Ben Roberts-Smith: Decorated army veteran charged with war crimes by Australian Federal Police

Decorated former soldier Ben Roberts-Smith faces life in prison after being charged with five war crimes.

The 47-year-old Special Air Service veteran was arrested at Sydney Airport on Tuesday morning, bringing to a head a five-year investigation that has cost tens of millions of dollars.

Hours after being marched off a plane on the tarmac, the Victoria Cross recipient was refused bail with the view to reappearing at NSW Bail Division Court 7 on Wednesday.

Australian Federal Police Commissioner Krissy Barrett said he faced five counts of war-crime murder.

The inquiry was conducted by the AFP in conjunction with the Office of the Special Investigator — the Government agency established to probe rumours of illegal killings by Australian special forces soldiers sent to Afghanistan.

Mr Roberts-Smith’s charges relate to incidents in Uruzgan Province over a three-year period.

Ms Barrett said it would be alleged that “a man was a member of the ADF when he was involved in the death of Afghan nationals between 2009 and 2012 in circumstances that constitute war crimes under the Commonwealth Criminal Code”.

“The offence of war crime murder carries a maximum penalty of life imprisonment,” she said.

“It will be alleged the victims were not taking part in hostilities at the time of their alleged murders in Afghanistan,” she said.

“It will be alleged the victims were detained, unarmed, and were under the control of ADF members when they were killed.

“It will be alleged the victims were shot by the accused or shot by subordinate members of the ADF in the presence of and acting on the orders of the accused.”

In a 2023 defamation ruling, Federal Court Justice Anthony Besanko found Mr Roberts-Smith committed, or was complicit in, the murder of several unarmed Afghans.

Whereas Justice Besanko arrived at that conclusion “on the balance of probabilities” — the burden of proof applicable to civil matters — criminal prosecutors will have to prove guilt “beyond reasonable doubt”.

OSI director of investigations Ross Barnett gave an insight into the scale of that challenge.

“These war crimes allegations are extremely complex matters to investigate,” he said.

“Unlike a conventional investigation that’s conducted in Australia, the OSI has been tasked with investigating literally dozens of murders alleged to have been committed in the middle of a war zone in a country 9000km from Australia that we can no longer access.

“So, the challenge for investigators is that, because we can’t go to that country, we don’t have access to the crime scene. We don’t have photographs, site plans, measurements, the recovery of projectiles, blood splatter analysis, all of those things we would normally get at a crime scene.

“If you add to that, we don’t have access to the deceased. There’s no post-mortem, therefore there’s no official cause of death. There’s no recovery of projectiles to link to weapons that might have been carried by members of the ADF.

“Often we have to start our investigation only with one or two photographs on the battlefield and some contemporary ADF reporting and potentially some third-party eyewitness testimony about what’s alleged to have occurred.”

OSI annual reports show it has received $231m in Federal funding in the five years it has existed to the end of the 2024-25 financial year.

Mr Roberts-Smith’s expected charges related to the following incidents:

• The death of a person “on or about 12 April, 2009, at Kakarak, Uruzgan Province, Afghanistan”;
• The alleged aiding, abetting, counselling or procuring of another person to cause the death of a person on the same time and date;
• The alleged aiding, abetting, counselling or procuring of another person to cause the death of a person “on or about 11 September, 2012, at Darwan, Uruzgan Province, Afghanistan”;
• The death of a person “on or about 20 October, 2012, in Syahchow, Uruzgan Province, Afghanistan”; and
• The alleged aiding, abetting, counselling or procuring of another person to cause the death of a person on that same date.

Mr Barnett said his office had commenced 53 investigations involving allegations of war crimes, of which 39 had been “provisionally finalised unless new evidence emerges”.

“Those 39 matters have also been comprehensively investigated to the same high standard as today’s charges,” he said.

“But we have not gathered sufficient evidence to meet the threshold for the referral of a brief of evidence to the Director of Public Prosecutions. Other investigations remain ongoing.”

Mr Roberts-Smith’s arrest ignited a political brawl, with Pauline Hanson immediately coming to the veteran’s defence.

“Ben, his immediate and border defence family need the Australian people’s support right now and I will not abandon him like so many other politicians,” Senator Hanson said on social media platform X.

“Ben was disgracefully arrested in front of his twin 15 year old girls. He will be held in jail for seven days. He gets just one bail application. If that application fails, they can hold him for two years.”

Former Labor defence minister Joel Fitzgibbon said “if people are found guilty of war crimes in Afghanistan then you know they have to be held to account”.

“In defence of the boys generally, we sent them to the most dangerous part of the world,” ,” he told Sky News.

“Difficult time for them. They are all Australian heroes in my mind. If some lost their way a little in all those circumstances then again they need to be held to account.”

Ms Barrett used Tuesday’s press conference to stress that the charges related to “a very small section” of the Australian Defence Force.

“The overwhelming majority of our ADF do our country proud,” she said.

“Today’s charges are not reflective of the majority members who serve under the our Australian flag with honour with distinction and with the values of a democratic nation. Today is a day to rally behind the ADF and be mindful of the families whose loved ones have died while serving our country.”

Hugh Poate, whose 23-year-old son Robert Poate was killed in a tour of duty in Afghanistan in 2012, said Mr Roberts-Smith’s arrest was “totally unjust”.

Pte Poate died after he, Cpl Stjepan Milosevic and Sapper James Martin were ambushed by an Afghan army deserter known as Hekmatullah.

“It shows the scales of justice are totally unbalanced,” Mr Poate said.

“The OSI has spent years and over $300 million, determined to find enough evidence to arrest Ben for allegedly murdering Afghans but successive Governments have taken no action at all to capture Hekmatullah, who proudly confessed in the Afghan Supreme Court to murdering three Australian soldiers.

“There was no Government outcry when these Australian soldiers were murdered, but successive Governments have been relentless in searching for evidence to arrest BRS and other SAS soldiers on the basis of allegations.”

Mr Roberts-Smith was supported by billionaire Kerry Stokes — who previously employed the veteran at the Seven Network — during his failed defamation action against Nine.

Mr Stokes is a major shareholder in Southern Cross Media, owner of The Nightly and The West Australian.