Former Special Air Service soldier Ben Roberts-Smith has publicly criticised recent changes to Australia’s war crime laws, questioning whether he can receive a fair trial as he faces criminal charges related to events during his deployments in Afghanistan. The Victoria Cross recipient, Australia’s most decorated living soldier, is charged with five counts of war crime murder for alleged actions between 2009 and 2012 involving unarmed Afghan civilians and prisoners.
Roberts-Smith, who served six tours in Afghanistan from 2006 to 2012, spoke at length in two recent interviews addressing the legal and political context surrounding his prosecution. He condemned amendments introduced in 2024 by then attorney-general Mark Dreyfus, which lowered the threshold for defining when a combatant is considered “hors de combat” — a status that exempts individuals from attack under international law after capture or surrender. Whereas the original law required meeting three specific criteria to qualify as out of combat, the change reduced this to just one criterion. The government has maintained that the revisions align Australian law more closely with international standards. However, the amendments took effect retroactively, during ongoing investigations and prosecutions of Roberts-Smith and another former SAS member, Oliver Schulz.
Roberts-Smith characterised the timing and nature of the law changes as unfair and undermining the prospect of an impartial trial. He argued that applying new legal standards retrospectively shifted the burden of proof in favour of the prosecution, challenging the principles under which he operated while deployed. “Why did you do that after you’ve already started prosecuting someone, and there were all these other allegations being investigated?” he said in one interview. “Why are you tipping the scales so much in your favour and making it so hard for us to have a fair fight?”
He also criticised a federal compensation scheme established to assist families of Afghan war crime victims, describing it as a “very dangerous mistake” for potentially prejudging legal outcomes, though no payments have yet been made through the program.
Roberts-Smith spoke candidly about his arrest in April at Sydney Airport, where Australian Federal Police detained him publicly on the tarmac, an event he described as deliberately staged to tarnish his image. He expressed deep personal distress over the manner of the arrest, which occurred in front of his wife and children, and said it served a political agenda intended to distract from broader issues related to the Afghan campaign.
Reflecting on his six tours in Afghanistan, Roberts-Smith suggested the Australian Defence Force (ADF) exploited soldiers’ willingness to serve by limiting their rest periods, acknowledging the significant physical and psychological toll of repeated deployments in a high-risk environment.
His interviews also touched on the defamation case he lost against several media organisations, a civil battle he now views as a misjudgment due to overconfidence, which exposed him to damaging testimony from former comrades. Some of those who have testified against him reportedly received immunity from prosecution for alleged crimes in exchange for their cooperation.
Since his arrest, Roberts-Smith has launched a commercial brand featuring apparel and supplements, framing it as part of a broader effort to regain control over his narrative and finance his legal defense, which has reportedly cost tens of millions of dollars.
The media campaign follows a period of political turbulence in Australia marked by rising nationalist sentiment and skepticism toward government institutions. Roberts-Smith has garnered support from figures such as Pauline Hanson and billionaire Gina Rinehart, as well as grassroots sympathisers across the country.
While Roberts-Smith expressed uncertainty about the possibility of an unbiased jury due to extensive media coverage and public opinion, he said he remains hopeful in the justice system despite the challenges ahead. The legal proceedings against him are expected to be protracted, with his team contemplating possible motions to pause the trial on the basis of prejudice and fair trial concerns.