Medals, alleged war crimes, and the long road to court
- Grant McLachlan
- 9 minutes ago
- 24 min read
Ben Roberts-Smith was decorated as Australia’s ultimate warrior. He was feted by royalty, bankrolled by a media billionaire, and given a television career. When fellow soldiers alleged he had committed war crimes in Afghanistan, he reached for the law to silence them. It did not work. Now, eight years after the first stories broke, he faces criminal trial on five counts of war crime murder. The lesson from this long, ugly saga is not complicated: popularity is not innocence, good deeds do not cancel bad ones, and no amount of institutional armour makes a man above the law.
Contents
Questions under oath: What his peers said
The post-VC career: Profile, privilege, and Seven
The trial of the century: 110 days, 41 witnesses
Were any coalition soldiers charged? The American comparison
The Australian record: a history without prosecution
Victor's justice, or universal justice?
From civil to criminal: The Brereton report and Operation Emerald-Argon
The Ricardo Klement Principle
Consider a question. If a soldier commits a war crime in April 2009, and that crime is neither investigated nor prosecuted, and the same soldier goes on to perform an act of conspicuous gallantry in June 2010 for which he is awarded his country’s highest military honour — do the gallantry and the honour cancel the earlier crime? Does the medal make the murder not happen? Does the public celebration of one act extinguish the legal consequences of the other?
The answer, in any legal system worthy of the name, is no. The principle has a name. It comes from a Buenos Aires suburb.
In 1950, a thin, bespectacled German man boarded a ship to Argentina under the name Ricardo Klement. He settled in a suburb of Buenos Aires, found work, raised a family, and became a respected member of his community. His neighbours found him pleasant. His employer found him competent. His children’s friends found him an attentive father. For a decade, Ricardo Klement was a good citizen of a country that had not fought in the Second World War.
Argentina had declared a formal neutrality for most of the conflict and did not join the Allies until March 1945, weeks before Germany’s surrender. It was an attractive destination for former Nazis for precisely that reason: its large German-speaking immigrant community, its geographic distance from Europe, and its diplomatic ambiguity about the war that had just ended. For men with things to hide, it offered a fresh start.
Ricardo Klement had a great deal to hide. He was, in reality, Adolf Eichmann — SS-Obersturmbannführer, head of the Gestapo’s Section IV B4, the man responsible for the logistics of the Holocaust. He had organised the deportation of millions of Jews to the extermination camps with the methodical precision of a railway timetable. He had not built the camps. He had not operated the gas chambers. But he had ensured the trains ran to them, on schedule, across occupied Europe.
In May 1960, Mossad agents abducted him from a Buenos Aires street, bundled him onto a plane to Israel, and placed him on trial in Jerusalem in 1961. His defence — that he had merely followed orders, that he was a functionary, that he had been a good neighbour and a decent man in the years since the war — was dismissed. He was hanged on 31 May 1962.
The Ricardo Klement Principle is this:
The identity you project does not determine the conduct you are judged for. Good deeds performed after the fact do not cancel crimes committed before. Community standing is not a mitigating circumstance in a court of law. And the passage of time, while it may complicate the gathering of evidence, does not extinguish the obligation to pursue justice.
Klement was a good neighbour. Eichmann was a war criminal. The law was interested only in the second identity. It did not issue Brownie Points for the first.
This principle is the frame through which the case of Benjamin Roberts-Smith VC MG must be understood. Roberts-Smith was a genuinely decorated soldier. The actions for which he was honoured in 2006 and 2011 may well have been exactly as described in his citations. None of that is in dispute here. The question before the criminal courts is whether, in separate operations in separate years, he committed acts that constitute war crimes. The medals speak to the first question. They are irrelevant to the second.
The making of a hero
Roberts-Smith was born in Perth, Western Australia, on 1 November 1978, the son of Len Roberts-Smith, a former justice of the Supreme Court of Western Australia, Army Reserve major general, and Judge Advocate General of the Australian Defence Force. He enlisted in 1996, completed training at Blamey Barracks and the School of Infantry at Singleton, served two peacekeeping deployments to East Timor, and completed the Special Air Service Regiment (SASR) selection course in January 2003. He subsequently served six tours of Afghanistan.
