Inside Story

Heart of darkness

The judgement against Ben Roberts-Smith throws the spotlight onto the special war crimes investigator

Hamish McDonald 2 June 2023 1682 words

Next move? Arthur Moses, Ben Roberts-Smith’s barrister, arrives at the Federal Court for yesterday’s judgement. Dan Himbrechts/AAP Image

What to make of the conduct of Ben Roberts-Smith, this country’s most highly decorated living soldier, as the Federal Court was convening to hear a ruling on his own legal action claiming gross defamation? Not getting ready for court, to brave whatever legal fire might come: photographed, instead, poolside in Bali. A sense of invincibility? That come what may, the firepower of his backers will have won out?

That firepower wasn’t enough. In a succinct summary of his judgement yesterday, Justice Anthony Besanko found that three newspapers — all of them part of the Fairfax group at the time — and their journalists had established the “substantial truth” of their reports that Roberts-Smith had murdered and assaulted unarmed Afghan prisoners. A Victoria Cross–winning war hero was instantly labelled a war criminal.

Notably, Justice Besanko accepted as true the report that Roberts-Smith had kicked an unarmed and handcuffed captive, Ali Jan, backwards off a cliff and then ordered a subordinate soldier to shoot him dead. Further details will emerge when the full 1000-page judgement is published on 5 June. A further fifty pages containing sensitive national security details goes to a more select readership.

What next? Roberts-Smith remains a free man. The defamation case was not a criminal trial. A judge finding substantial truth on the balance of evidence in a civil trial is not the same as a judge or jury finding guilt beyond reasonable doubt in a criminal case, as some of Roberts-Smith’s former colleagues in the Special Air Service Regiment were quick to point out.

The Seven Network — whose owner Kerry Stokes paid for Roberts-Smith’s legal expenses over 110 days of hearings as well as those of some supporting witnesses — has said Roberts-Smith continues in his job of managing the network in Queensland, though on leave, pending review.

Lead counsel Arthur Moses SC asked for and received stay of judgement to consider an appeal. An estimated $25 million has already been spent by the two sides; whether Stokes wants to put up more of his money remains to be seen. The defence side will seek to claim its share of this from Roberts-Smith and “third parties” (entities controlled by Stokes). So the Perth-based magnate could be up for most of the legal bill.

Will he quit or double down? If an appeal does proceed, it could delay a final resolution of the civil action for another year or more.

Watching it all closely will be the Office of the Special Investigator, or OSI, the war crimes unit that was revealed during the trial to be examining Roberts-Smith’s actions in Afghanistan. Will an appeal be an obstacle for the OSI if it is thinking of a move against the former soldier?

The OSI was set up after the defence force inspector-general, Justice Paul Brereton, found “credible” evidence that twenty-five current or former special forces personnel participated in the unlawful killing of thirty-nine individuals and the cruel treatment of two others during the Australian army’s deployment in Afghanistan between 2005 and 2016. Where the evidence justified it, the OSI was charged with launching prosecutions.

Under a former secretary of the federal attorney-general’s department, Chris Moraitis, and with former Victorian Supreme Court justice Mark Weinberg as special investigator, the office has a powerful array of federal police and legal investigators hard at work. Its first fusillade came in March, when a former SAS soldier, Oliver Schulz, became the first Australian serviceman or veteran to be charged with the war crime of murder, in his case for the alleged killing of an Afghan man in Uruzgan province in 2012. Schulz, who was given bail, is expected to be tried next year or in 2025.

Some other governments that fought in Afghanistan, including Britain and Belgium, are believed to be closely studying the Australian model. The OSI has also opened a close liaison with the International Criminal Court in The Hague, an important move because Australia, as a signatory to the Rome Statute setting up that tribunal, must show it is vigorously investigating and prosecuting any war crimes or crimes against humanity committed by its own armed personnel or citizens. Otherwise, the ICC is entitled to launch cases itself, with Australia having to hand over the suspects.

We also now know that the United States warned Canberra in early 2021 — via a US embassy defence attaché to Australian defence force chief General Angus Campbell — that the human rights violations detailed in the Brereton report might oblige the US military to suspend cooperation with Australian special forces under US legislation known as the Leahy Amendment.

Some might find this threat a bit rich given the United States’ counterinsurgency record and the character of some local forces it has sponsored, but the American military for many years cut contact with the Indonesian special forces, Kopassus, over its killings and abductions of government critics. That Australia now risked being tarred with the same brush must have been a shock.

