Former Australian special forces soldier Ben Roberts-Smith was granted bail on Friday after spending 10 days in custody on war crimes charges related to his service in Afghanistan.
The 47-year-old Victoria Cross recipient appeared via video link from prison, wearing a green tracksuit, as a Sydney judge ruled he could be released while awaiting trial on allegations he murdered five Afghan civilians between 2009 and 2012. Roberts-Smith denies all charges, maintaining his innocence despite prior civil findings that many of the allegations against him were “substantially true”.
Australian Federal Police Commissioner Krissy Barrett stated that prosecutors will allege the victims were not participating in hostilities at the time of their deaths and were either shot by Roberts-Smith himself or by subordinates acting under his orders and in his presence. The prosecution argued the gravity of the alleged crimes justified strict bail conditions, while the defence countered that prolonged pre-trial detention was unjustifiable as the case progresses slowly through the courts.
Roberts-Smith, once celebrated as a national war hero and named Australia’s “father of the year,” saw his reputation unravel after 2018 media reports detailed allegations including the kicking of an unarmed Afghan civilian off a cliff and the use of a prosthetic limb from a victim as a drinking vessel. He sued the newspapers involved, but a 2023 judge ruled in favour of the journalists, noting the civil standard of proof is lower than that required in criminal proceedings.
The case underscores the lasting legal and moral reckoning over Australia’s conduct during its deployment of 39,000 troops to Afghanistan over two decades as part of US and NATO-led operations. A conviction could result in a life sentence.
What the bail decision reveals about the tension between military prestige and judicial scrutiny
The judge’s remark that Roberts-Smith would face “years and years” in prison before trial highlights the extraordinary delay in bringing these allegations to court, despite the seriousness of the charges. This gap between accusation and trial has become a focal point for both sides: the defence cites it as grounds for bail, while prosecutors stress it does not diminish the severity of the alleged offences.
Roberts-Smith’s status as a decorated veteran complicates the proceedings, echoing broader challenges in holding elite military personnel accountable for actions in conflict zones. His legal team’s argument that incarceration during lengthy pre-trial periods is unacceptable contrasts with the prosecution’s stance that the nature of the alleged crimes — involving civilian deaths and command responsibility — demands rigorous oversight, even before trial.
The contrast between his public image as a national symbol of bravery and the specific, grave allegations now under judicial examination illustrates how institutional reputations can persist long after factual disputes emerge in legal forums. The bail decision does not prejudice guilt or innocence but reflects a judicial balancing act between liberty interests and public confidence in the justice system’s handling of war crimes allegations.
How the 2023 civil ruling shapes the criminal case ahead
The 2023 Federal Court finding that many of the journalists’ claims were “substantially true” remains a pivotal precedent, though it operates under a different legal threshold than the criminal trial Roberts-Smith now faces. In civil defamation proceedings, the burden of proof lies on the plaintiff to show harm, whereas criminal war crimes charges require proof beyond reasonable doubt.
Nevertheless, the earlier judgment established a factual foundation that prosecutors may seek to build upon, particularly regarding patterns of conduct and command climate within Roberts-Smith’s unit. The civil case also exposed details — such as the alleged cliff-kicking and prosthetic limb incidents — that have entered the public record and informed the specific charges now being tested in criminal court.
His legal team’s decision to sue the newspapers ultimately backfired, amplifying rather than silencing the allegations and providing a documented trail of judicial scrutiny that now informs the criminal proceedings. This procedural history means the trial will not begin with a clean slate but within a context where significant aspects of the narrative have already been tested, albeit under a lower standard of proof.
Why the case continues to resonate beyond the courtroom
The Roberts-Smith proceedings occur against a backdrop of ongoing scrutiny into Australia’s role in Afghanistan, including the release of the Brereton Report in 2020, which found credible evidence of unlawful killings by special forces personnel. While this case focuses on one individual, it has become a proxy for broader questions about command culture, accountability, and the treatment of detainees in asymmetric warfare.
Internationally, the trial aligns with efforts to address impunity for alleged war crimes, even as national security narratives often complicate such pursuits. Domestically, it challenges the tendency to equate military service with moral infallibility, forcing a confrontation between honouring sacrifice and examining potential misconduct.
The fact that a former Victoria Cross recipient is facing life imprisonment over alleged civilian murders underscores how even the most decorated soldiers are not immune to legal process when allegations of serious criminal conduct arise. Whether the court ultimately finds him guilty or not, the trial will contribute to the historical record of how Australia confronts the complexities of its recent military history.
What specific actions is Roberts-Smith accused of in Afghanistan?
He is charged with murdering five Afghan civilians between 2009 and 2012, with prosecutors alleging the victims were not taking part in hostilities and were either shot by Roberts-Smith or by subordinates acting under his orders and in his presence.
Additional allegations, which emerged in prior civil proceedings, include kicking an unarmed Afghan civilian off a cliff and ordering his shooting, as well as participating in the machine-gunning of a man with a prosthetic limb that was later used as a drinking vessel.
How does this criminal case differ from the 2023 civil defamation case he lost?
The civil case involved Roberts-Smith suing newspapers for defamation over war crimes allegations, which he lost when a judge found many of the claims were “substantially true” — a lower burden of proof than required in criminal court.
The current proceeding is a criminal prosecution where the state must prove guilt beyond reasonable doubt, and a conviction could result in a life sentence, whereas the civil case only involved financial damages and reputational findings.