His first decoration came in 2006. During Operation SLIPPER Rotation Three, in the early hours of 2 June, Lance Corporal Roberts-Smith held an exposed sniper position in the mountains near the Chora Pass, maintaining fire against a numerically superior force for more than an hour to protect his patrol. The Medal for Gallantry was awarded for those actions.
Four years later, on 11 June 2010, during his fifth tour, Corporal Roberts-Smith’s troop conducted a helicopter assault into the village of Tizak, Kandahar Province. Under fire from three elevated machine gun positions that had pinned down the troop and wounded two soldiers, he charged the fortifications alone, killing the occupants of two positions and enabling his comrades to neutralise the third. For that he was invested with the Victoria Cross for Australia by Governor-General Quentin Bryce at Campbell Barracks, Perth, on 23 January 2011. He became “Australia’s most highly decorated combat soldier from the conflict.”
Questions under oath: What his peers said
The medals were celebrated without reservation in the years immediately following. But once the defamation trial began in 2021, a different account emerged from inside the regiment.
Multiple members of the SASR, testifying under pseudonyms across 110 days of evidence, stated they had suspected the events at Tizak — the basis of the Victoria Cross — may have been fabricated or substantially embellished. One soldier, codenamed Person 7, said he had been present at the 2010 battle and had declined to charge the machine gun positions because he was, in his own words, “trying to stay alive.” He denied harbouring resentment toward Roberts-Smith and rejected suggestions he had fabricated allegations to settle professional jealousies. He also testified that he had personally witnessed Roberts-Smith assault an unarmed Afghan prisoner, bully a fellow soldier, and threaten to strangle a subordinate.
Person 1, a serving SASR member, told the court that Roberts-Smith had said he would “put a bullet in the back of his head” if his performance did not improve. When Person 1 reported the threat, Roberts-Smith allegedly confronted him: “If you’re going to make accusations, cunt, you better have some fucking proof.”
The Victoria Cross citation describes events at Tizak in the language of unambiguous heroism. A court of law heard evidence from SASR members suggesting the account was contested from within the regiment before the ink on the citation was dry.
The post-VC career: Profile, privilege, and Seven
After the Victoria Cross ceremony, Roberts-Smith was propelled into public life at a velocity experienced by almost no Australian soldier since the Anzac era. He met Queen Elizabeth II at Buckingham Palace in November 2011. His combat uniform was placed on display at the Australian War Memorial. He was named Australian Father of the Year in 2013. He received a scholarship to study business at the University of Queensland. The National Portrait Gallery commissioned a photographic portrait. He served as Chair of the National Australia Day Council from 2014 to 2017. He became Fremantle Football Club’s number-one ticket holder.
This coronation translated into commercial value. He had begun working with the Seven Network in 2012 while still in uniform. After full discharge he took on a corporate role, rising to deputy general manager and then, on the promotion of Tim Worner as CEO of Seven West Media, General Manager of Seven Queensland. He held that role when the allegations began to surface publicly in 2017 and 2018.
The financial scaffolding was formidable. Kerry Stokes — the billionaire chairman of Seven West Media, who also sat on the board of the Australian War Memorial — extended Roberts-Smith a line of credit through his private investment company, Australian Capital Equity (ACE), against which he drew A$1.9 million. The total cost of the resulting defamation litigation to both sides was estimated at more than A$30 million. Roberts-Smith was ordered to pay approximately 95 per cent of Nine Entertainment’s legal costs.
How the stories broke
The first account to reach the public was a book. In October 2017, veteran ABC Four Corners journalist Chris Masters published No Front Line, a study of Australian special forces in Afghanistan. Masters had heard accounts from within the SAS that could not safely be published without further corroboration.
In June 2018, Nick McKenzie of Fairfax Media (by then merging with Nine Entertainment) and ABC journalist Dan Oakes published the first of a series of investigative reports linking Roberts-Smith to the Inspector-General’s inquiry into special forces conduct — an inquiry that would produce the Brereton Report. A joint ABC-Fairfax investigation detailed an assault on the village of Darwan in September 2012 in which a handcuffed Afghan farmer was alleged to have been kicked off a cliff. In August 2018, reports of bullying within the regiment and a domestic violence allegation followed.
