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Ben Roberts-Smith departs the Federal Court of Australia in Sydney, June 9, 2021.
© 2021 Sam Mooy/Getty Images
An Australian court has sided with three newspapers in a defamation suit brought by former Australian Special Forces soldier Ben Roberts-Smith over coverage of the murders of civilians during the armed conflict in Afghanistan. The case is a victory for public interest journalism and the role it plays in bringing important issues to light.
The court found the media outlets had “established substantial or contextual truth of allegations of murders of unarmed civilians in Afghanistan” by Roberts-Smith, who had sued the newspapers for defamation over the coverage of the killings.
The verdict puts Australian war crimes investigations back into the spotlight. The media defended their reporting, asserting that it was true. While not a criminal trial, it is the first time a civilian court in Australia has assessed allegations of war crimes committed by an Australian soldier.
During the trial, former Special Air Service (SAS) soldiers testified to witnessing summary executions of civilians, and being bullied into proving themselves by carrying out killings themselves. Among the news reports that the court found to be substantially true were Roberts-Smith kicking an unarmed Afghan civilian off a cliff and procuring other soldiers to shoot him, pressuring a newly deployed soldier to execute an older Afghan man, and machine-gunning a civilian with a prosthetic leg.
The Australian Office of the Special Investigator is currently investigating more than 40 incidents relating to alleged war crimes committed by Australian Special Forces in Afghanistan from 2005 to 2016. In March 2023, police made their first arrest of a soldier accused of murdering an Afghan civilian in 2012.
Under international humanitarian law, the Australian government is obligated to investigate alleged war crimes by its forces and prosecute those responsible. The 2020 report of the Independent Afghanistan Inquiry (known as the Brereton Report) recommended the Australian government pay compensation to survivors and families of victims unlawfully killed without waiting for the establishment of individual criminal liability. The Department of Defence has said it is looking into the recommendations and how to address the issue of compensation, but they have not publicly indicated what, if any, progress has been made.
Criminal trials have not yet started and will likely take years. But the families of victims – who have now waited more than a decade – deserve better. Prompt and adequate payments to the victims or their families as recommended by the Brereton Report is not only legally required, but is the right thing to do.
