Ben Roberts-Smith, a Victoria Cross recipient, is currently facing five war crimes charges, a case that has drawn significant public and media attention. Last week, Roberts-Smith engaged in a high-profile public relations campaign, appearing in various media outlets to assert his innocence and to appeal for a fair trial. His supporters, including billionaire Gina Rinehart and Senator Pauline Hanson of the One Nation party, have publicly defended him, while critics have raised concerns about attempts to influence public opinion ahead of the trial.
Roberts-Smith’s legal team and supporters have characterized the charges as part of a politically motivated effort, with some alleging that the Albanese government retrospectively altered war crimes legislation to make conviction easier. However, legal observers note that the 2024 amendments to the war crimes laws were passed with bipartisan support, including from the Coalition, and were intended to correct a drafting error dating back to legislation enacted in 2002 under the Howard government. That original amendment sought to align Australian law with International Criminal Court (ICC) standards, but wording issues led to ambiguity regarding when the use of lethal force against prisoners could be justified.
At the heart of the allegations are incidents involving the deaths of two Afghan men during SAS operations. Witnesses, including current and former Australian soldiers who testified in previous civil cases, have provided evidence describing the victims as unarmed and restrained before being shot, contradicting claims that the killings occurred amidst the chaos of battle. Four federal court judges previously accepted this testimony as credible on the balance of probabilities. Roberts-Smith’s defenders argue the events took place in the “fog of war,” but critics stress the need to distinguish legitimate combat actions from unlawful killings.
The case is notable for the division it has exposed within Australia’s military and political spheres. Some veterans and politicians have expressed frustration over the public criticism of soldiers involved and the portrayal of Roberts-Smith, while others emphasize the importance of accountability and the rule of law irrespective of past service. One of the soldiers who testified against Roberts-Smith, Andrew Hastie, a Liberal frontbencher, has been targeted by some supporters of Roberts-Smith, who have labeled him a “traitor.”
Legal experts emphasize that the criminal trial will require the prosecution to prove the charges beyond a reasonable doubt. Until then, Roberts-Smith is entitled to the presumption of innocence. The outcome will depend on the jury’s assessment of contested facts and interpretations of the law, including the recent amendments addressing war crimes. The high-profile nature of the case, combined with the extensive media coverage and lobbying efforts, underscores the challenges of maintaining impartiality and ensuring justice in matters involving allegations of military misconduct.