompted by the judge.
