The case had been called Australia’s trial of the century. And although it centred on a claim of defamation, it grappled with a more consequential question: was the country’s most decorated living soldier a war criminal?
On Thursday, a judge effectively found that the answer was yes.
Four years after the soldier, Ben Roberts-Smith, sued three newspapers that had accused him of killing unarmed Afghan prisoners in cold blood, the judge ruled against him in his defamation case, finding that the newspapers had proved their accounts of his actions were substantially true.
The judgment was a rare victory for the news media in a country whose notoriously harsh defamation laws have been criticised for favouring accusers. And it will reverberate far beyond Roberts-Smith, as Australia continues to contend with the fallout of its 20-year mission in Afghanistan and the conduct of its elite special forces there.
“Australia has a reputation for being very plaintiff-friendly,” said David Rolph, a professor of media law at the University of Sydney. “Here we’ve got a comprehensive victory for the newspapers; that’s not something that you see in every defamation case in Australia.”
He added that the judgment would “bring war crimes into renewed focus”, and may “put pressure on investigating and prosecuting authorities to investigate and consider charges for war crimes”.
In 2020, the country’s military released a damning public account of years of battlefield misconduct among its special forces in Afghanistan, including “credible evidence” that 25 soldiers had been involved in the murders of 39 Afghan civilians.
A government agency was subsequently created to investigate war crimes committed in Afghanistan, and it has started to examine 40 to 50 allegations of criminal behaviour. In March, authorities made the first arrest of an Australian soldier in a case involving the war crime of murder, accusing him of killing an Afghan man.
Although Roberts-Smith himself was not on trial in the case decided Thursday, and it was a civil, not a criminal, case, it was the first time a war crimes allegation had been examined in open court in Australia.
Roberts-Smith, 44, was once hailed as the exemplar of an Australian soldier. In the 17 years he spent in the military, he rose through the ranks to become a commander of the Special Air Service Regiment. He received Australia’s top two military honours and was named Australia’s Father of the Year in 2013. Two portraits of him are displayed in the national war memorial.
But his public image was shattered in 2018, when The Sydney Morning Herald; The Age, a newspaper in Melbourne; and The Canberra Times published a series of articles accusing Roberts-Smith of murdering, or being complicit in the murders of, six Afghans.
Roberts-Smith was not named in the articles, but he later argued in court that he was clearly identifiable.
Over 110 days, the court heard from 41 witnesses, including many current or former special forces soldiers who gave evidence anonymously or in courtrooms closed to the public.
Lurid and bizarre details emerged: that Roberts-Smith had hired a private investigator to spy on a girlfriend at an abortion clinic after they had agreed to end her pregnancy; that he had been accused of burying evidence in a child’s lunchbox in his backyard; and that he had poured gasoline on his personal laptop and set fire to it.
The case contained two centrepiece allegations. In 2009, the newspapers said, two Afghan men were discovered hiding in a tunnel at a compound and taken prisoner. Roberts-Smith, the newspapers reported, killed one of the men, who had a prosthetic leg, and ordered a more junior soldier to kill the other as a form of initiation. Roberts-Smith then took the prosthetic leg back to Australia, the newspapers said, and encouraged other soldiers to use it as a novelty drinking vessel.
The newspapers also said that, in 2012, Roberts-Smith kicked an unarmed, handcuffed Afghan farmer off a cliff and that a colleague then shot the man dead as Roberts-Smith watched.
Roberts-Smith denied that any Afghans had been found in the tunnel in 2009. In the other case, he said, the man was a Taliban scout, not a farmer, and had been killed lawfully in combat, not after being kicked off a cliff.
The newspapers had to prove it was more likely than not — rather than beyond a reasonable doubt, as in a criminal case — that Roberts-Smith committed war crimes.
The judge found that the newspapers had successfully proved that their accounts of the two events were true, as well as Roberts-Smith’s complicity in another murder. The newspapers did not successfully prove his involvement in two other murders.
Nine, the company that owns The Sydney Morning Herald and The Age, said in a statement that the verdict was a “vindication” of the journalists involved, and that their articles “will have a lasting impact on the Australian Defence Force and how our soldiers conduct themselves during conflict”.
Arthur Moses, Roberts-Smith’s lawyer, said that his legal team would consider an appeal.
This article originally appeared in The New York Times.
Written by: Yan Zhuang
©2023 THE NEW YORK TIMES
