Ben Roberts-Smith defamation case ends in victory for Australian newspapers

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SYDNEY — Australia’s most decorated living soldier lost a high-profile defamation complaint against three of the country’s top newspapers Thursday, with a judge deeming they had proved that Ben Roberts-Smith killed unarmed prisoners while deployed in Afghanistan.

The decision was a dramatic end to a case that spanned more than 100 days of often startling testimony, cost more than $15 million and raised fresh allegations of atrocities committed by Australian special forces in Afghanistan.

The judgment was a major victory for the Sydney Morning Herald, the Age and the Canberra Times — and, said experts, for Australian journalism and the public interest. It was also welcomed by advocates for Afghan victims, who said survivors and victims’ families deserved to know the truth.

Roberts-Smith — a retired corporal in the Special Air Service, or SAS — was not in the Sydney courtroom where Justice Anthony Besanko said the newspapers had established the truth of their claims. A summary of his decision was posted online, with the full judgment delayed until Monday so the government could review it for sensitive information that might affect national security.

But in his summary, Besanko said he found it to be substantially true, as per the newspapers’ reports, that Roberts-Smith:

  • Murdered an unarmed man by kicking him off a cliff and ordering soldiers to shoot him.
  • Committed murder by pressuring a newly deployed and inexperienced SAS soldier to execute an elderly, unarmed Afghan to “blood the rookie.”
  • Committed murder by machine-gunning a man with a prosthetic leg.
  • Was so callous and inhumane that he took the prosthetic leg back to Australia and encouraged other soldiers to use it as a novelty beer-drinking vessel.
  • Authorized the execution of an unarmed Afghan by a junior trooper.
  • Assaulted three unarmed Afghan men on separate occasions.
  • Bullied a fellow soldier with threats of violence.
  • Broke the moral and legal rules of military engagement.
  • Disgraced his country and the Australian army by his conduct.

Roberts-Smith did not release a statement after Thursday’s judgment. Arthur Moses, his lawyer, was tight-lipped when journalists outside the courtroom asked about his client’s reaction or why he did not attend. “We will consider the lengthy judgment that his honor has delivered and look at issues relating to an appeal,” Moses said.

Under Australian law, Roberts-Smith is now responsible for all parties’ legal costs.

The 6-foot-8-inch soldier shot to fame in 2011 when he was awarded the Victoria Cross for Australia — the country’s highest military honor — for almost single-handedly saving fellow troops after they had been pinned down by Taliban machine gun fire during a 2010 operation.

The medal was followed by additional accolades, including lucrative speaking engagements, two portraits in the Australian War Memorial and the Father of the Year title in 2013. The 44-year-old attended the funeral of Queen Elizabeth II last year, after the palace extended an invitation to Victoria Cross and George Cross recipients across the Commonwealth.

In the minds of some Australians, Roberts-Smith embodied the values of courage and sacrifice set by Australian soldiers since World War I.

He epitomized the idea of the “perfect soldier,” said John Blaxland, a professor of international security and intelligence studies at the Australian National University and a former Australian army officer. “Tough, resilient, sharp, intellectually capable, who can take whatever is thrown his way and still get the round on target and come home in time for tea and medals.”

But that myth began to unravel in 2018, when the three newspapers reported that Roberts-Smith had been involved in the killing of six prisoners while on duty in Afghanistan between 2009 and 2012, and detailed the other abuses.

Roberts-Smith called the allegations “a catalogue of lies, fabrications and misrepresentations” and sued the newspapers for what he said was falsely portraying him as a war criminal.

In a nation that prides itself on its outsize service in overseas wars, the case quickly assumed its own outsize symbolism. It pitted a towering war hero, who claimed he was the victim of jealous colleagues, against some of the nation’s top investigative journalists, who argued in court that their reporting was accurate.

That legal defense transformed the defamation proceedings into a de facto war crimes trial, as more than three dozen witnesses testified about killings that occurred more than a decade ago on the other side of the world.

Defamation laws are far stricter in Australia than in the United States, where public figures must prove actual malice on the part of news media, noted David Rolph, a law professor at the University of Sydney. A law passed in 2021 enables media in much of Australia to defend themselves by arguing that what they publish is in the public interest, but the change came too late for this case, he said.

“Because truth is the only defense here, rather than picking over what the journalists did, the focus of the trial has been on whether he did it or not,” Rolph said.

That meant that Roberts-Smith sat through months of civil testimony that often felt like a criminal trial.

The Afghanistan Papers: A secret history of the war

A junior member of his patrol testified, for example, about the man being kicked off the cliff and shot — a claim backed up by three Afghans who appeared in court remotely. But Roberts-Smith and another soldier denied that version of events, and instead said the man was a Taliban scout who had been lawfully killed.

Roberts-Smith similarly denied wrongdoing in four other killings and claimed a sixth never occurred.

In closing arguments, Roberts-Smith’s attorney sought to remind the court that his client was not in the defendant’s box.

At times the proceedings threatened to tarnish Roberts-Smith further by raising new allegations.

His ex-wife accused him of burying evidence in a child’s lunchbox in their backyard, including USB drives with classified information and photos of soldiers drinking out of a prosthetic leg. Roberts-Smith denied burying the USB drives or withholding information, but he acknowledged possessing them. He admitted to burning a laptop with gasoline but denied it was to conceal evidence.

Perhaps most shocking, a friend of Roberts-Smith claimed there were three more alleged killings to which the soldier had been linked.

Roberts-Smith has not been charged with a crime, but Australian media have reported that he is one of three SAS soldiers who are the focus of an ongoing investigation by the Office of the Special Investigator, which was created in the wake of a scathing 2020 report by the inspector general of the Australian Defense Force that found Australian special forces had committed war crimes in Afghanistan.

In March, an SAS soldier was arrested and charged with “war crime — murder” for allegedly fatally shooting an unarmed Afghan in a wheat field in 2012. It is the first case of its kind, authorities said.

On Wednesday, the head of the ADF told lawmakers that the United States has warned it may suspend cooperation with Australian special forces because of the mounting war crimes concerns.

Australia discovered that its special forces committed war crimes in Afghanistan

For some Afghans, Thursday’s decision was a rare opportunity to shed light on allegations of wrongdoing by U.S. coalition forces during the two-decade conflict, which ended in 2021 when the Taliban regained control of the country.

“Survivors and victims’ families have a right to full disclosure of the truth and acknowledgment of the harm caused by Australia’s military operations,” said Hadi Marifat, the executive director at the Afghanistan Human Rights and Democracy Organization.

“Investigative journalism has been critical in uncovering the truth and raising public awareness about what took place. Australia’s response must be receptive to the needs and priorities of victims,” he said in a statement sent to local media.

The media outlets hailed the decision as a “critical step towards justice” for families of the Afghan villagers and a “vindication for journalists.”

Nick McKenzie, one of the victorious journalists, demurred when asked outside the courthouse what should happen to Roberts-Smith’s medals. “What is clear,” he said, “is that Ben Roberts-Smith is a liar.”

Ben Mckelvey, a journalist who has written a book about Australian special forces operations in Afghanistan, said the defamation trial had provided a valuable window into the hazy rules governing the U.S.-led “kill/capture” program, which was supposed to only target Taliban leaders but soon consumed the SAS’s time.

Australia needs to launch a royal commission — akin to a U.S. congressional inquiry — to understand whether commanding officers or politicians knew about or even condoned the alleged war crimes, he said.

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