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Ben Roberts-Smith Loses War Crimes Defamation Case

Ben Roberts-Smith loses war crimes defamation case as one of Australia's highly decorated soldier. The publications had been accused of making false claims that he committed war crimes during his service in Afghanistan.

Cecilia Jones
Jun 01, 20235109 Shares204345 Views
Ben Roberts-Smith loses war crimes defamation caseas one of Australia's highly decorated soldiers. The publications had been accused of making false claims that he committed war crimes during his service in Afghanistan.
This civil trial marked the first instance in which a court examined allegations of war crimes involving Australian forces. However, the judge ruled that four out of the six murder allegations, all of which were vehemently denied by Roberts-Smith, were found to be largely accurate.
During the defamation case, several disturbing allegations were brought to light regarding the actions of Ben Roberts-Smith, Australia's most-decorated living soldier. The judge found substantial truth in four out of the six murder allegations leveled against him, despite his staunch denial.
One of the incidents involved Roberts-Smith kicking a handcuffed farmer off a cliff, resulting in the man losing his teeth and ultimately being shot dead. Another accusation detailed the shooting of a captured Taliban fighter in the back more than ten times. Shockingly, the soldier allegedly took the fighter's prosthetic leg as a trophy, which was later used as a drinking vessel by fellow troops.
Perhaps equally troubling were the claims that Roberts-Smith ordered or approved of two murders, intending to initiate or "blood" rookie soldiers. These allegations highlight the gravity of the accusations and the significance of the court's ruling in this landmark case.
Justice Anthony Besanko, in his ruling, determined that the newspaper failed to substantiate two of the murder allegations against Ben Roberts-Smith. Similarly, the reports of his assault on a woman with whom he was having an affair and a threat against a junior colleague were not proven. However, the court did find merit in additional allegations of unlawful assault on captives and bullying of peers.
It's worth noting that Roberts-Smith, who left the defense force in 2013, has not faced any criminal charges related to these claims. Criminal courts impose a higher burden of proof. It's also important to mention that the 44-year-old soldier was absent during the delivery of the judgment.
Following the court's decision, a Taliban spokesman seized the opportunity to highlight what he perceived as "uncountable crimes" committed by foreign forces in Afghanistan. However, he expressed skepticism regarding any global court's willingness to pursue accountability for such acts.
Australia deployed troops to Afghanistan between 2001 and 2021. Australian Defence Minister Richard Marles refrained from commenting on the case, emphasizing that it pertained to a civil matter.
Ben Roberts-Smith, a renowned war veteran, holds a prominent status as Australia's most celebrated living war veteran, having served in the esteemed Special Air Service Regiment (SAS). In recognition of his extraordinary valor, he was bestowed with the country's highest military accolade, the Victoria Cross, in 2011. The Victoria Cross was awarded for his exceptional bravery in single-handedly overpowering Taliban machine-gunners who were relentlessly attacking his platoon.
However, Roberts-Smith's esteemed public image was irreparably damaged in 2018 when leading newspapers, namely The Sydney Morning Herald, The Age, and The Canberra Times, commenced publishing articles detailing his alleged misconduct between the years 2009 and 2012. These revelations shattered his previously untarnished reputation and thrust him into a protracted legal battle to defend his name.

