The Victoria Cross and the War Crime: Ben Roberts-Smith's Bail and Australia's Reckoning With Afghanistan

On 17 April 2026, a Sydney courtroom delivered a scene that crystallised a contradiction at the heart of Australia's military identity. Ben Roberts-Smith — recipient of the Victoria Cross, the nation's highest military honour — walked free on bail after spending ten days in custody on five counts of war crime murder [1][2]. The charges allege he killed, or ordered the killing of, five unarmed Afghan civilians between 2009 and 2012, during deployments with the elite Special Air Service Regiment (SASR) in Uruzgan Province, Afghanistan [3][4].

The case is the most consequential prosecution to emerge from the Brereton Report, a landmark 2020 military inquiry that found credible evidence of 39 unlawful killings by Australian special forces [5]. Six years after that report's release, only two soldiers have been criminally charged — raising pointed questions about who faces prosecution, who does not, and whether the system meant to deliver justice is capable of doing so.

The Charges: Five Killings, Two Deployments

Roberts-Smith, 47, was arrested on 7 April 2026 and charged under Section 268.70(1) of the Commonwealth Criminal Code Act 1995 with five counts of the war crime of murder, each carrying a maximum penalty of life imprisonment [3][6].

The charges span two periods. During the Whiskey 108 mission in 2009, Roberts-Smith allegedly machine-gunned a man with a prosthetic leg who was under the control of Australian soldiers and not taking part in hostilities [4][7]. In a separate incident during the same mission, he allegedly pressured a junior, newly deployed SASR soldier to execute an elderly, unarmed Afghan man — a practice known as "blooding," in which inexperienced troops are forced to kill a prisoner to bond them to the patrol [4][7]. A third allegation from this period involves kicking an unarmed civilian off a cliff and ordering subordinates to shoot him [4].

Two further charges relate to incidents in 2012. In all five cases, prosecutors allege the victims were detained, unarmed, and under the control of Australian Defence Force (ADF) members when they were killed [6]. The Commonwealth Director of Public Prosecutions stated that the victims were "shot by the accused or shot by subordinate members of the ADF in the presence of and acting on the orders of the accused" [6].

From Civil Judgment to Criminal Prosecution

The criminal charges did not emerge from a vacuum. In June 2023, Federal Court Justice Anthony Besanko delivered a 726-page judgment in a defamation case Roberts-Smith had brought against three newspapers — The Sydney Morning Herald, The Age, and The Canberra Times [8][9]. Roberts-Smith had sued over articles alleging he committed war crimes. He lost. Justice Besanko found that four murder allegations had been proven on the balance of probabilities, the civil standard of proof [8][9]. In February 2024, Roberts-Smith lost his appeal, with the Full Federal Court upholding the original findings [10].

But civil and criminal standards are sharply different. The Briginshaw principle, applied in the defamation case, required evidence stronger than the norm for civil matters, given the gravity of the allegations — but it remains below the criminal threshold of beyond reasonable doubt [8][9].

What new evidence has the prosecution marshalled? Court documents revealed during the bail hearing indicate that the Office of the Special Investigator (OSI) and the Australian Federal Police secured a significant breakthrough: immunity deals with at least four former SASR soldiers who admitted to participating in the killings [11]. These witnesses have provided written statements describing executions they say they carried out at Roberts-Smith's direction or with his complicity [11][12]. Prosecutors told the court that at least one eyewitness was present for each killing, and that forensic evidence shows marks on victims' wrists indicating they were handcuffed before death [11]. The prosecution characterised this as "a strong prosecution case" [11].

The delay between the defamation verdict and criminal charges — roughly three years — reflects the difficulty of investigating alleged crimes committed in a war zone 9,000 kilometres from Australia, in a country now governed by the Taliban and inaccessible to investigators [13]. The OSI cannot visit crime scenes, and locating Afghan witnesses has required international cooperation that moves slowly [13].

The Bail Decision

Judge Greg Grogin granted bail on 17 April 2026, ruling that Roberts-Smith had established "exceptional circumstances" — the legal standard required under the Crimes Act 1914 for offences of this severity [1][2][14].

The conditions are substantial. Roberts-Smith must surrender his passport, report to police three times per week, use only one phone, refrain from using encrypted devices or applications, and have no contact with prosecution witnesses [1][14]. A surety of $250,000 must be forfeited if he breaches bail [1][14].

Prosecutors had opposed bail, arguing Roberts-Smith posed a flight risk and could interfere with witnesses or evidence [2][14]. Judge Grogin acknowledged the seriousness of the charges but said bail was "not punitive in nature" and that the accused was entitled to a presumption of innocence [14]. He concluded that the bail conditions would adequately mitigate the risks of flight and witness interference [2].

