Australia’s most decorated soldier, Ben Roberts-Smith, has been arrested and charged with five counts of war crime, murder, in relation to three alleged incidents during the Afghanistan conflict. Today, he has been released on bail.
The charges mark a significant moment in a process that began years earlier, when Afghan families first brought their accounts to journalists who were willing to listen.
What Are The Charges Against Ben Roberts-Smith?
Roberts-Smith faces five counts under Australian federal law relating to the alleged unlawful killing of Afghan nationals. He has maintained his innocence. As with any person facing criminal charges in Australia, he is entitled to the presumption of innocence and to mount a full defence. The matter will be tested before a court.
What Did The Brereton Report Find On Ben Roberts-Smith And The Other Killings?
The Inspector-General of the Australian Defence Force Afghanistan Inquiry, known as the Brereton Report, was released in 2020 after a four-year investigation. It found credible evidence of 39 alleged unlawful killings of Afghan nationals by Australian special forces personnel, none of whom were combatants. The report’s findings prompted widespread coverage by the ABC and led to the establishment of the Office of the Special Investigator to assess potential criminal referrals.
Why Has The Ben Roberts-Smith Case Taken So Long?
For many Afghan families, the allegations were not news. They had been carrying these accounts for years, shared quietly between families in Uruzgan province, with little access to media or legal channels through which to be heard. It was only after journalists gave space to those voices that the allegations entered public debate in Australia. The gap between what those communities experienced and when accountability began is itself part of the story.
Justice delayed is not justice denied, but delay has real costs for those waiting. The legal process, however slow, remains the appropriate mechanism for testing serious allegations against a fair standard of proof.
What Does This Mean For Accountability?
The Roberts-Smith prosecution is rare in the context of modern warfare. Few countries have pursued criminal charges against their own special forces personnel for conduct during active conflict.
Whatever the outcome, the willingness to subject these allegations to the scrutiny of an open court matters. At O’Brien Criminal & Civil Solicitors, we have long understood that accountability, whether for police officers who abuse their position, or for conduct during war, requires a legal process that is rigorous, fair, and open to challenge.
If you have questions about accountability matters, contact our Sydney office for a confidential discussion.
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Peter O'Brien is the Principal Solicitor of O'Brien Criminal & Civil Solicitors and Australia's leading expert in intentional torts litigation, with over 25 years of experience securing landmark victories in malicious prosecution and unlawful imprisonment cases. Author of Intentional Tort Litigation in Australia and recipient of the Law Council of Australia President's Medal, Peter has achieved record-breaking compensation for clients and is widely recognised for his unwavering commitment to access to justice.
