A highly decorated Australian soldier who received his country’s highest military honors will remain in custody after choosing not to seek bail on war crimes charges stemming from his service in Afghanistan.
Ben Roberts-Smith, recipient of both the Victoria Cross and Medal of Gallantry, appeared before a Sydney court Wednesday where he faces serious allegations related to the deaths of Afghan civilians. The 47-year-old veteran becomes just the second Australian Afghanistan war veteran to face war crimes prosecution.
The charges stem from a comprehensive military investigation completed in 2020 that uncovered evidence suggesting elite Australian Special Air Service and commando units illegally killed 39 Afghan prisoners, farmers and other civilians. During Australia’s 20-year involvement in Afghanistan from 2001 to 2021, approximately 40,000 military personnel served there, with 41 losing their lives.
Roberts-Smith faces accusations connected to five Afghan deaths that occurred during 2009 and 2012 while he served as an elite SAS corporal. Authorities claim he either directly shot the victims or commanded subordinates to carry out the killings.
Initially announced as five war crime murder charges on Tuesday, the formal court filing Wednesday specified two counts of war crime murder and three counts of assisting or encouraging war crime murder. Each charge potentially carries a life imprisonment sentence.
Under Australian law, war crime murder involves the deliberate killing during armed conflict of individuals not actively participating in combat, including civilians, prisoners of war, or wounded soldiers.
Roberts-Smith spent Tuesday night in custody after his arrest at Sydney Airport that morning. He did not make a court appearance either physically or through video connection Wednesday.
His legal team declined to enter plea agreements or request bail release. Court proceedings have been postponed until June 4.
These criminal charges follow a civil court ruling that found comparable accusations against Roberts-Smith credible. In a defamation lawsuit he initiated after 2018 newspaper reports accused him of various war crimes, a federal judge in 2023 dismissed Roberts-Smith’s claims and determined he likely unlawfully killed four noncombatants during 2009 and 2012.
However, while the civil court determined war crimes allegations were substantially proven based on probability balance, criminal court conviction requires proof beyond reasonable doubt, a significantly higher legal standard.
Roberts-Smith joins former SAS soldier Oliver Schulz as the second Australian Afghanistan veteran facing war crimes prosecution. Schulz has entered a not guilty plea to war crime murder charges for allegedly shooting Afghan civilian Dad Mohammad three times in the head in an Uruzgan province wheat field during 2012.
Legal representatives indicate Schulz’s trial likely won’t commence before 2027.
