High-profile Australian soldier loses ‘war crimes’ defamation case
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SYDNEY — Australia’s most decorated living soldier lost a high-profile defamation complaint against three of the country’s top newspapers Thursday, capping a case that spanned more than 100 days of often startling testimony, cost more than $15 million and raised fresh allegations of atrocities committed by Australian special forces in Afghanistan.
The judgment was a victory for the Sydney Morning Herald, the Age and the Canberra Times — and, said experts, for Australian journalism.
Five years ago, the papers reported that Ben Roberts-Smith had been involved in the killing of six prisoners while on duty in Afghanistan between 2009 and 2012.
Roberts-Smith — a retired corporal in the Special Air Service, or SAS — sued the newspapers for what he said was falsely portraying him as a war criminal.
In a nation that prides itself on its outsize service in overseas wars, the case quickly assumed its own outsize symbolism. It pitted a towering war hero, who claimed he was the victim of jealous colleagues, against some of the nation’s top investigative journalists, who argued in court that their reporting was accurate.
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That legal defense transformed the defamation proceedings into a de facto war crimes trial, as more than three dozen witnesses testified about killings that occurred more than a decade ago on the other side of the world.
For some Afghans, the case was a rare opportunity to shed light on allegations of wrongdoing by U.S. coalition forces during the two-decade conflict, which ended in 2021 when the Taliban regained control of the country.
“There are very low expectations among Afghans because … they have experienced atrocities without anyone being held to account,” said Nematullah Bizhan, an Afghan lecturer at the Australian National University. “Whatever the outcome, this case is quite important: At least it gives some relief to the families of the victims.”
For Australians, the case promised to either restore or ruin the image of a man whose battlefield exploits had made him a household name.
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“Ben Roberts-Smith is an icon,” said John Blaxland, a professor of International Security and Intelligence Studies at ANU and a former Australian army officer. “He’s literally and metaphorically larger than life.”
The 6-foot-8-inch soldier shot to fame when he was awarded the Victoria Cross for Australia — the country’s highest military honor — in 2011 for almost single-handedly saving fellow troops after they had been pinned down by Taliban machine gun fire during a 2010 operation.
The medal was followed by additional accolades, including lucrative speaking engagements, two portraits in the Australian War Memorial and the Father of the Year title in 2013. The 44-year-old attended the funeral of Queen Elizabeth II last year, after the palace extended an invitation to Victoria Cross and George Cross recipients across the Commonwealth.
In the minds of some Australians, Roberts-Smith embodied the values of courage and sacrifice set by Australian soldiers since World War I.
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Blaxland said Roberts-Smith epitomized the idea of the “perfect soldier.” “Tough, resilient, sharp, intellectually capable, who can take whatever is thrown his way and still get the round on target and come home in time for tea and medals.”
But that myth began to unravel in 2018, when the three newspapers ran a series of articles accusing Roberts-Smith of killing or ordering the killing of a half dozen unarmed Afghan prisoners or civilians.
Among the accusations were that Roberts-Smith kicked a handcuffed Afghan man off a cliff and then ordered him shot; shot a teenage prisoner point-blank in the head; and gunned down a disabled man, whose prosthetic leg was later used by SAS soldiers to drink beer.
Roberts-Smith called the allegations “a catalogue of lies, fabrications and misrepresentations” and sued.
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Defamation laws are far stricter in Australia than in the United States, where public figures must prove actual malice on the part of news media, noted David Rolph, a law professor at the University of Sydney. A law passed in 2021 enables media in much of Australia to defend themselves by arguing that what they publish is in the public interest, but the change came too late for this case, he said.
“Because truth is the only defense here, rather than picking over what the journalists did, the focus of the trial has been on whether he did it or not,” Rolph said.
That meant that Roberts-Smith sat through months of civil testimony that often felt like a criminal trial.
A junior member of his patrol testified, for example, about the man being kicked off the cliff and shot — a claim backed up by three Afghans who appeared in court remotely. But Roberts-Smith and another soldier denied that version of events, and instead said the man was a Taliban scout who had been lawfully killed.
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Roberts-Smith similarly denied wrongdoing in four other killings, and claimed a sixth never occurred.
In closing arguments, Roberts-Smith’s attorney sought to remind the court that his client was not in the defendant’s box.
“This trial, which has lasted over 100 days, has been called a great many things: the trial of the century, a proxy war crimes trial, and an attack on the freedom of the press,” Arthur Moses said. “It is none of these. It is a case which has been brought because the respondents chose to defame Mr. Roberts-Smith.”
Yet, at times the proceedings threatened to tarnish Roberts-Smith further by raising new allegations.
His ex-wife accused him of burying evidence in a child’s lunchbox in their backyard, including USB drives with classified information and photos of soldiers drinking out of a prosthetic leg. Roberts-Smith denied burying the USB drives or withholding information, but acknowledged possessing them. He admitted to burning a laptop with gasoline, but denied it was to conceal evidence.
A private investigator testified that Roberts-Smith had paid him to unwittingly send soldiers threatening letters to keep them from cooperating with investigators, and to film Roberts-Smith’s mistress attending an abortion clinic.
Perhaps most shocking, a friend of Roberts-Smith claimed there were three more alleged killings to which the soldier had been linked.
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Roberts-Smith has not been charged with a crime, but Australian media have reported that he is one of three SAS soldiers who are the focus of an ongoing investigation by the Office of the Special Investigator, which was created in the wake of a scathing 2020 report by the Inspector-General of the Australian Defense Force that found Australian special forces had committed war crimes in Afghanistan.
In March, an SAS soldier was arrested and charged with “war crime — murder” for fatally shooting an unarmed Afghan in a wheat field in 2012. It is the first case of its kind, authorities said.
On Wednesday, the head of the ADF told lawmakers that the United States has warned it may suspend cooperation with Australian special forces due to the mounting war crimes concerns.
Ben Mckelvey, a journalist who has written a book about Australian special forces operations in Afghanistan, said the defamation trial had provided a valuable window into the hazy rules governing the U.S.-led “kill/capture” program, which was supposed to only target Taliban leaders but soon consumed the SAS’s time.
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But by focusing on Roberts-Smith, the proceedings and their media coverage also threatened to miss the bigger picture, including whether commanding officers or politicians knew about or even condoned the alleged war crimes.
Mckelvey said Australia needs to launch a royal commission — akin to a U.S. congressional inquiry — to understand what went wrong.
The defamation trial, he said, was “just a little peek through the crack in the door.”
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Source: The Washington Post
