The highly decorated war hero spent more than a week in prison before being released on bail, last Friday, April 17, after he was charged with war crimes charges pertaining to the alleged killing of Afghan civilians while the Australian special forces were deployed to fight the Taliban.
Despite the time it has taken – some of the alleged offenses were committed more than fifteen years ago – the arrest of Ben Roberts-Smith can be seen as a step towards vindication of Australia’s methodical approach to accountability for military operations, in contrast to overturned convictions and stalled inquiries in the United States and United Kingdom.
But to date, no person has ever been convicted of war crimes in contemporary Australia, and prosecutors will have to battle to prove an unprecedented offence to an untainted jury, in a case which has captivated the country since the first media reporting on war crimes allegations almost a decade ago.
The Schultz trial, a test
The sensational arrest is the result of a joint investigation between the Australian Federal Police and the Office of the Special Investigator (OSI), a specialized unit formed to examine the “credible information” uncovered by an independent report in 2020 that found about 20 Australian soldiers may have killed civilians and detainees in Afghanistan.
In a press conference following Roberts-Smith’s arrest, OSI Director Ross Barnett said his office had commenced 53 investigations into allegations of war crimes. 39 of those had been closed without enough evidence, while 10 more remain under active investigation. One other former soldier, Oliver Schultz, was arrested in 2023 and charged with the murder of Afghan civilian Dad Mohammed, footage of whose shooting was broadcast by Australian media outlets.
Schultz’s trial is likely to begin only next year, four years after his arrest. The delay can be attributed to the complexity of gathering evidence, and a desire from prosecutors to avoid progressing the matter at the same time as Roberts-Smith pursued a civil defamation case relating to accusations of war crimes.
Professor Melanie O’Brien, of the University of Western Australia, says that “one of the biggest challenges is they are investigated crimes committed in Afghanistan fifteen years ago in a war zone. Investigators can’t access the country, the crime scene and it is difficult to talk to many of the witnesses.”
Regardless of the timing, the Schultz trial will prove a crucial litmus test for prosecutors in the high-stakes and more complex Roberts-Smith case. Discounting difficulties with availability of witnesses and the passage of time, grey-area issues such as proportionality will need to be addressed and developed as a point of law during the trial. Any difficulties in the first war crime trial may also hinder the future, including in the Roberts-Smith case.
Professor Don Rothwell, of the Australian National University, says that the Schultz case “is the test case for how the law works, and how the procedures will be applied before the courts”. “It will also test and probe the way in which foreign evidence [from Afghanistan] will be presented in a war crimes matter. There will be an enormous number of lessons learned for the Roberts-Smith prosecution and defence from how the Schultz matter proceeds”.
Further difficulties
The Roberts-Smith case also presents greater complexity than the Schultz case. Firstly, unlike with Schultz, there is no known footage of the alleged murders, meaning prosecutors will have to prove the charges by relying entirely on testimonies from former colleagues and Afghan witnesses.
There are also five separate charges brought against Roberts-Smith relating to incidents between 2009 and 2012, all of which will need to be proven separately. Some of the charges involve incidents where Roberts-Smith is accused of aiding or abetting murders by subordinate soldiers, creating a further element of responsibility for prosecutors to prove.
Rothwell says that this complexity means that “this trial is not going to happen soon”. “The defence will be seeking every legitimate opportunity to delay the matter. In any criminal trial, proving five murders would pose incredible challenges. The fact these are novel war crimes adds another layer of difficulty.”
A jury trial
As war crimes are a federal offence, the option of a judge-alone trial is not available. Instead, prosecutors will have to persuade a jury beyond a reasonable doubt. Given the extensive publicity and notoriety of Roberts-Smith, and the political stakes for the state, jury selection has already emerged as a potential sticking point.
In criminal trials, jurors are not to conduct their own research on a matter and must ignore prior reporting or court findings relating to the accused. Roberts-Smith has already lost a civil defamation case where he was found, on the lesser standard of the balance of probabilities, to have committed many of the acts which are likely to form part of the criminal prosecution.
Four witnesses from the unsuccessful defamation have been given immunity from future prosecution in return for testifying in the criminal trial, it was revealed at Roberts-Smith’s bail hearing.
Despite a (civil) ruling that Roberts-Smith “was complicit in and responsible for murder”, jurors and the prosecution will have to ignore the findings in this case, which was one of the longest in the history of Australia’s Federal Court and involved secret hearings to protect the identities of special forces witnesses and heard witness testimony from Afghanistan.
While the Federal Police made a dramatic airside arrest there is a long road ahead to reaching a trial, let alone a conviction. The matter will now be handed to the prosecutions department, which will have the final say as to whether the evidence warrants a trial, and has the power to withdraw charges if a trial does not have realistic prospects of success.
The decorated veteran faces now a lengthy period where he is forced to comply with strict bail conditions, including surrendering his passport and a prohibition on contacting soldiers he served with in Afghanistan.