The structural dimension of the media landscape mattered enormously. McKenzie and Masters were reporting for Nine Entertainment mastheads — The Age, The Sydney Morning Herald, and The Canberra Times. Roberts-Smith worked for Kerry Stokes’s Seven West Media, Nine’s commercial rival. News Corp and Seven gave Roberts-Smith sympathetic coverage. Masters later documented in Flawed Hero that his former ABC Four Corners colleague Ross Coulthart had been commissioned by Seven to interrogate the journalism, and that after cancelling a meeting with McKenzie, Coulthart texted Nine’s group executive editor and offered to “help fix a looming disaster.” Chessell was not swayed.
The sociologist who had first formally documented SAS misconduct was Samantha Crompvoets, engaged by the Australian Special Operations Command to produce a confidential internal report. Her work was one of the foundations on which the Brereton inquiry was built.
The defamation gambit
In January 2019, Roberts-Smith commenced defamation proceedings in the Federal Court against Fairfax/Nine and journalists Nick McKenzie, Chris Masters, and David Wroe. The defendants mounted a truth defence. The suit was, among other things, an attempt to deploy institutional power — the backing of a billionaire employer, the public profile of a VC winner — to suppress reporting that had uncovered what courts later found to be substantially true.
During the proceedings it emerged that Roberts-Smith had employed a private investigator to pose as a barman at a Seven Queensland work event to gather intelligence on staff opinions of him. His legal team also alleged, as the basis of a late appeal attempt, that his former partner had accessed his email account and passed his legal strategy to McKenzie via a recorded conversation. The Full Court and subsequently the High Court of Australia rejected that attempt, with the High Court refusing leave to appeal in September 2025.
McKenzie and Masters spent years under sustained legal, financial, and reputational attack. Their employer backed them. That editorial backbone is what public interest journalism requires and, increasingly, rarely receives.
The trial of the century: 110 days, 41 witnesses
The defamation trial ran in 2021 and 2022 before Justice Anthony Besanko. It took 110 days of evidence and was labelled the ‘trial of the century’ in Australian legal history. Forty-one witnesses were called: 32 Australian soldiers, many of whom had served alongside Roberts-Smith, plus civilian witnesses from Afghanistan. For national security reasons, military witnesses gave evidence under pseudonyms but in open court, on oath.
The centrepiece allegation concerned Darwan, Uruzgan Province, in September 2012. Nine’s case was that Roberts-Smith had handcuffed a farmer named Ali Jan, led him to a cliff, kicked him over the edge, followed him down with another soldier, and ordered his execution. A radio taken from a separate body was allegedly placed on Ali Jan’s corpse to fabricate evidence of a legitimate engagement, which was then formally recorded and photographed.
Person 4 — a former SAS soldier who had been warned by the ADF in 2020 that disclosing information to any third party could carry criminal consequences (a warning a King’s College London researcher described as a “formal, administrative code of silence”) — told the court he had witnessed Roberts-Smith “catapult” Ali Jan over the slope. He described Ali Jan’s face striking a rock. He heard three shots shortly after Roberts-Smith held a brief conversation with Person 11. He testified that back at base, Roberts-Smith had instructed the patrol: “This is what the story is … the story is we engaged a spotter whilst moving to our HLZ.”
Roberts-Smith denied the account entirely. He said the killing could not have happened as alleged because “there was no cliff … there was no kick” and described the victim as a legitimate armed target. Justice Besanko found Person 4 to be “an honest witness” not motivated by “ill-will or professional jealousy.” His evidence was corroborated by Afghan civilian witnesses including Ali Jan’s brother-in-law and a local farmer who gave evidence by video link.
The court also heard evidence of a 2009 mission at a Taliban compound known as Whiskey 108, where Roberts-Smith was alleged to have directed a junior soldier to execute an unarmed elderly man to “blood the rookie”; of a man with a prosthetic leg who was allegedly carried over Roberts-Smith’s shoulder before being machine-gunned; and of a 2012 Chinartu mission in which he was alleged to have directed Person 12 through an interpreter to shoot a detained Afghan male. A colleague codenamed Person 16 told the court Roberts-Smith shot dead an unarmed Afghan teenage prisoner in 2012 and bragged about it.
