Ben Roberts-Smith Arrested in Sydney on War Crimes Charges

Australia’s most decorated living soldier, Ben Roberts-Smith, has been arrested at Sydney Airport and formally charged with five counts of war crimes, including murder, related to his service in Afghanistan.

The 47-year-old former SAS corporal was taken into custody on Tuesday morning after arriving on a domestic flight from Brisbane. The Australian Federal Police (AFP) and the Office of the Special Investigator (OSI) announced the details of the case at a press conference in Sydney shortly after midday.

Roberts-Smith is expected to face court on Wednesday, charged with “five counts of war crime – murder” linked to three separate incidents between 2009 and 2012. The maximum penalty for each offence is life imprisonment.

The Allegations

AFP Commissioner Krissy Barrett detailed the gravity of the accusations, though she did not name Roberts-Smith directly due to legal protocols. She stated that the incidents allegedly involved Afghan nationals who were shot dead either by the accused or by a subordinate under his command while he was present.

“It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan,” Commissioner Barrett said. “It will be alleged the victims were detained, unarmed, and under the control of Australian Defence Force members when they were killed.”

Guardian Australia understands the charges relate to:

• Whiskey 108 (2009): The deaths of two Afghan males, including an elderly man and a younger man with a prosthetic leg.

• Ali Jan (2012): The death of a handcuffed Afghan man near the village of Darwan.

• Syahchow (2012): The deaths of two civilians.

The Defamation Case and Civil Findings

The criminal charges follow a landmark, years-long defamation battle. Roberts-Smith had sued three newspapers – The Age, The Sydney Morning Herald, and The Canberra Times  over 2017-2018 articles alleging he committed war crimes, murdered unarmed civilians, and bullied comrades.

In a devastating judgment, Federal Court Justice Anthony Besanko found, to the civil standard of the “balance of probabilities,” that Roberts-Smith had committed four murders. The judge specifically found that:

• In 2012, Roberts-Smith kicked a handcuffed prisoner, Ali Jan, in the chest, sending him falling backwards over a 10-metre cliff into a dry riverbed. After Ali Jan survived the fall and attempted to rise, Roberts-Smith ordered a subordinate (known as “Person 11”) to shoot him dead. The order was followed.

• In 2009, at a compound codenamed Whiskey 108, Roberts-Smith ordered a junior soldier to execute an elderly unarmed man who had surrendered. He then forcibly dragged a second unarmed man with a prosthetic leg outside the compound walls, threw him to the ground, and shot him dead with his machine gun. (The prosthetic leg was later souvenired by another soldier and reportedly used as a macabre drinking vessel at a SAS bar called the Fat Ladies’ Arms).

Roberts-Smith lost his defamation case, lost an appeal to the full bench of the Federal Court, and was refused a final appeal by the High Court of Australia. He has consistently and vehemently denied all wrongdoing.

Investigation Challenges

Ross Barnett, Director of Investigations at the OSI, noted that the probe, which began in 2021, faced extraordinary difficulties. “The challenge for investigators is that we are 9,000km away,” he said. “Because we can’t go to the country, we don’t have access to the crime scene. So we don’t have photographs, site plans, measurements, the recovery of projectiles, or blood spatter analysis. There’s no postmortem. Therefore, there’s no official cause of death.”

He added that, due to these challenges and the inability to communicate directly with people in Afghanistan, many of those impacted by the alleged murders may not yet be aware that an arrest has been made.

Political Reaction

Prime Minister Anthony Albanese refused to comment on the arrest, stating, “I have no intention of prejudicing a matter that clearly is a legal matter, and that’s before the courts, and any comment would do so.”

A Fall from Grace

Roberts-Smith was once lionised as a national hero. He was awarded the Victoria Cross for “most conspicuous gallantry” during the battle of Tizak in 2010. He was named Father of the Year and served as chair of the government’s Australia Day Council.

Following his arrest, he was held in custody and is scheduled to appear in a bail court on Wednesday. The AFP would not comment on whether they suspected he was attempting to board an international flight when he was apprehended at the domestic terminal.

This arrest marks the second high-profile war crimes prosecution of an Australian special forces soldier. In early 2023, former SAS soldier Oliver Schulz was charged with the murder of an Afghan man.

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