Top Australian soldier Ben Roberts-Smith loses defamation case - BBC News

During the lengthy and high-profile defamation case, Ben Roberts-Smith vehemently contested the accuracy of the reported killings, arguing that five of them were lawful actions conducted during combat and that the sixth alleged killing never occurred.
Dubbed by some as "the trial of the century," the defamation case spanned an extensive 110 days, reportedly incurring costs of up to A$25 million ($16.3 million, £13.2 million). Throughout the trial, an array of more than 40 witnesses, including Afghan villagers, a government minister, and various current and former SAS soldiers, provided extraordinary testimonies that delved into every aspect of Roberts-Smith's life. The breadth and depth of the evidence presented added to the significance and public interest surrounding the case.
In addition to the legal battle, the defamation case shed light on the clandestine operations and internal dynamics of Australia's elite special forces. Testimonies during the trial revealed a "code of silence" within the regiment, which discouraged the reporting of potential misconduct. Soldiers came forward to express that their actions, which were subject to scrutiny, were often deemed necessary under the circumstances.
It is worth noting that many witnesses were compelled to testify through subpoenas and did so unwillingly. Furthermore, three individuals refused to provide details regarding certain allegations, citing concerns about potential self-incrimination. These aspects of the trial underscored the complexities and challenges of unearthing the truth within a secretive and tightly-knit military environment.
A significant portion of the evidence presented against Ben Roberts-Smith in the defamation case relied on eyewitness testimonies and recollections of conversations among soldiers. Justice Besanko was tasked with assessing the credibility and reliability of these witnesses, often having to weigh their testimonies against each other. The media outlets involved in the case maintained that their reporting was based on truthful accounts and argued that their witnesses had no motive to fabricate or misrepresent the facts.
Following the judgment, the news outlets expressed their satisfaction, referring to the decision as a "vindication" of their reporting. This outcome highlights the complex nature of evaluating witness testimonies and the role they played in shaping the case.
According to investigative reporter Nick McKenzie, who wrote the stories alongside Chris Masters and David Wroe:
It's a day of justice for the brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully and a liar. [And] today is a day of some small justice for the Afghan victims of Ben Roberts-Smith.- Investigative reporter Nick McKenzie
The Afghanistan Human Rights and Democracy Organisation commended the crucial role played by investigative journalism in "unearthing the truth and fostering public awareness" regarding the events that transpired in Afghanistan. They acknowledged the significant impact of media reporting in shedding light on the situation.
Meanwhile, Kerry Stokes, a media magnate who employs Ben Roberts-Smith at Seven West Media, expressed his disagreement with the judgment, asserting that it did not align with his personal perception of Roberts-Smith as an individual. Stokes' statement underscores the complexity of reconciling public perceptions with the outcome of a legal case involving a person known personally to others.
Mr. Kerry Stokes, who provided financial assistance to Ben Roberts-Smith for his legal case, acknowledged the emotional difficulty of the situation for Roberts-Smith, as he has consistently maintained his innocence. Reports in local media suggested that Roberts-Smith had even offered to use his Victoria Cross as collateral in securing the loan from Stokes.
The defamation case against Ben Roberts-Smith emerges three years following a significant report that substantiated credible evidence of unlawful killings committed by Australian forces in Afghanistan between 2007 and 2013, involving the deaths of 39 civilians and prisoners. This report exposed a troubling chapter in Australia's military involvement in the region.
Similar accusations of war crimes have also been leveled against soldiers from the United Kingdom and the United States in recent years, indicating broader concerns about the conduct of international forces during the conflict.
According to local media reports, numerous Australian soldiers are currently under investigation for their alleged roles in these war crimes. However, thus far, charges have only been filed against one individual, Oliver Schulz. The ongoing investigations reflect the seriousness with which these allegations are being treated and the commitment to pursuing justice for any unlawful acts committed by Australian military personnel.
War historian Peter Stanley emphasized the significance of Ben Roberts-Smith's defamation case, stating that it served as a "litmus test" for allegations of Australian misconduct during the country's involvement in Afghanistan. The outcome of this high-profile case would likely have far-reaching implications, influencing the public perception and understanding of the allegations of wrongdoing by Australian forces in Afghanistan.


The case held substantial weight in terms of assessing the credibility and accountability of the military's actions, potentially setting a precedent for future investigations and discussions regarding Australia's role in the conflict.
"The Ben Roberts-Smith episode is just a precursor to the major series of war crimes investigations, allegations, prosecutions, and possibly convictions that we'll see over the next few years."
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