Given that Roberts-Smith retains access to veteran networks and holds considerable public profile, the ban on encrypted communications and the witness-contact prohibition are designed to address concerns about potential interference with the remaining investigations. No trial date has been set; a status hearing is scheduled for 4 June 2026, and legal observers expect the trial may be three or more years away [1][2].

The Brereton Report: 39 Deaths, 2 Charged

The Brereton Report, released in redacted form on 19 November 2020, was the product of a four-year inquiry led by Major General Paul Brereton into the conduct of Australian special forces in Afghanistan between 2005 and 2016 [5]. It found credible evidence that 39 Afghan prisoners, farmers, and civilians were unlawfully killed by, or at the instruction of, Australian special forces personnel [5]. The report identified 25 current and former ADF members as suspects across these 39 incidents [5].

In response, the Morrison government established the Office of the Special Investigator to pursue criminal investigations and 2 Squadron, SASR, was disbanded [5][15]. General Angus Campbell, Chief of the Defence Force, apologised and described a "distorted culture" within the special forces [15].

Yet the prosecution record is thin. The OSI initiated 53 investigations. Of those, 39 have been closed after the OSI concluded that "sufficient evidence of a war crime did not exist to support referring a brief to the Commonwealth Director of Public Prosecutions" [13]. Only two individuals have been charged: Oliver Schulz in March 2023 (for the killing of Dad Mohammad in 2012) and now Roberts-Smith [16][13]. Twelve investigations remain active [13].

Source: Office of the Special Investigator

Data as of Apr 17, 2026CSV

The gap between 25 suspects identified and two charges filed reflects both the evidentiary challenges of investigating decade-old killings in an inaccessible country and — critics argue — a lack of political will to pursue institutional accountability beyond individual soldiers [17][15].

How Australia Compares: War Crimes Prosecutions Across Western Nations

Australia's two prosecutions sit within a broader pattern of limited accountability across Western nations that deployed forces to Afghanistan. The United States has charged the most individuals — including the five soldiers involved in the Maywand District murders in Kandahar Province and Staff Sergeant Robert Bales, who pleaded guilty to 16 counts of premeditated murder in the 2012 Kandahar massacre and received life imprisonment [18][19]. The UK has faced its own allegations, with a BBC investigation in 2022 documenting repeated executions of detainees by British forces, though an independent inquiry remains in progress and has been limited to the 2010–2013 period [20]. Canada has prosecuted one soldier for offences in Afghanistan [18]. New Zealand has faced allegations but filed no charges [18].

Source: Reuters, HRW, public records

Data as of Apr 17, 2026CSV

Conviction rates in these cases vary. In the US Maywand District case, eleven of twelve soldiers were convicted on various counts [18]. Bales received a life sentence [18]. But acquittals are common in cases where the factual circumstances are more contested — particularly where the distinction between combatant and civilian is genuinely unclear. The US case of Navy SEAL Eddie Gallagher, charged with premeditated murder of a wounded ISIS fighter in Iraq, resulted in acquittal on the murder charge and conviction only for posing with a corpse [18].

These precedents suggest that while prosecutions are achievable, securing convictions for battlefield conduct — particularly where the prosecution relies on testimony from co-accused who received immunity — remains difficult.

Legal Framework: Command Responsibility and Evidentiary Thresholds

Roberts-Smith is not charged under a command responsibility theory; the allegations are that he directly killed victims or directly ordered subordinates to do so [6]. But the broader legal framework is relevant to understanding the case.

Under Section 268.115 of the Commonwealth Criminal Code, a military commander can be held liable for war crimes committed by forces under their effective command if they "knew, or was reckless as to whether, the forces were committing or about to commit such offences" [21][22]. The Australian standard — "reckless" — is narrower than the ICC standard of "should have known," making command responsibility harder to establish under Australian domestic law [21].

For the direct charges against Roberts-Smith, the prosecution must prove beyond reasonable doubt that the victims were "protected persons" under international humanitarian law — that is, persons not taking direct part in hostilities — and that Roberts-Smith killed them or ordered their killing with the requisite intent [6][22]. The classified nature of the rules of engagement under which SASR operated adds complexity: defence lawyers may argue that what appears in retrospect to be unlawful conduct was, in the moment, consistent with ambiguous operational orders [23].

The Afghan Victims: Recognition, Reparation, and Silence

The families of the alleged victims occupy a marginal position in these proceedings. Australia has not directly apologised to them, has not informed them about investigations or prosecutions, and has not enabled them to participate as complainants in Australian court proceedings [24][25].

