Australian veteran loses defamation lawsuit over Afghan war crimes

Roberts-Smith, a former soldier with the SASR, sued the Sydney Morning Herald, The Age and Canberra Times for defamation after they reported he had murdered Afghans during multiple deployments to the country.

He claimed the publications had undermined his reputation and made him out to be a man who “broke the moral and legal rules of military engagement” and “disgraced his country and the Australian army”.

Reacting to the decision Afghanistan’s Taliban rulers said foreign forces had committed “uncountable crimes” during the 20-year war in the country.

A spokesperson for the group Bilal Karimi stated that incidents involved in the court case were a “small part” of the many alleged crimes that took place, and that they did not trust any court globally to follow them up.

In a summary judgement read out in Sydney on Thursday, Judge Anthony Besanko said that on the balance of probabilities – the evidential standard for a civil trial – “the respondents had established the substantial truth” of several of the allegations, including that in 2012 Roberts-Smith kicked an unarmed and handcuffed Afghan man off a cliff and then ordered two soldiers in his unit to kill the badly injured man.

Besanko found the journalists also established the substantial truth of reports that in 2009 he had murdered a disabled Afghan man, and also ordered the execution of a man who had hidden himself in a tunnel in a bombed-out facility known as Whiskey 108.

The publications, which had opted for the “truth” defence, welcomed the judge’s ruling.

Speaking outside court, Nick McKenzie, one of the journalists who reported the story, stated it was a day of justice for “those brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully and a liar”.

His colleague Chris Masters, standing alongside him, said the result was a “relief” and praised the paper’s owner, Nine, for going ahead with publication in 2018.

“I think it will go down in the history of the news business as one of the great calls,” he said.

The publications opted for the “truth” defence, and some 40 witnesses gave evidence, including Afghan villagers who appeared via video from Kabul, and a number of serving and former soldiers, some of whom Roberts-Smith accused of jealousy and lying.

The case transfixed Australia through 110 days of hearings that were delayed by the COVID-19 pandemic and ended with closing arguments in July 2022.

Andrew Kenyon, a professor at the Melbourne Law School and expert on media law, freedom of expression and defamation, said the outcome was damning for the veteran.

“His name will be very much linked in the public mind with the murders that the judge said he committed directly or ordered through other actions,” Kenyon told Al Jazeera, adding, “In that way, it’s a classic defamation case where the strongest result is in fact to change the reputation of the person who brought the case.”

The judge found that Roberts-Smith, who was not in court for the judgement, had also bullied fellow soldiers, but said other allegations of wrongdoing were not proven, including that he was complicit in two other murders in Afghanistan in 2012 and that he attacked his lover.

The full public judgement will not be available until Monday after the government asked for its release to be delayed on national security grounds.

Thursday’s judgement comes amid a growing focus on the conduct of Australia’s military.

The landmark Brereton Report, which was released in much-redacted form in 2020, found there was “credible evidence” members of the special forces had unlawfully killed 39 people while deployed in Afghanistan.

No soldiers were named in the report but it recommended 19 current or former members of the special forces be investigated by police over 23 incidents involving the killings of “prisoners, farmers or civilians” between 2009 and 2013.

An Office of the Special Investigator (OSI) was established and in March, it charged a 41-year-old former soldier with murder over the death of an Afghan man.

He is the first serving or former member of the Australian military to be charged with war crimes and faces a life sentence if found guilty.

Nine publishing executive James Chessell stated Thursday’s ruling in Roberts-Smith’s defamation case was a “critical step” towards justice for the families of those killed, adding that the group’s journalists would continue to pursue the story.

“The story goes beyond this judgement,” Chessell said outside court.

“We will continue to hold people involved in war crimes to account. The responsibility for these atrocities does not end with Ben Roberts-Smith,” Chessell added.

Roberts-Smith’s legal team has said they might consider an appeal and have 42 days to notify the court if they plan to do so.

A hearing will be held on costs in four weeks.

The hugely complex case is estimated to have cost as much as 25 million Australian dollars ($16.2m) and is the most expensive defamation case the country has ever seen, according to Kenyon.