[Melanie O’Brien is Professor of International Law and Deputy Head of School (Research) at the University of Western Australia Law School; and visiting scholar with the University of Minnesota Law School’s Human Rights Center]
In June 2023, I wrote here about the defamation case relating to the media reporting on allegations of war crimes by Australian soldier Ben Roberts-Smith (‘BRS’). The defamation case was completed in 2025, when BRS’s appeal against the defamation finding was rejected. At the end of that post, I noted:
‘The OSI has said there will be other arrests [of Australian soldiers for war crimes] in the coming year; whether one of those is Ben Roberts-Smith, remains to be seen. Watch this space.’
It may have taken more than the year that was anticipated, but the arrest of BRS has occurred.
On 7 April 2026,
Ben Roberts-Smith (‘BRS’), known
as one of Australia’s ‘most decorated’ soldiers, including receiving the
Victoria Cross and Medial for Gallantry, was arrested and charged with five
instances of the war crime of murder. These charges relate to five separate
killing of individuals in various locations in Uruzgan Province, Afghanistan in
2009 and 2012, where BRS served with the Australian Special Forces (Special Air
Service Regiment, aka ‘the SAS’).
Background
The Australian
Defence Force (ADF) had personnel deployed in Afghanistan from 2001 to 2021,
engaged in NATO and UN missions. Part of this included the deployment of three
Special Forces groups including the Special Operations Task Group (SOTG), which
operated from 2007 to 2014 as part of the International
Security Assistance Force (ISAF), a multinational mission to enhance
security, disrupt the Taliban and target insurgency.
In November
2020, a
report commissioned by the Inspector-General of the ADF on allegations of
breaches of international humanitarian law (IHL) by Australian soldiers in
Afghanistan was released, known
as ‘the Brereton Report’. This report was heavily redacted but alleged 25
ADF personnel were involved in serious crimes, with 19 directly involved.
Allegations including ‘blooding’ (requiring junior soldiers to kill prisoners
to achieve their first kill), ‘throwdowns’ (planting incriminating evidence on
bodies), murder, and cruel treatment. These crimes were ordered by or done with
the full knowledge of patrol commanders, and the report raised concerns of the
‘warrior culture’ of the SAS, making 143 recommendations to address culture,
prevention, and accountability. It has resulted in significant
discussion of and changes to military
culture in Australia.
At the same
time, the Office of the Special Investigator
(OSI) was created, tasked with investigating war
crimes allegations in Afghanistan 2005-2016. The OSI sits under the
portfolio of the Attorney-General, works with the Australian Federal Police
(AFP), and gives briefs of evidence to the Commonwealth Director of Public
Prosecutions (Cth DPP) where there is sufficient evidence of a crime. Before
BRS’s arrest, only one soldier had been charged due to evidence from these
investigations, Oliver
Schulz, arrested in March 2023 and charged with the war crime of murder for
the killing of Dad Mohammad in Uruzgan in 2012 (see the documentary episode, ‘Killing
Field’, for footage of the murder Schulz is charged with). Schulz’s trial
is listed for hearing in February 2027.
BRS Arrest
and Charges
On 7 April, BRS
was arrested at Sydney Airport, taken directly from the plane by federal police
officers. The arrest was followed by a press conference from the AFP and the
OSI, and in the afternoon BRS was charged in court with five counts of the war
crime of murder.
He was charged
under s268.70 of the Commonwealth
Criminal Code Act 1995, ‘war crime- murder’:
(1) A person (the perpetrator) commits an offence
if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
This provision
falls under Subdivision F of the Criminal Code Act, which provides for
war crimes that are violations of Common Article 3 of the Geneva Conventions
committed in a non-international armed conflict. The penalty for the war crime
of murder is imprisonment for life.
All allegations
relate to the killing by ADF personnel of persons who were not taking part in
hostilities (either civilians or hors de combat), and were detained and
unarmed, in the power of the ADF. Two of these charges allege that BRS himself
murdered an individual (one in April 2009 in Karakak and one in October 2012 in
Syahchow).
Three charges
allege that BRS committed murder through ‘aiding, abetting, counselling or
procuring another person to intentionally cause the death of a person’ (in
April 2009 in Karakak, September 2012 in Darwan and October 2012 in Syahchow).