After sustained advocacy by human rights organisations, the Department of Defence established a compensation scheme in October 2024, including an online form in Dari and Pashto for family members to request payments [24]. But UN human rights experts and groups including the Australian Centre for International Justice have criticised the scheme as inadequate — characterising it as "charity, at the discretion of the military, and not as a legal right of the victims under international law" [24][25]. The scheme lacks due process safeguards, clear criteria for compensation amounts, and any requirement to consult with victims about its design [24][25].

Human Rights Watch noted in May 2025 that Afghan war crimes victims were "still awaiting justice" and called for reparations that go beyond monetary payments to include rehabilitation, medical and psychological care, and guarantees of non-repetition [17].

Afghanistan remains the third-largest source of refugees globally, with 4.8 million Afghans displaced as of 2025 [26]. The families of victims killed by Australian soldiers must seek redress from a foreign government while living under Taliban rule or in diaspora — a structural disadvantage that no compensation form can overcome.

Source: UNHCR Population Data

Data as of Dec 31, 2025CSV

The Defence Position: Battlefield Judgment Under Fire

Roberts-Smith has not entered a plea, though his lawyers have indicated he will contest the charges [13]. His defence is expected to challenge the reliability of the immunity witnesses and argue that the alleged conduct occurred in the chaos of combat operations.

The broader defence position — articulated by military law scholars and veteran advocacy groups — is that prosecuting soldiers for battlefield decisions made under extreme psychological pressure, with imperfect intelligence, in a counter-insurgency environment where civilian and combatant status is genuinely contested, risks deterring the kind of aggressive action that special operations missions require [23][27].

Research from Johns Hopkins University on US Special Operations Forces (SOF) crimes found that SOF misconduct is "heavily related to pushing the boundaries of a legitimate military mission and are influenced more by SOF culture than by an individual's criminal disposition" [27]. This fits a "situationist model" in which institutional culture, rather than individual pathology, produces the conditions for unlawful conduct — an analysis that points toward systemic reform rather than individual prosecution [27].

Some commentators have argued that Roberts-Smith should not be tried in a civilian court at all, contending that military courts-martial are better suited to evaluating combat conduct [23]. Others counter that the entire point of the OSI's creation was to remove war crimes prosecution from the military chain of command, where conflicts of interest had previously prevented accountability [5][15].

The Brereton Report itself addressed this tension directly. It found that the unlawful killings were not the result of "fog of war" or split-second decisions under fire. Rather, they reflected a deliberate, premeditated pattern — what the report described as a "warrior culture" in which killing prisoners became normalised within certain SASR patrols [5][15]. General Campbell's response acknowledged that "this happened because of a failure of culture, a failure of leadership at the patrol commander level" [15].

Institutional Accountability: Who Was Not Charged

The Brereton Report recommended that no officer above the rank of patrol commander be held criminally liable, concluding that senior commanders did not know about the killings [5]. This finding has been contested. The Australia Institute and other policy organisations have questioned how systemic misconduct across multiple deployments could have escaped the notice of squadron and task group commanders [28].

The question of who was prosecuted and who was not appears to turn on a single criterion: the availability of direct eyewitness testimony linking an individual to a specific killing. The 39 investigations closed by the OSI were closed because such evidence could not be obtained — not because the allegations were disproven [13]. The immunity deals that enabled Roberts-Smith's prosecution underscore this dynamic: without cooperating witnesses willing to incriminate themselves, the evidentiary threshold for charging any individual soldier is prohibitively high [11].

This creates a troubling pattern: the soldiers most likely to be charged are those whose subordinates or peers are willing to testify against them, while those who maintained silence — or whose witnesses are dead, unreachable, or unwilling — face no legal consequence regardless of the underlying evidence.

What Comes Next

The Roberts-Smith prosecution will unfold over years, not months. The Oliver Schulz case, filed in 2023, has not yet reached trial and is unlikely to be heard before 2027 due to security classification disputes over evidence [16]. Roberts-Smith's case, involving five charges and multiple immunity witnesses, will be at least as complex.

The outcome will set precedent for how — and whether — Australia holds its soldiers accountable for conduct in foreign conflicts. An acquittal would vindicate Roberts-Smith but raise questions about whether the legal system can prosecute war crimes at all when the evidence is gathered years after the fact, in a country investigators cannot enter, from witnesses who were themselves participants. A conviction would establish that Australia's domestic war crimes provisions are enforceable — but leave unresolved the 37 other alleged victims whose cases have been closed or remain in limbo.

For the families of those killed in Uruzgan Province, neither outcome addresses the fundamental asymmetry: they were not consulted, not informed, and not made parties to the process that will determine whether the killing of their relatives was a crime or the cost of war.