Ben Roberts-Smith, Australia’s most decorated living soldier, will remain in custody for several months following his arrest and charging over multiple alleged war crimes. The 47-year-old former Special Air Service (SAS) operator spent the night in Sydney’s Silverwater prison after being taken into custody on Tuesday.
The charges include two counts of the war crime of murder and three counts of aiding or abetting the same charge. These allegations stem from his deployments in Afghanistan between Afghanistan between 2009 and 2012, where he is accused of murdering unarmed civilians and failing to prevent unit members from killing three other individuals.
During a brief, online hearing in the NSW Bail Division Court on Wednesday, Roberts-Smith did not appear. His legal team did not make an immediate application for his release, instead requesting an in-person hearing at the Downing Centre Local Court. However, his lawyer, Jordan Portokalli, acknowledged that such a request was “a bit of a pipe dream.”
The judge subsequently re-listed the matter for June 4, ensuring that the Victoria Cross recipient will remain in custody for at least two months whereas the legal process unfolds.
A Watershed Moment for Australian Military Law
The shift of this case from civil litigation to the criminal realm is being viewed by legal experts as a potential watershed for war crimes prosecutions within Australia. While Roberts-Smith has been embroiled in legal battles since 2017—most notably an unsuccessful defamation suit against Nine Entertainment—the current criminal charges represent a significant escalation in accountability.
Gillian Triggs, the former president of the Australian Human Rights Commission, noted that a criminal trial for offenses committed in an overseas theater of war is almost unprecedented in modern Australian history. She highlighted that the area of law is highly technical and lacks a robust body of national precedent.
According to Triggs, the caution exercised by Australian authorities in recent decades can be traced back to failed prosecutions of alleged Nazi war criminals in the 1990s. However, the current environment suggests a shift in appetite for prosecution. With Roberts-Smith and another former SAS soldier, Oliver Schulz—who was charged in 2023 with the murder of a young man in Afghanistan in 2012—both facing charges, the “floodgates” of prosecutions may be opening.
Triggs suggested that these proceedings could strengthen the resolve of justice department prosecutors to pursue cases where evidence is deemed sufficient, signaling a new era of military accountability.
The Complexity of Evidence and Jurisdiction
Despite the gravity of the charges, prosecutors face a formidable climb to secure a conviction. The primary hurdle is the evidentiary standard: while a Federal Court judge previously found that Roberts-Smith was responsible for several killings, that ruling was based on the civil standard of the “balance of probabilities.” A criminal conviction requires proof “beyond reasonable doubt,” a significantly higher threshold.
Rain Liivoja, a professor of international law at the University of Queensland, pointed out that the passage of time and the location of the alleged crimes create immense logistical challenges. Collecting reliable evidence from a region that is difficult to access, years after the events occurred, complicates the prosecution’s ability to build a watertight case.
The decision to pursue these charges domestically also carries international implications. By initiating proceedings within Australia, the matter is effectively removed from the jurisdiction of the International Criminal Court (ICC), as the court generally only intervenes when national legal systems are unwilling or unable to prosecute.
Timeline of Legal Progression
| Period/Date | Legal Action | Outcome/Status |
|---|---|---|
| 2017–2023 | Defamation Lawsuit | Unsuccessful; Federal Court found he committed war crimes (Civil Standard) |
| 2023 | Oliver Schulz Charged | Another SAS soldier charged with war crimes in Afghanistan |
| Tuesday (Recent) | Criminal Arrest | Arrested at Sydney airport; charged with murder and aiding/abetting |
| Wednesday (Recent) | Bail Hearing | Bail not sought immediately; next hearing set for June 4 |
What Which means for the Australian Defence Force
The proceedings against Roberts-Smith are not merely about an individual soldier but serve as a litmus test for the Australian government’s commitment to the Geneva Conventions and international humanitarian law. The case brings intense scrutiny to the culture of special operations units and the mechanisms used to report and investigate alleged misconduct in the field.
For the victims’ families in Afghanistan, the move toward criminal charges offers a different path toward justice than the civil courts. While a defamation trial focused on the reputation of the soldier, a criminal trial focuses on the legality of the actions and the loss of life.
The international community will be watching closely to see if Australia can successfully navigate the technicalities of overseas war crime prosecutions. If successful, it may set a precedent that encourages other nations to hold their elite forces to the same legal standards as any other citizen.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice.
The next confirmed checkpoint in this case is the court appearance scheduled for June 4, where the court will further consider the matter of custody and the progression of the criminal charges.
We invite our readers to share their perspectives on military accountability in the comments below and share this report with others interested in international law.
