{"id":117812,"date":"2023-06-09T15:51:44","date_gmt":"2023-06-09T13:51:44","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=117812"},"modified":"2023-06-09T17:50:46","modified_gmt":"2023-06-09T15:50:46","slug":"first-civil-ruling-confirms-australia-war-crimes-afghanistan","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html","title":{"rendered":"A first (civil) ruling confirms Australia's war crimes in Afghanistan"},"content":{"rendered":"\n

It's 'just' a civil defamation case, but it has caused thunder in Australia. Soldier Ben Roberts-Smith lost the case against the media accusing him of war crimes in Afghanistan, and to establish this the media had to present evidence of his criminal responsibility. But justice remains to be done while criminal investigations continue in silence.<\/strong><\/p>\n\n\n\n\n\n\n\n

As Ben Roberts-Smith lay stretched out, sunning himself on a Bali pool deck<\/a> Justice Anthony Besanko of the Federal Court of Australia was putting the finishing touches on a 726 page judgment<\/a>, published on Monday June 5, that would confirm Roberts-Smith\u2019s fall from revered national hero to a \u201ccallous and inhumane\u201d criminal, who \u201cdisgraced his country\u201d by committing, on multiple occasions, the war crime of murder while deployed to Afghanistan with Australia\u2019s special forces (SAS). <\/p>\n\n\n\n

The proceedings, which were the equal longest in the Federal Court\u2019s history, concerned allegations made in three newspapers<\/a> in 2018 that Roberts-Smith had, among other things, kicked a unarmed Afghan civilian off a cliff<\/a>, and procured a soldier under his command to shoot him; pressured an inexperienced special forces soldier to execute an elderly, unarmed Afghan in order to \u201cblood the rookie<\/a>\u201d; and had killed an unarmed prisoner with a prosthetic leg<\/a> by machine-gunning him from close range.  <\/p>\n\n\n\n

While the verdict was a civil judgment in a defamation trial, criminal jeopardy remains for Roberts-Smith and the witnesses whose actions in Afghanistan were given a public airing at trial. Justice Besanko found that the Victoria Cross recipient was motivated to lie at trial \u201cto resist findings against him which may affect whether further action is taken against him,\u201d and noted that \u201cit is inherent in the finding of criminal conduct [at a civil trial] that that may increase the likelihood of the alleged actor being [criminally] charged.\u201d<\/p>\n\n\n\n

Highest degree for a defamation case<\/h2>\n\n\n\n

Roberts-Smith argued that the articles published by the journalists conveyed various defamatory imputations, including that he \u201ccommitted murder\u201d on numerous occasions within the meaning of the Geneva Conventions and Australia\u2019s complementary legislation, authorised unlawful killings and \u201cbashed\u201d an unarmed civilian. It was further pleaded by his lawyers that the articles conveyed the imputation that Roberts-Smith \u201cbroke the moral and legal rules of military engagement and is therefore a criminal.\u201d <\/p>\n\n\n\n

Roberts-Smith sought aggravated damages, the removal of the articles from media\u2019s websites and a permanent injunction restraining publication of the defamatory imputations, effectively gagging further reporting on war crimes allegations against the former soldier. <\/p>\n\n\n\n

The newspapers defended the imputations on the basis that they were substantially true \u2013 a notoriously difficult defence to prove in Australian defamation law. The newspapers were required to prove on the balance of probabilities that \u201cevery material part\u201d of the imputations were true. Given the gravity of the allegations, the degree of satisfaction required by the judge was high: \u201cwhere potential criminality is involved\u2026 exactness of proof is required,\u201d said Besanko.<\/p>\n\n\n\n

\u201cWhat is unusual in this case is not only did Roberts-Smith lead imputations of actual criminality rather than reasonable suspicion of criminality, it is also that the newspapers were able to establish the substantial truth of that conduct\u201d, explains Professor David Rolph, of the University of Sydney.<\/p>\n\n\n\n

\u201cIf you\u2019re proving actual criminal conduct, as [the newspapers] managed to do, they have to set out to prove to Ben Roberts-Smith actually murdered people, actually was complicit in the murder of people, and actually committed war crimes. That\u2019s much more forensically onerous than merely demonstrating that there is a reasonable suspicion of these things.\u201d<\/p>\n\n\n\n

That\u2019s why, in ruling in favour of the newspapers, Justice Besanko made a finding that it was true that Roberts-Smith was a criminal who \u201cbroke the legal rules of military engagement\u201d and committed multiple war crimes.<\/p>\n\n\n\n

\u201cBlooding the Rookie\u201d<\/h2>\n\n\n\n

The civil judgment therefore includes a finding that war crimes were committed under Australian and international law.<\/p>\n\n\n\n