Critically, the court heard that ACE — Kerry Stokes’s private company — had been paying the legal fees of Persons 5, 29, and 35, witnesses who gave evidence supporting Roberts-Smith’s version of events. This created a direct financial relationship between Roberts-Smith’s financial backer and key defence witnesses.
What the civil court found
On 1 June 2023, Justice Anthony Besanko delivered a 726-page judgment dismissing Roberts-Smith’s defamation claims. The court found the newspapers had established the substantial truth of the following: that Roberts-Smith had murdered Ali Jan at Darwan in September 2012; that he was complicit in the murder of a detained Afghan at Chinartu in October 2012; and that he had committed murder at Whiskey 108 in April 2009. Justice Besanko found Roberts-Smith had “broken the moral and legal rules of military engagement” and had “Disgraced his country.” He found Roberts-Smith had motives to lie: financial, reputational, and “to resist findings against him which may affect whether further action is taken against him.”
The judgment was upheld by the Full Court of the Federal Court on 16 May 2025 and Roberts-Smith’s subsequent application to the High Court was refused in September 2025. The conclusions of 11 judges across multiple court levels were unanimous.
The civil standard is the balance of probabilities — more likely than not. The criminal charges now before the courts must meet the higher threshold of beyond reasonable doubt. These are distinct proceedings. Roberts-Smith retains the presumption of innocence in the criminal courts.
Were any coalition soldiers charged? The American comparison
Australia sent approximately 40,000 soldiers to Afghanistan as part of the US-led coalition. It was not a war of Australia’s own choosing in the narrow sense — it was a commitment made in the wake of the September 11 attacks under the ANZUS treaty framework, following the United States’ own decision to invade. The coalition was fighting in a country that had not attacked Australia. The Taliban’s association with al-Qaeda was the justification. By any definition, this was a coalition engagement in which Australia was a supporting, rather than a leading, power.
That context makes the question of accountability acute. The United States deployed approximately 832,000 personnel to Afghanistan over two decades. Did American soldiers face prosecution for war crimes?
The short answer is: rarely, selectively, and often symbolically. A review of the record:
In December 2002, two unarmed Afghan prisoners — Habibullah and Dilawar — were chained to the ceiling and beaten to death at the Bagram Theater Internment Facility. Military coroners ruled both deaths homicides. Seven soldiers were eventually charged; six were convicted, mostly on reduced counts with limited sentences.
In 2010, five US Army soldiers known as the “Kill Team” murdered three Afghan civilians in Kandahar Province, collecting body parts as trophies. Eleven of twelve soldiers associated with the group were convicted on various counts.
In March 2012, US Army Staff Sergeant Robert Bales massacred 16 Afghan civilians — nine of them children — in the Panjwayi District. He pleaded guilty to 16 counts of premeditated murder to avoid a death sentence and was sentenced to life without parole.
Photographs and testimony from Abu Ghraib prison in Iraq — adjacent to the Afghan conflict in the same coalition framework — produced convictions of Charles Graner (10 years) and Lynndie England (3 years). Senior officers and policy architects who authorised the practices were not charged.
However, the US record is also marked by impunity at the systemic level. In November 2019, President Trump pardoned two soldiers who had been convicted by US courts of war crimes in Afghanistan — a direct presidential intervention that signalled the limits of institutional accountability. An Amnesty International report found that none of more than 140 civilian deaths it examined had been prosecuted by the US military. The Pulitzer Center’s In the Dark podcast assembled 781 possible war crimes investigated by the US military since 9/11, finding that meaningful accountability was rare.
More fundamentally, the United States is not a party to the Rome Statute that established the International Criminal Court. When the ICC’s then-Prosecutor Fatou Bensouda attempted to authorise an Afghanistan investigation that would have examined US conduct, the Trump administration threatened to arrest and sanction ICC judges. America’s American Service-Members’ Protection Act of 2002 — colloquially known as the “Hague Invasion Act” — authorises the president to use “all means necessary”, including force, to release any American detained by the ICC. The senior policy architects of the invasion, the detention and torture programme, and the rules of engagement that killed over 71,000 Afghan civilians have faced no criminal process whatsoever.
