Authorities come under pressure to bring charges against soldier

Australia likes to be seen as a free and fair country built on democratic principles and equality. It is quick to condemn others for not abiding by those principles, but what happens when the spotlight is turned the other way?

Well before Australia withdrew from its 20-year involvement in Afghanistan from 2001 to 2021, stories began to circulate that Australian troops had committed war crimes, crimes that included alleged murder of innocent civilians, including those by the country's military elite.

These were quickly swept under the carpet of military secrecy and official cover-up.

How could soldiers, especially those from the elite Special Air Service Regiment, commonly known as the SAS, be involved in such activities? After all, Australia was supposed to be on the side of good, helping Afghan people rebuild their country.

All this came to a head in 2018 when three newspapers, The Sydney Morning Herald, The Age and The Canberra Times, began running stories alleging one of the country's most decorated soldiers and recipient of the Victoria Cross, the highest award for valor, had murdered civilians.

That soldier was SAS Lance Corporal Ben Roberts-Smith, who sued the newspapers (owned by Nine Entertainment) and three journalists for defamation.

In one of Australia's longest defamation cases estimated to have cost well over A$25 million ($16.80 million) in legal costs, the publications claimed they were simply reporting the truth. Roberts-Smith claimed the stories had ruined his reputation.

The newspapers conceded their stories contained allegations of war crimes, but said the stories were accurate and true.

The trial itself lasted for years and heard testimony from dozens of witnesses, including former SAS soldiers and Afghan villagers.

On June 1, in the Federal Court of Australia in Sydney, Judge Anthony Besanko handed down his finding while Roberts-Smith was photographed beside a swimming pool in Bali, Indonesia.

Besanko found while not all the allegations by the newspapers against Roberts-Smith were proven, some of the more significant ones, including the murder of civilians, were.

They include on at least two occasions ordering subordinates to execute Afghan civilians: Killing an Afghan man with a machine gun, then taking his artificial leg as a war trophy, and later forcing soldiers to drink beer from it, and kicking a handcuffed man off a cliff.

If Roberts-Smith has carried out war crimes, why has he not been arrested and charged?

The answer is the defamation case was a civil court action, not criminal.

The ruling puts more pressure on the Australian authorities to bring criminal charges against Roberts-Smith, who is currently under investigation for his conduct in Afghanistan. But no charges have been laid against him.

Because civil trials require a much lower burden of proof, the newspapers only had to show that the allegations were more likely to be true than not, legal experts have said.

Jelena Gligorijevic, senior lecturer in law at the Australian National University in Canberra, said prosecutors will now have to decide whether there is sufficient evidence to prove the murders "beyond reasonable doubt".

"That's very, very different from proving on a balance of probabilities," she was quoted by BBC as saying on June 2.

"This defamation judgment is not at all conclusive on whether they will prosecute, and then whether they will be successful."

There are already calls for Roberts-Smith to be stripped of his military honors, and for tributes dedicated to him in the Australian War Memorial to be removed.

Roberts-Smith was awarded the Victoria Cross in 2011 for his role in a June 2010 operation in tracking down a senior Taliban commander. It was a "capture or kill operation", said the citation on the Australian War Memorial website, which also described how Roberts-Smith killed several Taliban fighters at "close quarters".

In a Feb 8, 2011, sitting of the Australian Parliament, then-prime minister Julia Gillard said of the VC award: "Ben Roberts-Smith has been called a hero, a legend and a role model, and he is all of these. But he is also a human being, a husband, and a father."

After his receipt of the VC, Roberts-Smith became a "national hero" and a standard-bearer for the so-called ANZAC spirit.

ANZAC is an acronym for the Australian and New Zealand Army Corps. The ANZAC spirit has its origins in World War I and was used to describe the bond between Australian and New Zealand troops who fought and died side by side, but is now used by non-indigenous Australians to represent true nationalism.

Arriving at Perth airport on June 15 from New Zealand, where he went after holidaying in Bali, the disgraced fallen war hero said he was "devastated" by the verdict, and told reporters it (the verdict) was a "terrible outcome and the incorrect outcome".

"We haven't done anything wrong so we won't be making any apologies," he said.

Asked if he was proud of how he had behaved when serving Australia, he replied, "Of course."

His return coincided with reports that the Australian Federal Police has abandoned two criminal investigations into alleged murders in Afghanistan involving Roberts-Smith.

Reports say the investigations will be replaced by a new joint task force of the Office of the Special Investigator and Agence France-Presse investigators.

As for Roberts-Smith, he is still a free man but faces an uncertain future.

Few are discussing the case openly because of the complex legalities surrounding not only Roberts-Smith but other soldiers who have allegedly committed war crimes while serving in Afghanistan.

Former SAS captain-turned-politician Andrew Hastie said Justice Besanko had validated the "cold, hard truth" that had burdened SAS officers for years.

The courage of former colleagues in giving evidence against Roberts-Smith had "rescued" the elite regiment, he said.

