Australia’s most decorated veteran, Ben Roberts-Smith, faces war crime charges linked to Afghanistan service, potentially leading to a life sentence. This marks the second ADF member charged under the Brereton Inquiry, which found credible evidence of 39 unlawful deaths.
The Brereton Inquiry and the OSI’s Role
Ben Roberts-Smith, a former Special Air Service (SAS) corporal and Australia‘s most decorated living veteran, has been charged with five counts of war crime murder linked to his service in Afghanistan from 2009 to 2012. The 47-year-old was arrested at Sydney Airport on April 7, 2026, and denied bail for a court hearing the following day. The charges allege he intentionally caused the death of an Afghan national in April 2009 and aided in the deaths of civilians in Darwan and Syahchow in September and October 2012. If convicted, Roberts-Smith could face a life sentence under Australian law, which defines war crime murder as the intentional killing of non-combatants, prisoners, or wounded soldiers.
The allegations represent the second instance of an Australian Defence Force (ADF) member facing war crimes charges in Afghanistan. A 2020 report by the Brereton Inquiry, an independent review of alleged unlawful killings by Australian troops, found ‘credible evidence’ of 39 unlawful deaths during the 2001-2021 conflict. While the report did not name individuals, it prompted the Office of the Special Investigator (OSI) to launch criminal investigations. Roberts-Smith is the first person charged under this inquiry, with the Office of the Special Investigator (OSI) citing ‘sufficient evidence’ to proceed. The Australian Federal Police (AFP) confirmed the arrest, stating the charges do not reflect the conduct of the majority of ADF personnel.
The Criminal Case and Evidence Concerns
“allegedly unarmed Afghan nationals not engaged in hostilities”
The criminal case against Roberts-Smith includes one count of murder, one count of jointly commissioning a murder, and three counts of aiding, abetting, counselling, or procuring a murder. The charges allege the victims were shot by him or under his orders. AFP Commissioner Krissy Barrett noted the victims were ‘allegedly unarmed Afghan nationals not engaged in hostilities’, a key factor in determining whether the killings constitute war crimes. However, the absence of forensic data has raised concerns about the reliability of the evidence, with critics arguing the lack of tangible proof could weaken the prosecution’s case.
Legal Precedents and Defamation Trial
Roberts-Smith’s legal team contested similar allegations in a 2023 defamation trial, where a Federal Court found claims of his involvement in the deaths of four detainees were ‘substantially true‘. Despite this, the court ruled no criminal guilt had been established, as the case was civil in nature. Roberts-Smith’s appeal against the ruling was dismissed in May 2025, allowing the criminal charges to proceed. The OSI has acknowledged further arrests may occur if additional evidence emerges, though it has not disclosed the number of ongoing investigations.
Broader Implications for the ADF
Roberts-Smith is not the only Australian soldier facing war crimes charges. In 2023, Oliver Schulz, another former SAS member, was charged with shooting an Afghan man three times in Uruzgan province in 2012. Schulz pleaded not guilty, aligning with the broader pattern of cases emerging from the Brereton Inquiry. The 2020 report, which found credible evidence of 39 unlawful killings by Australian soldiers, prompted the OSI to investigate potential criminal cases. While only two individuals have been charged so far, the inquiry’s findings have led to calls for systemic reforms within the ADF.
Psychological Impact and Investigation Challenges
The Brereton Inquiry also highlighted the psychological impact on soldiers, noting many involved in alleged misconduct faced ‘extreme stress’ during the conflict. The report’s findings justified the establishment of the OSI, tasked with pursuing criminal charges against individual soldiers. However, the lack of access to Afghanistan and reliance on testimonial evidence have drawn criticism from human rights organizations, which argue the investigation process is flawed.
National Debate and Public Scrutiny
The charges against Roberts-Smith have sparked a national debate about Australia‘s involvement in the Afghanistan war and the accountability of its ADF. The Australian War Memorial, which previously honored Roberts-Smith as a national hero, announced plans to update its display to reflect the allegations. This shift underscores growing public scrutiny of the ADF‘s conduct during the conflict. Prime Minister Anthony Albanese and Opposition Leader Angus Taylor avoided political comment on the case, emphasizing the need for the legal process to proceed without interference.
Military Honor vs. Legal Accountability
“substantially true”
The case also highlights the tension between military honor and legal accountability. Roberts-Smith, a Victoria Cross recipient, was celebrated for his bravery during the 2004 bombing of a military convoy in Afghanistan, which earned him the highest award for gallantry. His defense has framed the allegations as politically motivated, arguing the charges aim to tarnish the reputation of Australian soldiers. However, the OSI‘s decision to pursue criminal charges suggests the investigation is based on concrete evidence rather than political pressure.
Post-Conflict Reckoning and International Context
The Roberts-Smith case marks a pivotal moment in Australia‘s post-conflict reckoning with its military actions in Afghanistan. The Brer,eton Inquiry‘s findings have already led to reforms, including the establishment of the OSI and changes to military training programs. However, the criminal prosecution of individual soldiers raises complex questions about balancing justice and protecting military personnel. Legal experts note prosecuting soldiers for alleged misconduct during war is challenging, including proving intent and avoiding political bias.
Global Implications for War Crimes Accountability
The case also has international implications, reflecting broader global efforts to hold military personnel accountable for war crimes. Australia‘s approach aligns with international law, which mandates states to investigate and prosecute alleged war crimes by their forces. However, the lack of access to Afghanistan and reliance on testimonial evidence have drawn criticism from human rights organizations. As the trial proceeds, it will serve as a test case for how nations navigate the intersection of military service, legal accountability, and public trust in the armed forces.
- What charges did Ben Roberts-Smith face?
Ben Roberts-Smith faced five counts of war crime murder, including one count of murder, one count of jointly commissioning a murder, and three counts of aiding, abetting, counselling, or procuring a murder. The charges allege he intentionally caused the death of an Afghan national in April 2009 and aided in the deaths of civilians in Darwan and Syahchow in September and October 2012. If convicted, he could face a life sentence under Australian law. - What role did the Brereton Inquiry play in the case?
The Brereton Inquiry (2020) found credible evidence of 39 unlawful deaths by Australian troops during the Afghanistan conflict. This prompted the Office of the Special Investigator (OSI) to launch criminal investigations. Roberts-Smith is the first individual charged under this inquiry, with the OSI citing sufficient evidence to proceed. - How does the legal process for war crimes charges work in Australia?
The Australian Federal Police (AFP) confirmed Roberts-Smith's arrest, noting the victims were 'allegedly unarmed Afghan nationals not engaged in hostilities'. However, the absence of forensic data has raised concerns about evidence reliability. A 2023 defamation trial found claims of his involvement in detainee deaths were substantially true, but no criminal guilt was established. The OSI's decision to charge him reflects a shift from civil to criminal proceedings. - What is the significance of the Office of the Special Investigator (OSI) in this case?
The OSI was established to investigate alleged unlawful killings by Australian troops following the Brereton Inquiry. It cited sufficient evidence to charge Roberts-Smith, marking the first criminal case under the inquiry. The OSI has also acknowledged further arrests may occur if additional evidence emerges, though it has not disclosed the number of ongoing investigations. - How does this case relate to international law on war crimes?
Australia's approach aligns with international law, which mandates states to investigate and prosecute alleged war crimes by their forces. However, the lack of access to Afghanistan and reliance on testimonial evidence have drawn criticism from human rights organizations. The case highlights challenges in proving intent and avoiding political bias in prosecuting soldiers for alleged misconduct during war.