The British record in Afghanistan is, if anything, worse. British SAS units have faced allegations involving the deaths of approximately 50 unarmed civilians in Afghanistan from 2009 to 2011. Investigations into those alleged crimes were shut down by the government in 2017. No charges have been laid.
Australia’s decision to conduct the Brereton inquiry, establish the OSI, and pursue criminal charges against its own soldiers stands in stark contrast to the approach of its two largest coalition partners. Australia is prosecuting itself. That is not nothing.
The Australian record: A history without prosecution
The Roberts-Smith prosecution is, in one important sense, an historical anomaly. Prior to the Afghan investigations, no Australian soldier had ever been convicted by an Australian court of a serious war crime committed by Australian forces.
The Brereton Report itself included a chapter entitled “War Crimes in Australian History” that surveyed six conflicts from the Second Boer War to the First Gulf War. Its conclusion, in the words of the Lowy Institute: “Few if any Australian servicemen have ever been convicted by an Australian court, or military tribunal of any kind, of any offence that could conceivably be characterised as a serious war crime.” The conflicts reviewed, and the pattern of impunity, are as follows:
The Boer War (1899–1902). Australian soldiers Harry ‘Breaker’ Morant and Peter Handcock were court-martialled and executed by the British in 1902 for the murder of Boer prisoners of war. Their case has become embedded in Australian popular mythology as a story of imperial betrayal — men following orders, sacrificed by their British commanders. A local councillor invoked Morant’s name in reaction to the Roberts-Smith arrest. The comparison is instructive in the wrong direction: Morant and Handcock were convicted. The real lesson of their case is that soldiers who kill prisoners can be charged. The mythology, however, has calcified into a cultural instinct that prosecuting your own soldiers is somehow treacherous.
The First World War. The Brereton Report documents numerous allegations of Australian troops killing captured German soldiers along the Western Front, largely unreported. The Surafend Massacre of 1918, in which Australian and New Zealand troops ransacked a Palestinian village and a Bedouin camp after a New Zealand soldier was killed, left between 20 and 137 people dead by various estimates. No prosecutions followed.
The Second World War. Australia conducted nearly 300 war crimes trials of Japanese servicemen, resulting in 644 convictions and 148 death sentences. Australia’s record in prosecuting the enemy was vigorous. Its record in prosecuting its own troops was a different matter. The Brereton Report documents summary executions of Japanese prisoners of war by Australian soldiers. These killings were understood and recognised at higher command levels as war crimes. No prosecutions resulted.
Korea (1950–1953) and the Malayan Emergency (1948–1960). These conflicts were deliberately excluded from the Brereton Report’s detailed review because, the report noted, “the key trend line is sufficiently clear.” There are credible allegations of unlawful killings in both. No prosecutions.
Vietnam (1962–1972). Australia’s longest conflict prior to Afghanistan. The Brereton Report states that allegations of war crimes by Australian troops in Vietnam are widespread and, fifty years on, are unlikely to ever be investigated. Documented accounts include savage beatings, rapes, arbitrary arrests, torture of wounded enemy soldiers, the widespread practice of “throwdowns” — planting weapons on bodies to justify killings, the same practice alleged in Afghanistan decades later — and what one study described as “a massacre” at Binh Ba in June 1969. No prosecutions.
The First Gulf War (1990–1991). The Brereton Report notes no reports or allegations of war crimes perpetrated by Australian soldiers. The report’s coverage concludes here, noting two persistent themes: the “killing of persons under the control of Australian forces” and the use of throwdowns, and “generally being less proactive in dealing with reports or allegations of war crimes by Australian personnel.”
Afghanistan (2001–2021). The Brereton Report found credible evidence of 39 unlawful killings across 23 incidents. The OSI was established. Of 53 investigations undertaken, 39 have been closed without charge, 10 remain ongoing. Oliver Schulz was charged in 2023 (trial set for 2027). Ben Roberts-Smith was charged on 7 April 2026.
The pattern is consistent across more than a century: Australia has prosecuted the enemy’s war crimes with diligence and conviction. It has consistently failed to prosecute its own. Afghanistan is the exception. It is not yet clear whether it will remain one.
