Australia's Most-Decorated Living Soldier Charged with Alleged War Crimes

Australian Federal Police arrested Ben Roberts-Smith at Sydney Domestic Airport on April 7, 2026, and charged him with five counts of war crime murder under section 268.70(1) of the Commonwealth Criminal Code [1]. The 47-year-old former Special Air Service Regiment (SASR) corporal — the most highly decorated living member of the Australian Defence Force and recipient of the Victoria Cross for Australia — faces a maximum penalty of life imprisonment on each count [2].

The charges stem from alleged unlawful killings of five Afghan nationals in Uruzgan Province between 2009 and 2012. According to AFP Commissioner Krissy Barrett, the alleged victims "were not taking part in hostilities," "were detained, unarmed and under the control of ADF members when they were killed," and "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" [1].

The Five Charges

The charges filed under Operation Emerald-Argon, a joint investigation between the Office of the Special Investigator (OSI) and the AFP, cover three separate incidents across three locations [1][3]:

Kakarak, Uruzgan Province — approximately April 12, 2009:

• Count 1: War crime murder — intentionally causing the death of a person
• Count 2: War crime murder — aiding, abetting, counselling, or procuring another person to cause a death

Darwan, Uruzgan Province — approximately September 11, 2012:

• Count 3: War crime murder — aiding, abetting, counselling, or procuring another person to cause a death

Syahchow, Uruzgan Province — approximately October 20, 2012:

• Count 4: War crime murder — jointly and intentionally causing a death with another person
• Count 5: War crime murder — aiding, abetting, counselling, or procuring another person to cause a death

The prosecutorial timeline from the earliest alleged act to formal charges spans 17 years (2009 to 2026). Roberts-Smith was held in custody overnight and appeared before a New South Wales court for a bail hearing [2].

From Civil Findings to Criminal Charges

These criminal charges follow years of civil litigation that produced detailed judicial findings about Roberts-Smith's conduct. In June 2023, Federal Court Justice Anthony Besanko ruled in a defamation case that Roberts-Smith had been involved in the unlawful killings of four Afghan men — a finding made on the civil standard of proof, the "balance of probabilities" [4]. The 110-day trial heard from 41 witnesses, many of them current and former SAS soldiers testifying under pseudonyms, who described what the court characterized as systematic unlawful killings of detained prisoners [5].

Roberts-Smith's appeal was dismissed by the Full Court of the Federal Court on May 16, 2025, with the three-judge panel unanimously finding "the evidence was sufficiently cogent to support the findings that [Roberts-Smith] murdered four Afghan men" [6]. His final appeal bid was rejected by the High Court in September 2025 [2].

The criminal prosecution faces a higher evidentiary threshold. While the defamation trial required proof on the balance of probabilities — meaning the events were more likely than not to have occurred — the criminal charges require proof beyond reasonable doubt [3]. The prosecution also faces obstacles that did not apply in the civil case: restricted access to crime scenes in Afghanistan, limited physical evidence, and the challenge of securing testimony from witnesses in an active conflict zone more than a decade after the events [7].

The Brereton Report and the Scope of Investigations

Roberts-Smith's charges arise from the broader investigation triggered by the Inspector-General of the Australian Defence Force's Afghanistan Inquiry, known as the Brereton Report after its author, Justice Paul Brereton. Released in November 2020 after four years of investigation, the report found "credible information" that ADF personnel committed the war crime of murder in connection with 39 killings of Afghan civilians and prisoners across 23 separate incidents between 2005 and 2016, involving 25 current or former soldiers [8]. The report recommended that 19 individuals be referred for criminal investigation [9].

Source: AFP, OSI, Australian Parliament

Data as of Apr 7, 2026CSV

The Australian government established the Office of the Special Investigator in 2021 to build prosecutable cases from the Brereton Report's findings. As of April 2026, the OSI-AFP joint investigation has commenced 53 separate investigations into alleged war crimes by ADF members [1]. Of these:

• 39 investigations have been closed after finding insufficient evidence to support referral to the Commonwealth Director of Public Prosecutions [1]
• 10 investigations remain ongoing [1]
• 2 investigations have resulted in criminal charges — Roberts-Smith and one other former SAS soldier, Oliver Schulz [1]

The arithmetic is stark: of the 39 alleged unlawful killings identified in the Brereton Report, formal charges now cover six deaths (five attributed to Roberts-Smith, one to Schulz). Thirty-nine of 53 total investigations — roughly 74% — were closed without charges [1].

