Ben Roberts-Smith: Australia's top soldier appeals over war crimes defamation trial - BBC

By Tiffanie Turnbull

BBC News, Sydney

Australia's most-decorated living soldier Ben Roberts-Smith is appealing against a landmark defamation judgement which found he committed war crimes.

A judge last month ruled articles alleging the Victoria Cross recipient had murdered four Afghans were true.

It was the first time in history any court has assessed claims of war crimes by Australian forces.

Mr Roberts-Smith is not facing criminal charges and maintains his innocence. His grounds for appeal are unknown.

The former special forces corporal sued three Australian newspapers over a series of articles alleging serious misconduct while he was deployed in Afghanistan between 2009-2012 as part of a US-led military coalition.

At the time the articles were published in 2018, Mr Roberts-Smith was considered a national hero, having been awarded Australia's highest military honour for single-handedly overpowering Taliban fighters attacking his Special Air Service (SAS) platoon.

The 44-year-old claimed the papers ruined his life with their reports that he had broken the moral and legal rules of war.

His defamation case - dubbed by some "the trial of the century" - lasted 110 days and was rumoured to have cost up to A$25m ($16.3m; £13.2m).

On 1 June a Federal Court judge threw out the case against The Age, The Sydney Morning Herald, and The Canberra Times, ruling it was "substantially true" that Mr Roberts-Smith had murdered unarmed Afghan prisoners and civilians and bullied fellow soldiers.

Justice Anthony Besanko also found that Mr Roberts-Smith lied to cover up his misconduct and threatened witnesses.

Additional allegations that he had punched his lover, threatened a peer, and committed two other murders were not proven to the "balance of probabilities" standard required in civil cases.

Mr Roberts-Smith, who left the defence force in 2013, has not been charged over any of the claims in a criminal court, where there is a higher burden of proof.

None of the evidence presented in the civil defamation case against Mr Roberts-Smith can be used in any criminal proceedings, meaning investigators must gather their own independently.

But the case has raised the spectre of a possible wider reckoning over claims of war crimes by Australian forces.

In 2020, a landmark investigation known as the Brereton Report found "credible evidence" that elite Australian soldiers unlawfully killed 39 people in Afghanistan.

It recommended that 19 current or former soldiers should be investigated over alleged killings of prisoners and civilians from 2009-13.

Australian troops were deployed to Afghanistan between 2001 and 2021, as part of a US-led coalition that ousted the Taliban after the 11 September 2001 attacks in the United States. The Taliban retook control of Afghanistan in 2021.