Australia’s ‘Most Decorated’ Soldier Charged with Five War Crimes of Murder

[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’.