"They've shown moral courage," Hastie told the ABC in an interview. "They've been brave. They've not won anything out of this. It's been very tough for them.

"I honor their work, because it's they who have demonstrated that the regiment has a moral pulse, that the regiment can self-correct. It's they who have repudiated the toxic culture and behavior."

He described those who gave evidence against Roberts-Smith as some of the "toughest men I know".

"They've seen a lot of combat. They fight tough, but they fight fair."

A dark cloud

However, the defamation trial, while damning Roberts-Smith, casts a dark cloud over the Australian military where accusation of war crimes has been rife for several years.

In 2011, the ABC reported how "capture or kill" operations allegedly involved the murder of civilians. In 2017, there were more reports of Australian soldiers allegedly killing innocent civilians. And all the time the finger was being pointed at the elite SAS regiment.

In the following years, Major General Paul Brereton, a judge of the New South Wales Supreme Court and Army Reserve Officer, headed a four-year inquiry.

Known as the Brereton Report, it found "credible evidence" that elite soldiers unlawfully killed 39 civilians and prisoners in Afghanistan.

Australia's military involvement in Afghanistan began in September 2001 and continued until mid-June 2021, making it the longest engagement by Australia in an armed conflict.

The report kept most details a secret but said the allegations included what was "possibly the most disgraceful episode in Australia's military history" — a redacted event that occurred in 2012.

The inquiry found a "warrior culture" within Australia's special forces and recommended that 19 current or former soldiers be investigated over alleged killings of prisoners and civilians from 2009-13.

So far, only one former SAS soldier, Oliver Schulz, has been charged with the war crime of murder.

The report labeled the actions of several Australian SAS members "disgraceful and a profound betrayal of the Australian Defence Force's professional standards and expectations".

However, the full report has been heavily redacted, especially those details about alleged incidents involving civilian Afghans.

What is known is that none of the alleged killings took place during combat, and none of them were combatants.

The circumstances of each, were they to be eventually accepted by a jury, would constitute the war crime of murder, Brereton said.

In all cases, the report found it "was or should have been plain that the person killed was a noncombatant". The chief of the Defence Force, Angus Campbell, said that in each case, the intent cannot be in dispute.

"None were alleged to have occurred in circumstances in which the intent of the perpetrator was unclear, confused or mistaken," he said. "And every person spoken to by the inquiry thoroughly understood the law of armed conflict and the rules of engagement under which they operated."

One alleged incident, heavily redacted in the report, was described as "possibly the most disgraceful episode in Australia's military history".

The report revealed allegations of the "blooding", or initiation, of young special forces soldiers.

The report described a process in which young special forces soldiers were allegedly instructed by their patrol commander to execute a detainee.

Weapons or radios, known as "throwdowns", were allegedly placed on the body, and a cover story allegedly created to mask the crime and deflect any scrutiny.

The report found a culture of secrecy and cover-up pervaded the special forces. Patrols would "compartmentalize" from their leaders and from one another, hiding their actions on the battlefield from all.

Operational reports were allegedly sanitized to make it appear as if special forces were complying with the laws of engagement.

"Operation summaries and other reports frequently did not truly and accurately report the facts of engagements, even where they were innocent and lawful, but were routinely embellished, often using 'boilerplate' language, in order proactively to demonstrate apparent compliance with rules of engagement, and to minimize the risk of attracting the interest of higher headquarters," the report said.

At the same time, special forces saw themselves as above reproach. The report said they allegedly had a sense that they were elite, entitled and beyond the scrutiny of those outside the fence. The normal rules did not apply to them, it said.

The report found younger soldiers viewed their patrol commanders as "demigods". Disobeying their instructions, it was feared, would end their careers.

Complaints ignored

Complaints about Australia's conduct from Afghan nationals and local human rights groups were largely ignored, the report said. The complaints were treated as Taliban propaganda or attempts to secure compensation.

In March, Mark Weinberg, former Commonwealth director of public prosecutions and a judge in the Federal Court and Victorian Court of Appeal, said in Melbourne that it is only recently that Australia has given "serious attention to the issue of war crimes allegedly committed by our forces".

"So far as I am aware, few, if any, Australian servicemen have ever been convicted by an Australian court, or military tribunal of any kind, of an offense that could conceivably be characterized as a serious war crime."

In the wake of the report, the Australian government set up the Office of the Special Investigator, which is currently investigating alleged war crimes committed by Australian troops while in Afghanistan.

Donald Campbell, an international law expert at the Australian National University, said none of the evidence presented in the defamation case can be used in any criminal trial, and investigations would have to start afresh.

"The government has supported the special investigator because they know that if they are going to bring any successful criminal prosecutions, they need to go out and collect evidence in Afghanistan," he said in an interview with the BBC on June 2.

Responsibility for what went wrong must be shared widely, said James Connor, a military sociologist at the University of New South Wales, in the same BBC interview.

"That's not to diminish their actions … but the culture is rotten and the cover-up which has flowed from that is also rotten."