Victor’s justice, or universal justice?
Many of the Japanese veterans I have interviewed over the decades spent researching the Sparrow Force story held a firm belief: that the Tokyo war crimes trials, and the Pacific proceedings conducted by Australia and the other Allies, were “Victor’s Justice.” The victors set the rules, chose the defendants, and excluded their own conduct from examination. In the late 1940s, international law did not permit the prosecution of Allied soldiers for acts — such as the killing of surrendered prisoners — for which Japanese and German soldiers were being tried. As the Australian Academy of the Humanities observed: “At the very same time as Japanese military suspects were being tried, Western colonial soldiers were fighting nationalist revolutions in Asia using many of the same techniques — arbitrary killing, torture, detention in appalling conditions — for which Japanese soldiers were being prosecuted. No Western colonial soldiers were held accountable.”
The critique has weight. The Nuremberg and Tokyo proceedings were, in significant part, exercises in establishing a legal framework by the victors that applied exclusively to the defeated. Germany was guilty. Japan was guilty. The Soviet Union’s massacre of Polish officers at Katyń was not on the docket. American firebombing of Tokyo, which killed an estimated 80,000 to 100,000 civilians in a single night, was not prosecuted. The asymmetry was not subtle.
But the Victor’s Justice argument, while historically valid for 1946, cannot be applied to the Roberts-Smith prosecution. The logic of Victor’s Justice depends on a specific asymmetry: the powerful prosecute the powerless; the winner judges the loser; the law is applied to the enemy and not to oneself.
Australia is not prosecuting an enemy soldier. It is prosecuting its own. The victims are not Australian. They are Afghan civilians — citizens of a country that was occupied by the coalition Australia chose to join. If anything, the structural dynamic is inverted from the classic Victor’s Justice model: Australia is, in effect, providing a measure of accountability to victims on the losing side of a conflict it participated in as an aggressor-aligned power.
The Japanese veterans’ critique was fundamentally a demand for universal application of the law — if killing prisoners is a crime, it is a crime whoever commits it. That principle is precisely what Australia’s prosecution of its own soldiers embodies. It is the answer to the Victor’s Justice argument, not an example of it.
The Ricardo Klement Principle and the answer to Victor’s Justice point in the same direction: universal law, universally applied. That is either the foundation of international justice or it is nothing. Australia, in pursuing Roberts-Smith, is choosing the former.
It is also worth noting that the Roberts-Smith criminal charges relate to events during a conflict that the United States and the United Kingdom participated in at a far larger scale, and in which neither country has produced remotely comparable prosecutorial outcomes against its own forces. Australia is, paradoxically, exercising greater accountability in a war it did not start than the nation that started it. That is not comfortable. It is, however, the right thing to do.
How Australia is responding
Australian public reaction to the Roberts-Smith charges has followed predictable fractures. Veterans’ advocacy groups have expressed outrage. The RSL-aligned advocacy voice Jeff Poate complained that the OSI had “spent years and over $300 million, determined to find enough evidence to arrest Ben” while successive governments took no action against Hekmatullah, the Afghan rogue soldier responsible for killing three Australian soldiers in 2012.
The Breaker Morant comparison surfaced within hours of the arrest. A Queensland local councillor who identified himself as a Middle East veteran said Roberts-Smith’s case “brings to mind Breaker Morant … who was executed after following orders not to take prisoners.” The Morant mythology is deeply embedded in Australian military culture. It is also, on any careful reading of the historical record, misleading: Morant was court-martialled and convicted for murder. The lesson is not that prosecuting soldiers is betrayal — it is that the principle of accountability has always existed.
On the other side, Amnesty International Australia called the arrest “a critical step toward global justice.” Human Rights Watch noted that Afghan families were still waiting for justice. International legal scholars cited Australia’s approach as a model for how democracies should handle credible internal evidence of war crimes.
The media landscape remains divided along commercial-tribal lines. Kerry Stokes is a major shareholder in Southern Cross Media, owner of The West Australian and The Nightly, which has continued to provide sympathetic framing. The Australian Financial Review, The Age, and The Sydney Morning Herald have reported the charges with approval. David McBride, the former Army lawyer who revealed information about alleged war crimes in Afghanistan and was subsequently imprisoned, is a pointed reminder that the institutional response to whistleblowing has not been uniformly principled.
