War Crimes and Witness Testimonies
Ben Roberts-Smith Loses His Defamation Case
P. P. Zhang
THEY SAY THE BIGGER THEY ARE, THE HARDER THEY FALL. Ben Roberts-Smith’s fall has been like no other, and the full repercussions are yet to come. Previously, he was held in high regard, being celebrated as Australia’s most decorated living war hero, having received the Medal for Gallantry (MG) in 2006, the Victoria Cross (VC) in 2011 and a Commendation for Distinguished Service in 2012 for his service in Afghanistan and the general Australian Defence Force for 21 years. Former Prime Minister Malcolm Turnbull called Roberts-Smith a “great Australian hero” and “someone that all Australians look up to”. But as of last Thursday, the ex-patrol officer lost his public defamation case against three newspapers – the Sydney Morning Herald, the Age and the Canberra Times. From 2018, the said newspapers published stories claiming that he had committed war crimes while serving in Afghanistan, as well as allegations of bullying within the Special Air Service Regiment (SAS) and domestic violence. The civil trial heard more than 100 days of evidence over the span of a year, including from 41 witnesses. Ultimately, Roberts-Smith has been named a murderer and war criminal who was responsible for the killing of four unarmed civilians in Afghanistan.
The allegations date back to 2009, when Roberts-Smith led a raid on compound Whiskey 108, a secret tunnel where he was responsible for the killing of an elderly man and another with a prosthetic leg, both of whom were hiding in the tunnel. However, the most infamous of the extensive allegations against the ex-soldier is the murder of a handcuffed man, Ali Jan, in the southern Afghani village of Darwan in 2012. Sources state that Roberts-Smith “walked forward and kicked the individual in the chest”, causing him to fall off a ten-meter-high cliff. Justice Anthony Besanko, the judge of the Supreme Court who dismissed the defamation claims, found on the balance of probabilities that the imputations established by the newspapers were true. Additionally, Roberts-Smith was also alleged to have punched a woman who he was having an affair with in Parliament House following an argument in 2018. As well as bullying and threatening of fellow soldiers, including coercing them into the ‘appropriate’ way to execute detainees.
After retiring from the full-time Army in 2013, Roberts-Smith became the General Manager of the Seven Network in Queensland in 2015, as well as holding the position of Chair of the National Australia Day Council between 2014 and 2017. In 2018, the three aforementioned newspapers launched a series of articles. The stories, rolled out from June 8, 2018, detailed the war crimes committed by an initially unnamed soldier in Afghanistan, before Ben Roberts-Smith’s name was revealed in August of the same year. And so Ben Roberts-Smith launched two defamation proceedings on August 17, 2018, claiming that the allegations had resulted in damages worth hundreds of thousands of dollars, in the form of lost speaking roles as a guest speaker, as well as stepping down as the General Manager of Seven Queensland. It will likely be his employer, billionaire Kerry Stokes who had been bankrolling Roberts-Smith, who will also fund the estimated $25 million legal costs for both parties in the trial. At the time of Roberts-Smith suing the news corporations, Stokes was also the chair of the Australian War Memorial.
This raises another question: whether the War Memorial should continue to display his character, including his medals and uniform. The answer to this may seem obvious, but the displays are still a vital part of our war history, as well as providing a way to educate Australians about the understated codes of armed conflict, ultimately creating a paradox: the exhibition displays one of our greatest heroes who is simultaneously one of our greatest war criminals. Despite the findings of the court, Roberts-Smith still retains his Victoria Cross, the highest military honour awarded to an Australian soldier. Many are calling for this honour to be cancelled, which would be a first for an Australian VC recipient. In the entire British honours system, only eight of the 1,358 awarded since 1856 have been cancelled, however, often for lesser crimes such as stealing a cow. There is an argument to be made that Roberts-Smith received his VC for the notable Battle of Tizak in 2010, which was completely unrelated to the defamation trial, and therefore his war heroics still stand despite ‘disgracing’ his country.
Amidst all the clamour, Ben Roberts-Smith has not actually been criminally charged, with the defamation trial being a purely civil case. The reason for this? There are a couple of factors, including the fact that war crimes trials are costly and extensive, and although there was “substantial truth” established in many of the imputations, unlike civil trials, criminal trials require proof beyond reasonable doubt. This essentially means it would be significantly harder to find the the ex- Special Air Service soldier guilty. Oliver Schulz is the only former SAS soldier in history to be charged with the war crime of murder. Despite all this, the Australian Defence Force must continue to support the push for a criminal trial, to maintain Australia’s position as a champion of justice and proper conduct in war. This, too, will no doubt be a difficult decision for our nation, which prides itself in our nationalistic courage, with much of this reflected through military service overseas. Compensation is also needed for the Afghani families affected, compensation that should have been paid two and a half years ago, following the findings of the Brereton Report, which raised the issue of Australian soldiers committing war crimes.
Roberts-Smith and his lawyers have 42 days to consider their options, including a possible appeal, however, this would require finding a significant error of law in the trial, not to mention the extensive further legal funding. All in all, even if Roberts-Smith does choose to appeal, the damage to his reputation, the Defence Force, and the nation as a whole, has already been done.