The Defence Force also referred the report to the Australian federal police for criminal investigation, including the names of the 25 soldiers who were accused of murder (names were redacted in the Brereton report).
In August 2021, less than a year after the report was published, the puppet Afghan government and its army collapsed, all foreign forces pulled out and the Taliban took power: the process of gathering evidence for criminal prosecutions of the SAS killers suddenly ground to a halt. An Office of the Special Investigator had been created and more than 50 investigators and intelligence analysts assigned to the task, but none of them could go to Afghanistan to interview the witnesses to the atrocities.
So far there has been only one indictment of an SAS soldier (this March), and there is actually film of him shooting his victim. Most of the accused were a little smarter than that, and there was reason to fear the whole process would run into the sand. Then former SAS corporal Ben Roberts-Smith rolled up and inadvertently saved the day.
Roberts-Smith is Australia’s most decorated living soldier. He was awarded the Victoria Cross for “most conspicuous gallantry” in the battle of Tizak in Afghanistan in 2010.
He is also a man who kicked a handcuffed prisoner off a cliff in Darwan in 2012, and then ordered a subordinate soldier to finish the man off. Three years before that he murdered a disabled man with a prosthetic leg, then brought the leg back to the SAS base so his soldiers could chug beer from it. And lots more in the same vein.
His name was on the list of 25, and many people had heard about his “exploits”. A series of articles in three leading newspapers even detailed them at length in 2018. But the evidence was not strong enough for a criminal conviction, so Roberts-Smith would probably never have seen the inside of a courtroom so long as his former colleagues kept silent.
And then the fool sued the three papers for defamation of character. That’s a civil case, not a criminal one, and the standard of evidence required is lower.
Last Friday Justice Anthony Besanko, after a year-long trial, found that the major allegations made by the papers — that Roberts-Smith is a murderer, a criminal and a bully — were proven to the civil standard of the balance of probabilities.
He won’t go to jail, but he has lost his job, any money he has will be swallowed up by the costs of the trial (about $A30 million), and he may have to leave Australia to avoid further legal action — because this courtroom drama will reinvigorate the prosecution of the other alleged war criminals.
Every country that sends its troops abroad to fight faces the same problem, especially among elite units, where a “warrior culture” is often encouraged. The attempt to impose humanitarian rules on war is always bound to fall short, but the effort must be made nevertheless. Australia is doing a lot better than most other countries.
