Numerous witnesses accused Australia’s most decorated surviving soldier of war crimes, bullying peers, and mistreatment of his mistress as he endured months of testimony in a Sydney tribunal.
Ben Roberts-Smith wasn’t the one being tried, though.
The 44-year-old filed the lawsuit against three Australian publications after a series of articles he claims defamed him in 2018 were published. He claims that they destroyed his life by portraying him as a ruthless individual who disregarded the moral and legal laws of war and dishonoured his nation in the process.
However, the media claims to have published the facts and has made an effort to back up this claim.
For the first time, a court has examined claims that the Australian military committed war crimes.
The trial lasted 110 days and might have cost up to A$25 million ($16.3 million, £13.2 million), has heard striking and occasionally odd testimony about every aspect of Mr Roberts-Smith’s life.
The allegations of Australian war crimes in Afghanistan caused a media frenzy, garnered widespread attention, and made Mr Roberts-Smith the public face of those claims.
After combing through voluminous evidence, a judge is expected to issue a ruling in the illustrious case this week.
Mr Roberts-Smith completed his last tour of duty in Afghanistan in 2012, and he came home a hero.
He was awarded the Victoria Cross, Australia’s highest military honour, after defeating Taliban machine-gunners who were attacking his Special Air Service (SAS) platoon by himself.
Then came more acclaim and praise. He received prominent speaking engagements, high-profile corporate appointments, and large-scale pictures in the Australian War Memorial before being named Father of the Year in 2013.
But in 2018, journalists Nick McKenzie, Chris Masters, and David Wroe began releasing newspaper articles regarding Mr Roberts-Smith’s alleged misbehaviour, shattering his gleaming public image.
While serving in Afghanistan between 2009 and 2012, the press reported that Mr Roberts-Smith was engaged in six murders of unarmed captives or civilians, which he vehemently rejects.
These included a handcuffed farmer who was shot dead by the army after being kicked over a 10-meter cliff by a soldier. The farmer’s teeth were knocked out in the fall.
A witness described another as “shaking like a leaf” because the captured Afghan teenager was so afraid. In court, he testified that Mr. Roberts-Smith afterwards asserted that he had shot him in the head and boasted that it was “the most beautiful thing I’ve ever seen.”
The Federal Court was also told that Mr Roberts-Smith had killed a captive fighter with a machine gun, taking his prosthetic limb as a trophy and using it as a drinking vessel for the troops. The papers state that he ordered other murderers to “blood” or initiate novices.
The Geneva Convention, a set of international laws designed to reduce the barbarism of war, forbids the torture, murdering, or brutal treatment of detainees and provides protection for soldiers who are injured or ill.
According to Nicholas Owens, a lawyer for the newspapers, “not a single one of the murders we allege… involved decisions that were made in heat of battle… ‘fog of war’.”
However, Mr Roberts-Smith asserts that he has consistently adhered to the ground rules.
He contends that five of the murders took place legitimately in the course of battle, and a sixth never took place.
The defence team for the former SAS corporal contends that the most severe accusations against Mr Roberts-Smith were made up by jealous coworkers who were “liars” and “gossips” in order to discredit him.
What he did not anticipate, according to his lawyer Arthur Moses, was that after receiving the Victoria Cross, he would become a target.
His defence team said that the journalists had “jumped on the rumours like salmon jumping on a hook,” reporting them as fact. They claimed that once the trial evidence was considered, it would reveal them to be contradictory, “fanciful,” and “salacious.”
The publications consulted a number of former or current elite soldiers as well as Afghan locals, a federal minister, and others to back up their assertions.
They ultimately discovered even more false accusations. In addition to the deaths mentioned in the newspaper case, one of Mr Roberts-Smith’s close associates said that he was also charged with involvement in three further alleged murders in Afghanistan.
Claims that Mr Roberts-Smith intimidated peers also received a lot of support from the evidence. In front of his entire patrol, the war hero admitted to punching one of his comrades in the face, but he insisted he never threatened another with “a bullet in the back of the head” if his performance didn’t improve.
Amazing evidence on other matters also came to light during the defamation case, including: • Mr Roberts-Smith’s admissions that he had burned several laptops to wipe his data, • Claims that he had buried classified information in a child’s lunchbox in his backyard; • A private investigator’s testimony that Mr Roberts-Smith had asked him to take responsibility for anonymous, threatening letters to soldiers who were cooperating with war crimes investigations.
Mr Roberts-Smith observed as his ex-wife Emma related how a lady he had an extramarital affair with showed up at the family home uninvited, sporting a black eye and announcing that she was pregnant with his child.
The woman, whose identity has been shielded, sobbed as she described the alleged incident of Mr Roberts-Smith punching her in a hotel room after she humiliated him at a gathering. He disputes this, saying that she fell at the event and hurt herself.
No charges have been brought against Mr Roberts-Smith for any of the allegations, and no criminal court has found anything against him.
But the findings also shed illumination on the SAS’s typically shrouded world.
A historic assessment released in November 2020 discovered solid proof that, between 2007 and 2013, Australian personnel in Afghanistan killed 39 civilians and inmates without authorization.
It exposed an unregulated “warrior culture” among some soldiers, especially those in the SAS, who had reportedly “taken he law into their own hands,” according to the head of the Australian Defense Force.
A “code of silence” inside the regiment prevented any potential misconduct from being disclosed, according to former and active SAS members testifying at the trial, while others defended their acts as necessary.
Many witnesses who testified did so voluntarily after receiving subpoenas, and three others declined to discuss some claims out of concern for self-incrimination.
One of the soldiers who claimed that he saw Mr Roberts-Smith carry out an execution expressed his resentment at being forced to testify against him.
He continued, “I still disagree with the idea that [Mr. Roberts-Smith] is here, under great hardship, for killing bad guys we went over there to kill.
Nearly three years after the historic Brereton Report, local media stated that more than 40 troops are being looked for their involvement in war crimes, but just one has faced charges.
As a result, according to Peter Stanley, a former principal historian at Australian War Memorial, the verdict in Mr Roberts-Smith’s defamation case is a significant one for Australia, both legally and culturally.
He asserts that Australian soldiers have probably certainly committed war crimes in the past, but none have ever faced charges.
Although the general public may not always support Australia’s involvement in certain conflicts, there has historically been “great pride in the way [it] has fought – this is what’s known as the Anzac legend.”
“The Ben Roberts-Smith episode is just a precursor to the major series of war crimes investigations, allegations, prosecutions, and possibly convictions that we’ll see over next few years,” he said.
It undoubtedly turned [him] into a litmus test.
Anthony Besanko, the judge, will first determine if the articles are defamatory, and if they are, he will next take into account any defences.
Since defamation is a civil matter in Australia, the burden of proof is even lower than it is in criminal trials, where the “beyond a reasonable doubt” level is demanded. The publications merely need to demonstrate that the claims have a greater chance of being true than not.
According to them, proving just one of the six killings claimed could be sufficient to win the case.
However, the legislation states that if there are serious repercussions for those implicated, Judge Besanko must exercise extra caution when considering the strengths and weaknesses of the evidence.
