Decorated Australian Veteran Ben Roberts-Smith Arrested, Charged, and Released on Bail for Alleged War Crimes in Afghanistan

Former Australian SAS corporal Ben Roberts-Smith, a Victoria Cross recipient, has been charged with five counts of war crime murder, marking a historic and divisive moment in Australian legal history.

Arrest and Charges

Ben Roberts-Smith, a 47-year-old former corporal in the Australian Special Air Service (SAS) Regiment and recipient of the Victoria Cross, was arrested by the Australian Federal Police (AFP) at Sydney Domestic Airport on April 7, 2024. He faces five counts of the war crime of murder under the Commonwealth Criminal Code, relating to alleged incidents during his deployment in Afghanistan between 2009 and 2012.

The arrest followed a five-year joint investigation by the AFP and the Office of the Special Investigator (OSI), which was established in 2021 to probe allegations of criminal offenses by Australian Defence Force (ADF) personnel in Afghanistan between 2005 and 2016.

The charges involve five specific incidents in Uruzgan Province, Afghanistan:

AFP Commissioner Krissy Barrett stated that the victims were allegedly not participating in hostilities – they were detained, unarmed, and under the control of ADF members at the time of their deaths. It is alleged they were shot by Roberts-Smith or by subordinate ADF members acting on his orders.

OSI director of investigations Ross Barnett described the prosecution as "incredibly complex," citing challenges such as the inability to access Afghanistan, the crime scenes, or conduct post-mortem examinations.

Roberts-Smith is the second Australian veteran of the Afghanistan campaign to be charged with a war crime. Former SAS soldier Oliver Schulz has pleaded not guilty to a separate charge.

Legal Proceedings and Bail

Roberts-Smith was arrested at Sydney Airport after arriving from Brisbane and was initially held at the Metropolitan Remand and Reception Centre at Silverwater Correctional Complex. In his first court appearance, his legal team did not apply for bail.

On April 19, 2024, Roberts-Smith appeared via video link before Judge Greg Grogin at Sydney's Downing Centre Local Court for a bail hearing.

• Flight Risk: Prosecutor Buchen stated Roberts-Smith was "on the cusp of attempting to relocate overseas" when arrested, having made advanced plans to move abroad, including booking a flight.
• Interference Risk: The prosecution argued Roberts-Smith had demonstrated "a willingness and a capacity to subvert court processes" through alleged use of burner phones, witness intimidation, and collusion.

• Case Complexity: Defense lawyer Slade Howell argued the case was "exceptional" and "unprecedented," involving "uncharted legal territory." He stated the case would face significant delays, potentially taking "many years" due to material complexity and national security concerns.
• Right to Prepare a Defense: Howell argued Roberts-Smith's ability to prepare his defense would be compromised if he were held in custody, as he would be unable to access national security information.
• Fair Trial Concerns: Howell noted the potential for "extraordinary pre-trial publicity" to prejudice a fair trial.
• Compliance History: Roberts-Smith's father, a former judge, offered a "substantial surety".

Judge Grogin granted bail, finding that the case would take years to resolve and that the prosecution's concerns about witness interference or flight could be mitigated through strict conditions. He stated the fairness of proceedings would be compromised if Roberts-Smith was forced to prepare a defense from custody.

Bail conditions include reporting to police three times a week, surrendering his passport, and a $250,000 security deposit. He was released from Silverwater Correctional Complex on April 19.

Previous Civil Defamation Case

These criminal charges follow a 2023 civil defamation case brought by Roberts-Smith against Nine newspapers. In that case, a Federal Court judge found that, on the "balance of probabilities," published allegations that Roberts-Smith committed four murders in Afghanistan were "substantially true."

This civil ruling differs from the current criminal case, which requires proof "beyond a reasonable doubt." Roberts-Smith's appeals against the civil ruling were unsuccessful.

Political and Public Reactions

Public reactions to the arrest and charges have been divided.

"My instinctive sympathy remains with all of our special forces soldiers from the Afghanistan campaign... it is wrong to judge soldiers by the standards of civilian life." — Former Prime Minister Tony Abbott

• Prime Minister Anthony Albanese declined to comment on the specifics of the case, stating it is before the courts.
• Opposition Leader Angus Taylor stated the legal process must run its course and emphasized it should not detract from respect for special forces service members.
• Former Prime Ministers Tony Abbott and John Howard have commented on the case. Abbott stated his "instinctive sympathy" remains with the soldiers, while Howard noted the arrest would emotionally affect many Australians but affirmed the rule of law.
• Liberal MP Andrew Hastie, a former SAS soldier who served alongside Roberts-Smith, stated Roberts-Smith is entitled to the presumption of innocence but that "none of us are above the law." Hastie testified in the previous defamation trial.
• Labor MP and former soldier Luke Gosling sent an email to all federal MPs, advising them against making public comments that could jeopardize a fair trial.
• Greens Senator David Shoebridge described the arrest as a "moment of accountability" and no one should be "above the law."
• One Nation leader Pauline Hanson voiced steadfast support for Roberts-Smith. Her party also used his image in an election campaign sign and hosted a community barbecue to rally support.
• The Australian War Memorial (AWM) updated its display in the Hall of Valour to state that Roberts-Smith has been charged and the legal process is ongoing. Director Matt Anderson confirmed the memorial's commitment to keeping the public informed while upholding the presumption of innocence.