Ben Roberts-Smith reminds us he is a war criminal
For the second time, in spite of notoriously censorious defamation laws, Australia’s most decorated living soldier, Ben Roberts-Smith, has been confirmed to be a war criminal. After spectacularly losing a defamation case against Fairfax Media’s Nick McKenzie, Chris Masters and David Wroe in 2023, Roberts-Smith’s appeal, heard by a full bench of the Federal Court, went down in flames on 19 May.
Central to the case was claims, now upheld twice to be substantially true, that Roberts-Smith committed war crimes during Australia’s occupation of Afghanistan. These crimes included kicking a man off a cliff and directing soldiers under his command to shoot him; murdering another man and encouraging other soldiers to drink alcohol from his prosthetic leg; and multiple instances of directing other soldiers to kill unarmed people.
In his repeated attempts to clear his name and punish his accusers for telling the truth, Roberts-Smith has succeeded only in proving more convincingly that he is, indeed, a war criminal. His arrogance is almost comical. He presents as a man who believes that he is untouchable.
In 2021, Roberts-Smith fronted a court to explain why he had petrol-bombed hard drives in his backyard in 2018. This was after McKenzie broke the story that he was being investigated by the Australian Federal Police for war crimes. Roberts-Smith explained: “If you don’t get rid of a hard drive, all of the data on the hard drive ... can typically be pulled off it”. Indeed. These were the actions he was trying to paint as those of an innocent man.
At the time of the original defamation case, barrister Bruce McClintock deployed a foolproof defence in the mould of another war criminal, Bill Clinton: “My client did not drink from the leg”. Unfortunately for Ben Roberts-Smith, video footage has recently emerged which shows that he did, in fact, drink from the leg.
It doesn’t take a lot of digging to work out where Roberts-Smith’s self-righteous arrogance comes from. He likely believed he could get out of trouble, like so many private school boys before him, simply by asking the question “Do you know who my father is!?” His own dear papa being, of course, a former Supreme Court justice in Western Australia.
He is also backed by a who’s who of Australia’s rich scumbags, from Seven Media’s Kerry Stokes—who funded Roberts-Smith’s original defamation case to the tune of $30 million and gave him an upper management job—through to MAGA mining magnate Gina Rinehart, who has sprung to his defence in recent weeks.
He expected the establishment to defend him. He assumed, not without reason, that anything goes in the pursuit of Western interests in the Middle East—that a culture of impunity is an important part of hyping up soldiers to commit the sort of atrocities that are part and parcel of carrying out military campaigns. Australia’s most decorated soldier has become a symbol of the hubris of an empire which gave itself the right to kill not just four innocent Afghans, but thousands upon thousands in the course of a nihilistic 20-year slaughter and occupation.
If that wasn’t enough, Roberts-Smith is ostentatiously remorseless. In 2023, he posed for a photo at a beach club in Bali alongside Zachary Rolfe, the still-serving Queensland police officer who shot dead Aboriginal man Kumanjayi Walker in the remote Northern Territory town of Yuendumu in 2019. In the comments, Rolfe mockingly wrote “Just a couple of cops/murderers and war criminals Havin a lovely afternoon in the sun”.
Satisfying as it is to see Roberts-Smith lose again, the reality is that he is walking away with a slap on the wrist. Despite twice being found, on the balance of probabilities, to have committed war crimes, he is not rotting in a cell, nor lying dead at the bottom of a cliff like one of his victims. Instead, he continues to wear his Victoria Cross—Australia’s highest military decoration—proudly on his chest. He was spotted doing so only a month ago, at Perth’s ANZAC Day dawn service.
His uniform continues to be displayed in Canberra’s War Memorial, alongside a story of his award-winning “gallantry” in Afghanistan. Only now, it has a mealy-mouthed disclaimer: “In June 2023 a Federal Court judge determined that there was ‘substantial truth’ to the allegations that Roberts-Smith had been involved and complicit in unlawful killings in Afghanistan”. It goes on to remind us, “Roberts-Smith has appealed this decision. Roberts-Smith has not been charged with any offence under criminal law”.
The Brereton report, which was commissioned in response to news of Australian war crimes in Afghanistan surfacing, has been similarly toothless. Despite finding evidence of 39 “unlawful killings” perpetrated or participated in by 25 special forces soldiers, not one has been convicted of a crime. Only one, former SAS soldier Oliver Schulz, has faced charges. Naturally, the report stopped short entirely of laying any blame at the feet of the generals and ministers who were ultimately responsible for the war.
By contrast, former army lawyer David McBride, who leaked documents about the conduct of Australian troops in Afghanistan to the ABC in 2016, languishes in prison, serving a five-year sentence. Like Julian Assange and Chelsea Manning before him, for the simple crime of telling the truth, McBride has faced far harsher consequences than any of the murderers in the ranks of the Australian army.
Astoundingly, Roberts-Smith has indicated he will be launching a second appeal, this time to the High Court, presumably bankrolled by Gina Rinehart. Despite all the legal professionals who have so far deemed him a war criminal, he obviously thinks there is a chance of winning and getting revenge on those who dared bring his crimes to light.
Real justice won’t be served until Roberts-Smith, and every murderous general, politician and media baron who enabled and decorated him, is locked up.
