Australia Braces for Landmark Judgment in War Crimes’ Defamation Case
In a case that has captivated the nation, Australia awaits judgment in a high-stakes defamation lawsuit filed by Ben Roberts-Smith, the country’s most decorated living soldier. On Thursday afternoon, Judge Anthony Besanko will deliver his decision in Sydney’s Federal Court, concluding a lengthy legal battle that has spanned 110 days of hearings. The case centers around allegations of war crimes and the portrayal of Roberts-Smith as a criminal who violated the moral and legal principles of military engagement during his service in Afghanistan.
Born in Perth in 1978, Ben Roberts-Smith enlisted in the Australian Army at the tender age of 18, eventually joining the prestigious Special Air Service Regiment (SASR) in 2003. Over the course of his military career, he completed multiple tours in Afghanistan, during which he demonstrated extraordinary bravery and was awarded the Victoria Cross, Australia’s highest military honor. Following his retirement from the armed forces a decade ago, Roberts-Smith pursued a degree in business and transitioned into the media industry as a motivational speaker and member of the Seven Network media group.
The defamation case arose in 2018 when several prominent Australian newspapers, including The Sydney Morning Herald, The Age, and The Canberra Times, published articles accusing Roberts-Smith of war crimes and various forms of misconduct. The reports alleged his involvement in the killing of Afghan civilians, bullying of fellow soldiers, and physical abuse of a former lover. In response, Roberts-Smith sued the newspapers for defamation, contending that the articles had damaged his reputation and depicted him as a criminal who had violated the moral and legal rules of military engagement, thus bringing disgrace upon his country and the Australian army.
Throughout the protracted legal proceedings, which were further delayed by the COVID-19 pandemic, more than 40 witnesses provided testimonies. The cost of the trial is estimated to have reached a staggering 25 million Australian dollars ($16.3m). Roberts-Smith maintained an enigmatic presence in the courtroom, often described as “masked and unreadable” or an “impassive observer.” Witnesses, including current and former soldiers, as well as Afghan civilians, recounted detailed testimonies of his alleged brutality.
The crux of the case revolves around the “truth” defense pursued by The Sydney Morning Herald and The Age. The newspapers have had to prove to the judge that the allegations they published about Roberts-Smith’s conduct were true based on a balance of probabilities. This has effectively transformed the trial into a de facto war crimes trial, shining a spotlight on the Geneva Conventions and Australia’s adherence to these international standards. The defense argued that the alleged incidents were lawful, justifiable actions in the context of warfare, while the prosecution highlighted the gravity of the accusations and their impact on Roberts-Smith’s reputation.
Thursday’s judgment arrives amid increased scrutiny of Australia’s military operations in Afghanistan. The landmark Brereton report, released in 2020, revealed “credible evidence” of unlawful killings committed by members of the special forces. Although no individuals were named in the report, it recommended the investigation of 19 current or former soldiers over 23 incidents involving the deaths of “prisoners, farmers, or civilians” between 2009 and 2013. In a significant development, the Office of the Special Investigator (OSI) recently charged a former soldier with murder—an unprecedented move that marks the first time a serving or former member of the Australian military faces such charges.
As the nation awaits the judge’s decision, the outcome of the defamation case against Ben Roberts-Smith holds significant implications for both the involved parties and the broader public. The ruling will shape the narrative surrounding allegations of war crimes, the limits of media reporting, and the accountability of individuals entrusted with protecting national security. Whatever the judgment, Australia’s legal landscape and public perception of its military will undoubtedly be forever altered.