The Case of Oliver Schulz

Roberts-Smith is the second Australian soldier to face war crime charges stemming from the Afghanistan deployments. Oliver Schulz was charged in March 2023 with one count of war crime murder for the killing of Dad Mohammad, an unarmed Afghan civilian, during an SAS raid in May 2012 [10]. According to allegations, Mohammad was accosted by a patrol, mauled by the patrol's dog, forced to lie on the ground, and then shot three times in the head [10].

Schulz has pleaded not guilty. His trial, originally expected sooner, has been delayed until at least February 2027 due to complications around access to classified evidence and national security restrictions [11]. The case represents the first war crime prosecution of an Australian soldier in approximately 30 years [10].

The Alleged Victims and Afghan Families

The identities of the five individuals named in the Roberts-Smith charges have not been fully disclosed in public court documents. However, the defamation trial produced findings regarding some of the same incidents. Justice Besanko found that Roberts-Smith kicked a handcuffed Afghan man named Ali Jan off a cliff in Darwan in 2012, after which Ali Jan was shot dead [4]. At a compound known as "Whiskey 108" in 2009, Roberts-Smith was found to have shot an unarmed prisoner and directed a junior soldier to execute another [5].

Afghan victims' families have been largely excluded from the Australian proceedings. UN human rights experts have expressed "serious concern" that Australia has not directly apologized to the victims and their families, has not informed them about investigations or prosecutions, and has not enabled their families to participate in Australian proceedings [12].

In 2024, Australia passed the Defence (Afghanistan Inquiry Compensation Scheme) Regulations, creating an ex gratia payment scheme — meaning discretionary rather than legally mandated — for families of those "reasonably likely" to be victims of unlawful killings [13]. Professor Ben Saul of the University of Sydney has criticized the scheme for lacking clear compensation amounts, independent review mechanisms, and due process safeguards. As of the most recent reporting, no compensation payments had been made — nearly four years after the Brereton Report identified the victims [13]. The Afghan government under Taliban rule has not been formally given standing in the proceedings.

The Defence Case

Roberts-Smith has consistently denied all allegations. During the defamation trial, his legal team depicted him as a courageous and decorated soldier targeted by "bitter people" — failed soldiers jealous of his military success and Victoria Cross [4]. His barrister, Bruce McClintock SC, described specific claims against his client as "ludicrous" [4].

The strongest version of the defence argument rests on several pillars. First, the conditions in Uruzgan Province between 2009 and 2012 were among the most hostile faced by Australian forces. The Taliban operated among civilian populations, making combatant identification extremely difficult. Second, the prosecution relies heavily on testimony from other soldiers — some of whom have been granted immunities or who face their own credibility questions, having potentially participated in or witnessed the alleged events without intervening [3]. Third, defence advocates argue that prosecuting soldiers for decisions made during armed conflict, years or decades after the fact, risks chilling operational effectiveness and deterring service members from undertaking high-risk missions [14].

Nicholas Owens SC, barrister for the media organizations that defended the defamation case, countered this framing directly. He told the court that none of the alleged killings involved split-second decisions in the "heat of battle" or the "fog of war." Instead, the prosecution alleges the victims were persons under control — detained, unarmed, and restrained — at the time they were killed [5]. The distinction between killing an armed combatant in active hostilities and executing a detained prisoner is central to international humanitarian law, and the prosecution's case rests on the latter characterization.

International Comparison: How Australia Measures Up

Australia's prosecution of its own soldiers for Afghanistan-era conduct is unusual among coalition nations. No country involved in the Afghanistan conflict has provided what Human Rights Watch describes as "meaningful accountability" for serious abuses committed by their personnel [12].