There is also a genuine question about whether Australia’s prosecution programme will survive changes of government and of political mood. The war crimes trials are slow, expensive, and politically uncomfortable. The OSI has already closed 39 of its 53 investigations without charge. The commitment to follow through — including against the country’s most decorated living soldier — is meaningful precisely because it is difficult.
The Abbott question
Shortly after the arrest, former Prime Minister Tony Abbott — a conservative politician, not a voice of the left — posted a lengthy public statement of support for Roberts-Smith. “If Ben Roberts-Smith transgressed,” Abbott wrote, “why wasn’t this picked up prior to his gallantry awards and why wasn’t any culture of brutality towards prisoners detected by his more senior officers, and dealt with quickly, rather than being allowed to fester, as has been alleged, for over a decade?”
It is worth pausing on this. Abbott framed his question as a sceptical defence of Roberts-Smith — implying that the absence of contemporaneous action reflects the absence of wrongdoing. But the question contains its own devastating answer, and that answer runs in the opposite direction to the one Abbott intended.
The prosecution’s case is that the first war crime occurred on 12 April 2009 at Kakarak, Uruzgan Province — more than a year before Roberts-Smith stormed the machine gun positions at Tizak on 11 June 2010 for which the Victoria Cross was awarded and formally invested on 23 January 2011. If that 2009 alleged murder had been properly investigated and acted upon at the time — precisely the course Abbott implies should have happened — Roberts-Smith would have been court-martialled or discharged before his fifth tour of Afghanistan. He would not have been at Tizak. The Victoria Cross action, as a matter of simple chronology, would never have involved him.
The medal, the public coronation, the Seven Network career, the Kerry Stokes patronage, the $30 million defamation suit — none of it follows from a world in which accountability existed in 2009. Abbott’s question — why wasn’t the conduct dealt with earlier? — is the right question. Its answer is not a defence of Roberts-Smith. It is an indictment of the institution.
There is a further consequence. If the 2009 conduct went uninvestigated and Roberts-Smith remained in the field, then the three further alleged murders in September and October 2012 may be, on the prosecution’s case, a direct product of that institutional failure. The machinery that should have removed him from service kept him in command of a patrol in Uruzgan Province, where — again on the prosecution’s case — he continued to kill detained, unarmed prisoners. The absence of accountability did not prevent future harm. It enabled it.
Abbott asked why no-one acted earlier. The honest answer is that the institution charged with acting instead awarded the man a Victoria Cross. That is not an argument for acquittal. It is an argument for why the prosecution now matters more, not less.
This is not, and must not be framed as, a left-versus-right political contest. Abbott is a conservative politician. So is the institutional culture of the SASR, and of the Australian military more broadly. The journalists who broke the story work for a commercial media company, not a political party. The judges who heard the defamation case at first instance, on appeal, and at the High Court were not appointed by any single political faction, and their rulings spanned governments of both persuasions. The OSI was established in 2021 by the Morrison Liberal-National government — not by Labor. The AFP Commissioner who announced the April 2026 arrest, Krissy Barrett, holds a statutory appointment independent of the government of the day.
Those who attempt to frame this prosecution as politically motivated — as a culture-war attack on the military, as institutional virtue-signalling, or as the persecution of a conservative hero by progressive institutions — are not making a legal argument. They are making a noise designed to drown out the evidence. The charges are specific, dated, located, and supported by the sworn testimony of Roberts-Smith’s own SASR colleagues. They were brought by a coalition of legal bodies operating across multiple governments and multiple political cycles.
As for the claim — made by Roberts-Smith himself in 2017 when the first stories appeared — that the scrutiny was “un-Australian”: the opposite is true. Investigating the conduct of those who exercise lethal force on behalf of the state, and subjecting that conduct to the rule of law, is among the most Australian things an institution can do. What would be genuinely un-Australian is to decide that a man’s medals place him beyond examination. That is the logic of impunity. It has, as the historical record above demonstrates, been the dominant logic in Australia for more than a century. The present prosecution is an attempt to change that. Critics who invoke the word “un-Australian” have the argument precisely backwards.