On Easter Sunday 2009, Roberts-Smith and his troop were instructed to assault a compound code-named Whiskey 108. Persons 14 and 24 [the identities of SAS soldiers are protected] gave evidence for the newspapers that, in the lead up to the mission, they heard Person 5 (the troop commander and a close friend of Roberts-Smith) say in group settings that \u201cwe\u201d were going to \u201cblood the rookie,\u201d referring to Person 4, a member Roberts-Smith\u2019s troop.<\/p>\n\n\n\n

After securing the compound, the soldiers discovered a tunnel in a courtyard. Justice Besanko accepted the evidence of the newspapers\u2019 witnesses that two Afghan men emerged from the tunnel, surrendered and were placed under the control of the Australian troops. One man was elderly and the other had a prosthetic leg. <\/p>\n\n\n\n

Person 24 gave evidence that, around this time, he saw Roberts-Smith emerge from the compound holding the elderly man. He heard Person 5 shout at Person 4 saying \u201cget in here. Get in here now.\u201d At this point, Roberts-Smith approached Person 41, who was searching a room, and asked to borrow his silencer. He continued: <\/p>\n\n\n\n

\u201c[Roberts-Smith] then walked down and grabbed the Afghan male by the scruff of the shirt, picked him up and marched him a couple of metres forward [so] he was in front of Person 4. He then kicked him in the back of the legs behind the knees until he was kneeling down in front of Person 4. He pointed\u2026to the Afghani [sic] and said to Person 4, \u2018Shoot him\u2019.\u201d<\/p>\n\n\n\n

After averting his gaze, Person 41 looked back to see Person 4 standing \u201cin a bit of a state of shock,\u201d with \u201ca dead Afghan male at his feet.\u201d<\/p>\n\n\n\n

Roberts-Smith\u2019s account \u201chighly improbable\u201d<\/h2>\n\n\n\n

Further, Person 41 told the court that, after leaving the compound to search another area, he observed Roberts-Smith walking towards him. He had his machine-gun held up with his right arm and was \u201cfrog-marching [another] Afghan by the scruff of his neck with his left arm.\u201d This was the man with the prosthetic leg.<\/p>\n\n\n\n

\u201c[BRS] then proceeded to throw the Afghan male down onto the ground. The Afghan male landed on his back. [BRS] then reached down, grabbed him by the shoulder, flipped him over onto his stomach, and then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male. After he had done that, he looked up and saw me standing there, and he looked at me and said, \u2018Are we all cool? Are we good?\u2019 And I just replied, \u2018Yeah, mate, no worries.\u2019\u201d<\/p>\n\n\n\n

The man\u2019s prosthetic leg later found its way to the SAS base, where it was mounted and used as a drinking vessel.<\/p>\n\n\n\n

\"Former
Former Australian Special Forces soldier Ben Roberts-Smith drinking with his comrades-in-arms. Here they are seen drinking from the prosthetic leg of an Afghan civilian allegedly killed by Roberts-Smith on Easter Sunday 2009. \u00a9 DR.<\/figcaption><\/figure>\n\n\n\n

Justice Besanko found that the version of events led by the newspapers and described above was truthful, and was highly critical of the evidence of Roberts-Smith and his witnesses. Through a loan from the newspapers\u2019 media rival<\/a> Kerry Stokes, Roberts-Smith was paying the legal fees of Persons 5, 29 and 35, who all gave evidence supporting his contradictory version of events. Besanko found that Roberts-Smith\u2019s account was \u201chighly improbable,\u201d and he had motives to lie, including \u201cto resist findings against him which may affect whether further action is taken against him.\u201d<\/p>\n\n\n\n

The murder of Ali Jan <\/h2>\n\n\n\n

Another event is documented in detail in the ruling. On September 11 2012, Roberts-Smith participated in a mission to the village of Darwan, following up on intelligence that a rogue Afghan soldier was or had been in the village.<\/p>\n\n\n\n

Towards the end of the mission, Roberts-Smith and others were clearing compounds in the area. In one, they found three fighting-age males, who were handcuffed and rendered hors de combat. One of the men was named Ali Jan.<\/p>\n\n\n\n

An Afghan witness, Mohammed Hanifa, told the court from a secure location in Kabul that he was taken outside with Ali Jan and questioned by the Australians. He recalled being punched and kicked by \u201cthe big soldier\u201d while pressed up against a wall. Another Afghan witness, Shahzada Faith described seeing \u201cthe big soldier\u201d make Ali Jan stand up and walk over to the edge of an escarpment overlooking a dry creek bed.<\/p>\n\n\n\n

Person 4 told the court that Ali Jan was made to stand with his back towards the large slope, and was held by Person 11. At this point, Roberts-Smith \u201cwalked forward and kicked [Ali Jan] in the chest\u2026 [he] was catapulted backwards and fell down the slope.\u201d Person 4 saw Ali Jan\u2019s face strike a rock on the way down, causing him to lose a number of teeth. After Ali Jan was brought back to his feet, he then saw Person 11 have a quick conversation with Roberts-Smith. After hearing shots ring out, he turned back to see Person 11 with his rifle raised next to a dead body. <\/p>\n\n\n\n