Source: HRW, Lowy Institute, ICC

Data as of Apr 7, 2026CSV

United States: The US military has conducted several high-profile war crimes prosecutions, including the cases arising from the Abu Ghraib prison abuses in Iraq, the conviction of Staff Sergeant Robert Bales for killing 16 Afghan civilians in Kandahar in 2012, and the prosecution of Blackwater contractors for killing 17 Iraqi civilians in 2007 [15]. However, command-level accountability has been absent, and the US refuses International Criminal Court membership, insulating senior officials from international prosecution.

United Kingdom: The UK's record is widely considered the weakest among major coalition partners. The Iraq Historic Allegations Team (IHAT) investigated thousands of complaints but produced no prosecutions before being shut down [16]. The ICC's Office of the Prosecutor found "a reasonable basis to believe" British forces committed war crimes including wilful killing, torture, and sexual violence in Iraq, but closed its preliminary examination in 2020, concluding that Britain had not been "unwilling" to investigate — a finding criticized by Human Rights Watch and Amnesty International as rewarding obstruction [16]. A BBC investigation in 2022 found evidence of repeated extrajudicial killings by UK special forces in Afghanistan, but an independent inquiry into those allegations has been slow to progress and limited in scope [17].

Netherlands: Despite participating in the International Security Assistance Force in Afghanistan, the Netherlands has not publicly prosecuted any service members for war crimes committed during the conflict [12].

Australia, for all the criticism of its slow pace, has gone further than any other coalition nation in establishing a formal investigative mechanism and bringing criminal charges against individual soldiers [12].

The Financial Cost

The Australian government has allocated $318 million over a decade to fund the OSI's investigations [18]. With 19 soldiers initially recommended for criminal investigation, that figure equates to approximately $17 million per individual under scrutiny [18]. The OSI employs approximately 160 staff [18].

Critics have questioned the proportionality. Coalition defence spokesman Angus Taylor told The Nightly that the spending "raises real questions about efficiency, proportionality and basic fairness" given that, prior to the Roberts-Smith charges, only one person had been charged and none convicted [18]. Supporters of the investigations counter that the cost reflects the inherent difficulty of building criminal cases from military operations conducted in a foreign war zone more than a decade earlier, and that the alternative — impunity — would carry its own costs to Australia's international standing and military discipline [12].

The defamation proceedings alone reportedly cost millions, borne partly by Roberts-Smith's former employer, Seven Network chairman Kerry Stokes, who funded his legal campaign [4]. The total cost to the Australian public — including the original Brereton inquiry, the OSI, AFP resources, court proceedings, and eventual compensation — is not publicly disclosed in aggregate but extends well beyond the $318 million OSI allocation.

Sentencing and Precedent

If convicted, Roberts-Smith faces a maximum sentence of life imprisonment for each of the five counts under Division 268 of the Criminal Code Act 1995, which domesticates the provisions of the Rome Statute into Australian law [3][19]. War crimes offences under Division 268 generally carry maximum penalties ranging from 15 to 25 years, with murder carrying the highest penalty of life imprisonment [19].

No Australian soldier has been convicted of a war crime under these provisions, so there is no domestic sentencing precedent [10]. The outcome — conviction or acquittal — would carry significant implications for the approximately 700 ADF personnel whom the Brereton Report identified as having information relevant to the alleged crimes but who have not themselves been charged [8]. A conviction could strengthen the evidentiary basis and institutional momentum for pursuing the 10 remaining open investigations. An acquittal on reasonable doubt grounds — particularly if the evidence is deemed insufficient despite the civil findings — could effectively close the door on further prosecutions and raise questions about whether the evidentiary gap between civil and criminal standards in war crimes cases is insurmountable.

What Comes Next

Roberts-Smith's case will be heard in the New South Wales Supreme Court, though no trial date has been set [1]. The proceedings are expected to face the same classified-evidence challenges that have delayed the Schulz trial until 2027 [11]. Legal experts anticipate the case could take years to reach trial, given the complexity of the evidence, the number of witnesses, and the national security sensitivities involved [3].

The case tests whether a democracy can hold its most celebrated soldiers accountable for alleged crimes committed in its name during wartime. The answer will be closely watched — by the families of the alleged victims in Afghanistan, by serving military personnel considering the boundaries of lawful conduct, and by the international community assessing whether coalition nations can deliver on the accountability promises they routinely demand of others.