From civil to criminal: The Brereton report and Operation Emerald-Argon
The pathway from the defamation judgment to criminal charges is not a straight line. The Independent Afghanistan Inquiry led by Major General Paul Brereton, published in 2020, found credible evidence of 39 unlawful killings across 23 incidents from 2005 to 2016. It described the conduct as “possibly the most disgraceful episode in Australia’s military history.”
A complication arose immediately. The Brereton inquiry had used special coercive powers to compel testimony from serving ADF members. The Commonwealth Director of Public Prosecutions concluded that evidence gathered under those powers was likely inadmissible in criminal proceedings. The original AFP investigation was abandoned. In 2021 the Australian Government created the Office of the Special Investigator (OSI), which together with a new AFP team formed Operation Emerald-Argon: a fresh investigation uncontaminated by the Brereton coercive powers.
The specific charges filed on 7 April 2026 are instructive. The OSI’s own public statement lists the five counts: a murder at Kakarak on 12 April 2009; two murders (as aider/abettor) at Darwan on 11 September 2012; a joint commission murder at Syahchow on 20 October 2012; and a further aided/abetted murder at another location. These are specific, dated, located. The criminal case was built on independent evidence gathered over five years, not on the defamation trial record.
Conclusion: Justice seen and justice done
Ricardo Klement was a good neighbour. Adolf Eichmann was a war criminal. The Argentine community that respected Klement was not wrong to find him agreeable. They simply did not know who he was. When they found out, their regard for Klement offered Eichmann no protection.
Ben Roberts-Smith’s decorations reflect actions in 2006 and 2010. The charges against him relate to different events, in different years, in different villages, against different victims. What he may have done at Tizak does not speak to what he may have done at Darwan or Kakarak. The law does not permit a man to carry credit from one column against debits in another. There are no offset arrangements in a homicide charge.
The effort to use a defamation suit — funded by billionaire backers with their own commercial interests, in a media landscape divided along tribal lines — to silence journalism and intimidate witnesses failed at every level. It failed legally. It failed reputationally. And it subjected the soldiers who found the courage to speak to years of institutional threat and personal pressure. Those men broke down in the witness box. They did so because they had to relive what they had seen in the name of truth. That should not be forgotten.
Politicians who rush to express support for Roberts-Smith, veterans’ advocates who invoke Breaker Morant, and media commentators who reduce this to a culture-war skirmish are all doing the same thing: injecting noise into a process that requires only evidence. Their conduct is irrelevant to the outcome and corrosive to the process. They should desist.
These allegations have been in the public domain for nearly a decade. The corrosion of that ambiguity — for Roberts-Smith, for his family, for the soldiers who served with him, for the Afghan families waiting for something resembling justice — is real. The only remedy is a fair criminal trial conducted according to law. Australian authorities are providing exactly that.
The Brereton Report was an act of national honesty almost without parallel among coalition nations in the Afghan war. The OSI is a serious institutional commitment. The willingness to prosecute Australia’s most decorated living soldier is a statement about the kind of country Australia chooses to be: one that applies the rule of law universally, or one that applies it selectively to the already-defeated. Australia has chosen the former.
To those Japanese veterans who told me, across interviews spanning decades and twelve countries, that the Pacific trials were Victor’s Justice: this is Australia attempting something different. It is justice applied to the victor’s own. I cannot speak to whether the outcome will be conviction, acquittal, or something in between. But the attempt itself is the answer to the critique. Universal law, universally applied, is the only foundation on which the post-1945 international legal order was built. It has never been fully realised. Australia is trying.
New Zealand — with its own institutional accountability deficits and its well-documented reluctance to pursue those in power with the same rigour it applies to those without — has something to learn here. A country that cannot investigate the conduct of its most honoured figures has decided, in effect, that some people are above the law. Australia has decided otherwise. The process is not comfortable. It is not cheap. It is not popular in all quarters. It is, however, right.
Grant McLachlan is the author of Sparrow: A Chronicle of Defiance, a decade-long research project based on interviews with over 100 war veterans across twelve countries, including surviving members of the original Australian Sparrow Force commandoes who fought in Timor in 1942.
