Australia has taken the unprecedented step of charging Ben Roberts-Smith, once celebrated as the country’s most decorated living soldier, with five counts of war crime murder over alleged killings in Afghanistan. The move shifts years of allegation, inquiry and defamation litigation into the criminal courts, where the former Special Air Service corporal now faces the possibility of a life sentence.
The case forces Australia to confront what was done in its name during the long war in Afghanistan and to test whether its institutions can hold one of its most lionised veterans to account.
What happened
Federal police arrested Ben Roberts-Smith in Queensland after a joint investigation with the Office of the Special Investigator into alleged unlawful killings by Australian special forces in Afghanistan. Prosecutors have charged him with five counts of war crime murder, each linked to separate incidents in Uruzgan province during his deployments with the Special Air Service Regiment.
The charges follow years of work triggered by the Brereton inquiry, which found credible evidence that Australian special forces unlawfully killed 39 Afghans and recommended further criminal investigation of 19 individuals. That process has now crystallised into a specific indictment against the soldier who once embodied the Anzac legend for many Australians.
According to a detailed legal analysis, the five counts are framed as war crimes under Australian law, which incorporates obligations from the Rome Statute and Geneva Conventions into domestic criminal offences. As described in legal commentary, the prosecution will have to prove that each killing involved a protected person, that the victim was not a lawful target, and that Roberts-Smith either pulled the trigger or was criminally responsible as a commander or participant.
Roberts-Smith has consistently denied any unlawful conduct in Afghanistan. In a high profile defamation case he brought against three newspapers, the Federal Court found that allegations he was involved in four unlawful killings were substantially true, but that was a civil standard of proof and did not involve criminal charges or the specific war crime offences now alleged.
The arrest has also shaken parts of Australia’s business and political elite. Mining billionaire Gina Rinehart, who had previously sponsored Roberts-Smith and supported his legal battles, publicly addressed the charges through a statement reported after his appearance in court. In that statement, she acknowledged the seriousness of the alleged war crime counts while also expressing concern for Australian soldiers who served in Afghanistan.
For the Australian Defence Force, the case lands on already raw terrain. Roberts-Smith was awarded the Victoria Cross for Australia and the Medal for Gallantry for his actions in Afghanistan, and for years was presented as a model soldier in official ceremonies and recruitment campaigns. Coverage of his detention has repeatedly described him as Australia’s most decorated, a status that now sits in stark tension with the allegations he faces.
The criminal case is expected to rely heavily on testimony from former comrades, Afghan witnesses and battlefield data, including patrol reports and imagery. Many of those elements were first gathered during internal defence inquiries and the Brereton process, then revisited by federal investigators with a view to criminal prosecution.
Why it matters
The decision to prosecute a Victoria Cross recipient for war crimes is a watershed for Australia’s military culture and its legal system. It tests whether the same apparatus that celebrated Roberts-Smith can now subject him to the full scrutiny of criminal law without fear or favour.
For Afghan families, the case is about long delayed justice. One report has highlighted a mother and her seven children in Afghanistan who have waited 17 years for accountability over the alleged killing of her husband, an incident now linked to the charges against Roberts-Smith. Their story, set against the slow grind of Australian investigations, captures how long the alleged victims of special forces operations have lived with loss and uncertainty while they await justice for alleged by Australian soldiers.
At home, the case forces a reckoning with how the country mythologised the Afghanistan war. For years, Roberts-Smith was a fixture at Anzac Day events, corporate functions and motivational speaking circuits, framed as the personification of courage and sacrifice. The criminal charges invite hard questions about how institutions responded to early allegations and whether a culture of hero worship discouraged whistleblowers inside the Special Air Service Regiment.
The prosecution also carries legal and evidentiary challenges that go beyond one man. A detailed examination of the case has pointed out that war crimes trials must reconstruct split second battlefield decisions many years after the fact, often in environments where physical evidence is sparse and witnesses are traumatised or dispersed. Prosecutors will need to persuade a jury, beyond reasonable doubt, that each killing was unlawful and that Roberts-Smith bears individual criminal responsibility, despite the fog of combat and the passage of time, a task that legal analysts expect to be extremely challenging.
The case also intersects with the earlier defamation trial in complex ways. In that civil case, the court found that on the balance of probabilities Roberts-Smith was involved in unlawful killings and bullying of fellow soldiers, which severely damaged his public reputation. Criminal prosecutors, however, cannot simply rely on those findings. They must build a fresh case that meets the criminal standard, while defence lawyers are expected to argue that media coverage and prior judgments have prejudiced potential jurors.
For the Australian Defence Force and the government, the prosecution sends a signal to allies and adversaries alike about how the country handles allegations against its own troops. Australia has positioned itself as a supporter of international humanitarian law and the rules based order. Bringing war crime charges against a national hero aligns with those commitments, but any perception of a flawed or politicised trial could damage that credibility.
Within the veteran community, reactions are sharply divided. Some former soldiers see the case as a betrayal of a man they regard as a battlefield leader who made hard choices under fire. Others, including whistleblowers who spoke to the Brereton inquiry, view the charges as overdue accountability that may help restore the honour of units tainted by allegations of unlawful killings.
What to watch next
The next phase will be dominated by pre trial legal arguments that could shape the entire proceeding. Defence lawyers are likely to challenge the admissibility of key evidence, including statements from former comrades who may seek anonymity or protection, and to argue that some material is covered by national security restrictions that limit what can be aired in open court.
Another significant issue will be how the court handles overlap between the criminal case and the earlier defamation judgment. Media law specialists have warned that jurors might be influenced, consciously or not, by the previous civil findings. Courts may respond with careful jury selection, strict directions about ignoring prior publicity, and possibly orders that limit how past judgments are discussed in front of the jury, concerns that have been flagged in commentary about defamation crossover issues.
The prosecution timeline will also be closely watched. War crimes cases are notoriously slow, and this one involves overseas witnesses, classified material and events that occurred in remote Afghan villages more than a decade ago. Afghan civilians, Australian veterans and the broader public may face years of hearings and appeals before any final verdict.
Internationally, the case will be read as a test of how national courts handle alleged atrocities by their own forces. If the prosecution is seen as serious and fair, it may bolster arguments that domestic legal systems can deal with such allegations without intervention from bodies like the International Criminal Court. If it falters, critics of the Afghanistan mission and of Western militaries more broadly will point to it as evidence of impunity.
Inside Australia, political leaders will have to navigate the case without appearing to interfere. Governments of both major parties backed the Afghanistan deployment and celebrated Roberts-Smith during his service. They now face pressure from veterans, human rights advocates and Afghan diaspora groups, each with different expectations about what justice should look like.