These three charges are alleging that BRS ordered subordinates to kill unarmed,
detained persons. Australia did not adopt the concept of ‘ordering’ as part of
the amendments to the Criminal Code Act as made after the 2002
ratification of the Rome Statute of the International Criminal Court (ICC), and
thus the concept of ‘aiding, abetting, counselling or procuring’ is found in
Section 11.2 ‘complicity and common purpose’ under the ‘General principles of
criminal responsibility’. Prosecutors will have to prove that BRS did aid,
abet, counsel or procure the commission of the offence, that the offence was
committed by the other person, and that BRS intended their conduct would
procure the commission of the offence. This will no doubt be argued based on
BRS’ status as a commander.
Notably, charges
have not been laid under command responsibility, which this author and
co-authors have argued should be applied, but will be extremely difficult
to charge given the unusual phrasing of the provision, which differs from the
Rome Statute definition (see Section 268.115 of the Criminal Code Act)
(see also this
article on the knowledge element in the Australian law on command
responsibility and another
piece also criticising the Brereton Report’s lack of focus on commanders).
Jurisdiction
over Australian soldiers for crimes committed in Afghanistan is provided for
under the Criminal Code Act. The Act allows for ‘extended geographical
jurisdiction’, providing for jurisdiction over war crimes, crimes against
humanity and genocide ‘whether or not the conduct constituting the alleged
offence occurs in Australia’ (Section 15.4 Extended geographical jurisdiction-
category D).
Prosecutors have
been given 21 May 2026 as the deadline by which to forward the brief of
evidence to the defence team.
Bail
Upon charging,
BRS was denied bail, with an appearance in Bail Division Court scheduled for
the next day, 8 April. At that virtual court hearing, BRS’ lawyer did not
request bail, so BRS remains in custody until at least a scheduled bail hearing
on 17 April 2026. There is also a court hearing set for 4 June 2026. Given his
wealth and access to travel (and known
for his international travel, including during
the defamation trial that he instigated), there is a high likelihood that
bail will be refused.
Indeed, there is
a presumption against bail for such a serious offence. However, Oliver Schulz
was granted
bail because the court agreed with Schulz’s barrister that there was ‘an
unacceptable safety risk’ for Schulz in prison, due to a likelihood of being
held in the same prison as Islamic extremists. Thus, Schulz was granted bail,
albeit with strict conditions: a high bail price, surrender of his passport,
prohibition on contacting any of his fellow SAS soldiers, barred from
contacting any prosecution witnesses, given a curfew, and required to report to
police daily. He was also required to submit any electronic devices to police
for searching when requested.
BRS is a far
more high-profile detainee than Schulz, but also a significant flight risk, and
has been charged with five murders. The fact that he did not request bail
immediately on the same ‘security risk’ grounds as Schulz and is prepared to
remain in custody indicates that the ‘security risk’ argument, if made later,
will be much more difficult to make. It will be interesting to see what the
court decides on bail at the hearing.
Future
arrests?
The
investigations are highly complex, in that they involve allegations of serious
crimes committed in a military culture of secrecy, but also significantly
because the investigators cannot access the crimes scenes or directly contact
people on the ground in Afghanistan due to safety reasons, and do not have
access to forensic evidence such as projectiles or a post-mortem of the victim.
Thus, the investigations rely on evidence such as third party evidence and ADF
contemporaneous reporting.
Updates from the
OSI have been infrequent, and, due to the nature of criminal investigations,
have provided no details of potential arrests or charges. In February 2023, the
OSI revealed it was investigating 40-50 offences and expected to give a brief
of evidence to prosecutors by mid-2023. Whether or not this deadline was met,
it demonstrates the length of time needed for these investigations. In the BRS
arrest press briefing, the OSI revealed that it had finalised 39 investigations
with insufficient evidence to bring charges, with 10 more investigations
ongoing. No further details were provided, but it was stated that if evidence
leads to clear evidence of crimes, that charges will be brought. These
investigations and arrests demonstrate that domestic accountability for war
crimes is a slow and does not always result in a successful road to justice,
but at least some steps are better than none.
What is certain
is that the BRS war crimes trial will be one of the most closely followed trial
in Australian history, given the rarity of an Australian being prosecuted for
war crimes but more so the context of the accused being one of Australia’s
‘most decorated’ soldiers. It will also be part of the canon of the relatively
low number of domestic war crimes trials globally over the last century. The
arrest and charging of Ben Roberts-Smith certainly shows that no one is above
the law, even the so-called ‘heroes’.