With the Americans watching and Brereton having found credible evidence of specific war crimes, the Morrison government had little choice but to follow the judge’s recommendation for a formal criminal investigation. Now, with a federal judge finding “substantial truth” in the allegations against Roberts-Smith, the current government has added interest in the OSI’s work.

A finding for Roberts-Smith would have been a strong warning light for the OSI. The light has turned green, though the OSI would need to feel confident it has the high standard of proof required for a successful prosecution. It must be encouraged by the fact that former members of the tight-knit SAS have moved from being anonymous sources for the Fairfax journalists to protected and indemnified witnesses for Brereton, and then to in-camera sworn witnesses before Justice Besanko.

That these soldiers have risked ostracism to testify does, to a large extent, save the “honour of the regiment” for the SAS. Since Brereton, the unit has also been intensively retrained in the rules of war. The warped command system described by Brereton, whereby seasoned non-commissioned officers came to overawe both the younger lieutenants and the captains above them, has also been tackled.

But the question of responsibility doesn’t end with the soldiers committing the alleged offences. Fellow soldiers didn’t come forward. Officers failed to monitor their soldiers closely, signed off on falsified reports of enemy encounters, or implicitly condoned the practice of planting “throwdowns” (weapons or radio sets) on the bodies of killed civilians.

One of the most sickening allegations against Roberts-Smith was that he murdered a one-legged Afghan man and took his prosthetic leg back to base as a war trophy. In an unauthorised bar on the main Australian army base in Uruzgan known as the “Fat Ladies Arms,” Roberts-Smith and other soldiers used this leg as a beer-drinking horn.

The existence of this bar, flouting the rules against alcohol on operations, can hardly have escaped the attention of any of the officers or non-commissioned officers running the operation. That this breach of orders was tolerated perhaps shows the leeway afforded the SAS troops.

In the wake of the Brereton report, at least two serving or retired generals tried to hand in medals won as commanders in Afghanistan but were asked to hold off. ADF chief Angus Campbell’s decision to withdraw the unit citation from special forces personnel who’d served in Afghanistan was overruled by Peter Dutton as defence minister.

This week in Senate hearings, Campbell said a review handed to defence minister Richard Marles two weeks ago had considered whether “a small number of persons who held command appointments” should lose medals or honours. Campbell himself was commander of the Middle East task force covering Afghanistan in 2011–12, regularly visiting Australian troops in the field from his base in the United Arab Emirates, and was awarded the Distinguished Service Cross for his role. Pushed by independent senator Jacqui Lambie, a soldier for ten years, Campbell said he was himself included in the review.

A wider responsibility rests on the political leaders and policy advisers who sent soldiers into an unwinnable conflict in which forty-one would be killed and many more injured, and after which dozens would commit suicide and others, partly for want of control and discipline, seem likely to face imprisonment.

Kim Beazley, newly appointed chair of the Australian War Memorial council, faces some immediate challenges. Two of his predecessors — Kerry Stokes and former defence minister Brendan Nelson, who appeared as a character witness for Roberts-Smith — left an unexploded bomb: an exhibit of Roberts-Smith’s combat gear and material extolling his heroism.

It may be tempting to simply remove the display. But rather than a historical airbrush, an exhibit about the Brereton inquiry and the OSI might better suit the times. Even Charles Bean, the AWM’s founder, included the 1918 rampage in 1918 by Anzac troops against Palestinians at Surafend in his official history of the first world war.

A sad reminder that the whole operation was never really about the Afghans came when the Department of Foreign Affairs and Trade withdrew its embassy from Kabul at the first sign of US withdrawal, two months before the city fell to the Taliban in August 2021. Thousands of Afghans who had worked with Australian forces or agencies were left at risk of vengeance.

This week Australia’s former inspector-general of intelligence and security, Vivienne Thom, reported on their plight to the government. Responding, ministers including Marles, foreign minister Penny Wong and attorney-general Mark Dreyfus blamed the Morrison government and said criteria for asylum would be expanded. But Afghans have been given only until the end of November to apply — how they would do that in the absence of an embassy is unclear — and the program will close at the end of May next year.

Brereton’s recommendation that Canberra not wait for the end of investigations and trials to pay compensation to Afghan victims and bereaved families was put in the too-hard basket eight months later when the Taliban took Kabul.

The dust of Uruzgan, as sung about the Australian diplomat who performs under the name Fred Smith, will keep blowing in. •