When Person 4 next saw the body, the handcuffs had been removed and a radio placed on the body in an effort to indicate that Ali Jan had been a combatant. It was photographed in this state and used to support an official report of events agreed upon by the soldiers after the mission. <\/p>\n\n\n\n

As with the incidents at Whiskey 108, Justice Besanko found that Roberts-Smith\u2019s case contained \u201ca number of improbabilities\u201d and that he \u201cdiscussed his evidence at length\u201d with Person 11, his only supporting witness, prior to the trial. <\/p>\n\n\n\n

The newspapers were also able to prove that Roberts-Smith committed another murder in an October 2012 mission to the village of Chinartu. The court found that \u201cthrough an interpreter [BRS] ordered Person 12 to shoot an Afghan male who was under detention \u2026 Roberts-Smith was complicit in and responsible for murder.\u201d <\/p>\n\n\n\n

Ongoing war crimes reckoning<\/h2>\n\n\n\n

The defamation judgment marks the end of the beginning of Australia\u2019s war crimes reckoning. The media reports which first brought allegations of war crimes into the public consciousness have been proven largely to be true, outing one of Australia\u2019s most decorated soldiers as a war criminal and revealing the complicity of other members of the SAS. <\/p>\n\n\n\n

Professor Melanie O\u2019Brien of the University of Western Australia says \u201cthat\u2019s what makes this case so interesting, because [war crimes being contested in a civil trial] is something that hasn\u2019t been seen before\u2026.it\u2019s certainly not the usual way to go about dealing with war crimes.\u201d<\/p>\n\n\n\n

However, as the usually sensitive details of conflict incidents received a public and dramatic open court hearing, the official war crimes investigation continues. Representatives of the Federal Police and the Office of the Special Investigator (OSI) sat through the entirety of the trial, and it was revealed during the hearings that Roberts-Smith was being investigated by the OSI. <\/p>\n\n\n\n

While the evidence given at the civil trial will not be directly admissible in criminal court, by launching the defamation case, Roberts-Smith has locked himself into a version of events<\/a> found by a judge to be not credible, and the result of collusion. Efforts to conceal evidence and intimidate witnesses may also be led as evidence of consciousness of guilt. Indeed, as O\u2019Brien says, \u201cthe first thing we may see is charges laid for threatening witnesses<\/a>.\u201d<\/p>\n\n\n\n

The investigation will continue outside of the public eye, but the very public civil case effectively implicates a number of other former soldiers who gave evidence. The OSI told the Senate in May that it was \u201ccurrently progressing approximately 40 matters.\u201d<\/p>\n\n\n

\r\n\t\t\t\t\t\r\n\t\t\t
Recommended reading<\/div>\r\n\t\t\t
\"War<\/div><\/a>\r\n\t\t\t\r\n\t\t\tWar crimes and press freedom battle in Australia\r\n\t\t<\/a>\r\n\t\t\r\n\t\t\t\t<\/div>\n","protected":false},"excerpt":{"rendered":"

It's 'just' a civil defamation case, but it has caused thunder in Australia. Soldier Ben Roberts-Smith lost the case against the media accusing him of war crimes in Afghanistan, and to establish this the media had to present evidence of his criminal responsibility. But justice remains to be done while criminal investigations continue in silence.<\/p>\n","protected":false},"author":98,"featured_media":117837,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[566],"tags":[2683],"ji_location":[2571,2109],"class_list":["post-117812","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-national-tribunals","tag-war-crime","ji_location-afghanistan","ji_location-australia"],"acf":[],"yoast_head":"\nAustralia: Roberts-Smith case confirms war crimes in Afghanistan<\/title>\n<meta name=\"description\" content=\"This defamation case, which caused quite a stir in Australia, could move from civil to criminal proceedings. 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Australian soldier Ben Roberts-Smith has lost his case against the media accusing him of war crimes in Afghanistan.","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html","og_locale":"en_US","og_type":"article","og_title":"A first (civil) ruling confirms Australia's war crimes in Afghanistan","og_description":"This defamation case, which caused quite a stir in Australia, could move from civil to criminal proceedings. Australian soldier Ben Roberts-Smith has lost his case against the media accusing him of war crimes in Afghanistan.","og_url":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html","og_site_name":"JusticeInfo.net","article_publisher":"https:\/\/www.facebook.com\/JusticeInfo\/","article_published_time":"2023-06-09T13:51:44+00:00","article_modified_time":"2023-06-09T15:50:46+00:00","og_image":[{"width":1200,"height":742,"url":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Australia_Ben-Roberts-Smith_@The-VC-and-GC-association.jpg","type":"image\/jpeg"}],"author":"Maxim Shanahan","twitter_card":"summary_large_image","twitter_creator":"@maximshanahan","twitter_site":"@justiceinfonet","twitter_misc":{"Written by":"Maxim Shanahan","Est. reading time":"10 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"NewsArticle","@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#article","isPartOf":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html"},"author":{"name":"Maxim Shanahan","@id":"https:\/\/www.justiceinfo.net\/en\/#\/schema\/person\/510392aefd2bcd8713c7d5b7505c9bb6"},"headline":"A first (civil) ruling confirms Australia's war crimes in Afghanistan","datePublished":"2023-06-09T13:51:44+00:00","dateModified":"2023-06-09T15:50:46+00:00","mainEntityOfPage":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html"},"wordCount":1907,"commentCount":0,"publisher":{"@id":"https:\/\/www.justiceinfo.net\/en\/#organization"},"image":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#primaryimage"},"thumbnailUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Australia_Ben-Roberts-Smith_@The-VC-and-GC-association.jpg","keywords":["war crime"],"articleSection":["National tribunals"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html","url":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html","name":"Australia: Roberts-Smith case confirms war crimes in Afghanistan","isPartOf":{"@id":"https:\/\/www.justiceinfo.net\/en\/#website"},"primaryImageOfPage":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#primaryimage"},"image":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#primaryimage"},"thumbnailUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Australia_Ben-Roberts-Smith_@The-VC-and-GC-association.jpg","datePublished":"2023-06-09T13:51:44+00:00","dateModified":"2023-06-09T15:50:46+00:00","description":"This defamation case, which caused quite a stir in Australia, could move from civil to criminal proceedings. Australian soldier Ben Roberts-Smith has lost his case against the media accusing him of war crimes in Afghanistan.","breadcrumb":{"@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html"]}]},{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#primaryimage","url":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Australia_Ben-Roberts-Smith_@The-VC-and-GC-association.jpg","contentUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/Australia_Ben-Roberts-Smith_@The-VC-and-GC-association.jpg","width":1200,"height":742,"caption":"Ben Roberts-Smith at his Victoria Cross award ceremony in 2011. The war hero's defamation lawsuit against The Age, The Sydney Morning Herald and The Canberra Times over war crimes in Afghanistan has turned into an even greater exposure of the serious crimes committed by Australian troops in that country. \u00a9 The VC and GC Association"},{"@type":"BreadcrumbList","@id":"https:\/\/www.justiceinfo.net\/en\/117812-first-civil-ruling-confirms-australia-war-crimes-afghanistan.html#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.justiceinfo.net\/en"},{"@type":"ListItem","position":2,"name":"A first (civil) ruling confirms Australia's war crimes in Afghanistan"}]},{"@type":"WebSite","@id":"https:\/\/www.justiceinfo.net\/en\/#website","url":"https:\/\/www.justiceinfo.net\/en\/","name":"JusticeInfo.net","description":"For justice to be done, it must be seen","publisher":{"@id":"https:\/\/www.justiceinfo.net\/en\/#organization"},"potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.justiceinfo.net\/en\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.justiceinfo.net\/en\/#organization","name":"Justice Info","url":"https:\/\/www.justiceinfo.net\/en\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.justiceinfo.net\/en\/#\/schema\/logo\/image\/","url":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/justiceinfo_logo-trans_1200x1200px.png","contentUrl":"https:\/\/www.justiceinfo.net\/wp-content\/uploads\/justiceinfo_logo-trans_1200x1200px.png","width":1199,"height":1200,"caption":"Justice Info"},"image":{"@id":"https:\/\/www.justiceinfo.net\/en\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/JusticeInfo\/","https:\/\/x.com\/justiceinfonet","https:\/\/www.linkedin.com\/company\/justice-info","https:\/\/www.youtube.com\/channel\/UCyCEsARodyuWtkWyhn-e7pA"]},{"@type":"Person","name":"Maxim Shanahan","sameAs":["https:\/\/x.com\/maximshanahan"],"url":"https:\/\/www.justiceinfo.net\/en\/auteur\/maximshanahan"}]}},"_links":{"self":[{"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/posts\/117812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/users\/98"}],"replies":[{"embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/comments?post=117812"}],"version-history":[{"count":17,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/posts\/117812\/revisions"}],"predecessor-version":[{"id":117866,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/posts\/117812\/revisions\/117866"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/media\/117837"}],"wp:attachment":[{"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/media?parent=117812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/categories?post=117812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/tags?post=117812"},{"taxonomy":"ji_location","embeddable":true,"href":"https:\/\/www.justiceinfo.net\/en\/wp-json\/wp\/v2\/ji_location?post=117812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}