The Australian War Crimes Defamation Trial: Roberts-Smith v Fairfax

[Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars.]

This post is about one of the most talked about trials in Australian legal history: a former soldier suing the media for defamation, for publishing allegations that he committed war crimes. During the trial a plethora of evidence against him (i.e. evidence that he committed war crimes) was given. This left many Australians asking, with incredulity, ‘why did he bring this case?!’. The terms ‘own goal’ and ‘Streisand effect’ were frequently used, and with the delivery of the decision on 1 June, are quite fitting.

Background

In early 2020, the Australian Broadcasting Cooperation (ABC) began publishing significant, in-depth stories based on investigative reporting from Mark Willacy about allegations of war crimes committed by Australian special forces in Afghanistan. These were not the first allegations, but they were substantial and significant, especially as they were accompanied by video footage of crimes including murder being committed, captured on the soldiers’ own cameras. 

However, these were not the first allegations of war crimes by Australian soldiers raised by the media. In 2018, Fairfax media outlets the Age, the Sydney Morning Herald and the Canberra Times, published articles alleging a series of war crimes committed by Ben Roberts-Smith (‘BRS’). BRS is a highly decorated veteran of the Australian Defence Force (ADF), having served in the Special Air Service Regiment (SAS, aka special forces), and been awarded Australia’s highest military honours, the Victoria Cross in 2011 and the Medal for Gallantry in 2006. But his actions were under scrutiny because, in 2016, the Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry was commissioned by Defence to look into allegations of war crimes by special forces in Afghanistan in the 2005-2016 period (I will discuss the outcomes of this inquiry below).

The allegations reported against BRS were numerous, and included allegations of the commission of murder; the ordering of subordinates to commit murder; bullying; and domestic violence. 

The Case

In 2020, BRS brought a defamation case against Fairfax Media, alleging that he was defamed by the content of the articles alleging his commission of war crimes, bullying and domestic violence. The trial was the second longest defamation trial in Australian legal history, with over 100 days of evidence, lasting more than one year. The Australian public was captivated, as much of the evidence seemed to support the allegations of war crimes by BRS. The Guardian even created a podcast just about this case. Not all evidence in the trial was public; some evidence was suppressed because of national security reasons, but there was enough public evidence to shock those keeping track of the case, which was often front-page news due to the shocking nature of the allegations. The respondents’ (Fairfax) argued the truth defence; and BRS argued that all the witnesses testifying against him were jealous of his medal, hated him, and were fabricating their evidence.

The Decision

A summary of the decision was delivered on 1 June 2023. Publication of the full reasoning will be delayed, enabling the Commonwealth to ensure there is no national security content in the publicly available decision. A hearing for costs has been ordered for late June 2023 (costs are estimated to be at least AUD25 million, the most expensive defamation case in Australian history).

Judge Besanko found that Fairfax had established a substantial truth defence for the majority of the allegations, including ordering the murder of an unarmed Afghan civilian, Ali Jan, after kicking him off a cliff; killing an unarmed man with a prosthetic leg and then taking that leg which was later used by soldiers as a drinking vessel; authorising the execution of an unarmed Afghan; bullying a fellow soldier; assaulting unarmed Afghans; disgracing Australia and the ADF through his conduct in Afghanistan; and violating the laws of war. Two allegations were found not have been substantiated, and two others were found not have proven substantial truth but a defence of contextual truth (including the domestic violence allegation). 

Medals and Memorials

In response, academics and politicians have called for BRS’s display (including his uniform) at the Australian War Memorial to be removed. Twitter is awash with discussion as to whether he will be stripped of his medals. After the Brereton Report, some special forces units were stripped of their medals, but these were reinstated by the then-Defence Minister, Peter Dutton. The current Defence Minister, Richard Marles, is re-considering the medal issue under recommendations from the ADF Chief, General Angus Campbell.

A Criminal Trial?

In November 2020, the Brereton Report was released as the output of the Afghanistan Inquiry. This report detailed allegations relating to breaches of international humanitarian law (IHL) conducted by special forces in Afghanistan from 2005 to 2016 (although large portions are redacted). The report captured the nation’s attention as it revealed practices such as ‘blooding’ (ordering junior soldiers to kill prisoners), ‘throwdowns’ (planting weapons or radios on bodies of Afghan civilians), and a general ‘warrior culture’ in the special forces.  The report resulted in substantial response from the Australian Defence Force (ADF) and other government agencies including law enforcement (although more remains to be done). Most significant was the establishment of the Office of the Special Investigator (OSI), tasked with undertaking criminal investigations into potential criminal conduct raised in the Brereton Report. The OSI works with the Australian Federal Police (AFP) investigating any breaches of IHL committed by members of the ADF in Afghanistan from 2005 to 2016. In March 2023, the first former SAS soldier, Oliver Schulz, was arrested for the war crime of murder (footage of which is shown in the ABC documentary linked above), facing life in prison if he is convicted. General Campbell has openly said that his concern is about the ADF upholding “the correct values and behaviours” rather than protecting his own reputation, so there is strong support from the head of the ADF for the OSI.

While the OSI has not made public the names of suspects (understandably, in criminal investigations), it is known that BRS “was informed [in 2020] by the Australian Federal Police that he was considered to be a suspect in relation to an investigation into alleged war crimes committed at Darwan Village in Afghanistan on 11 September 2012”. This is significant, because the Darwan allegation (that of the killing of Ali Jan) is one of those found by Besanko J that the respondents had established substantial truth of, demonstrating a belief by that judge of the evidence given by witnesses. Of course, the ‘balance of probabilities’ standard of proof in a defamation case is below that of the ‘beyond reasonable doubt’ standard required in a criminal trial, so prosecutors will have to prove that higher standard for a criminal conviction. There were Commonwealth representatives (whether OSI or AFP) in the BRS trial every day, listening to the proceedings. It must also be recalled that the OSI is working with the AFP, with full investigative capabilities, and may have additional evidence to that offered in the defamation trial. 

If a war crimes case proceeds against BRS, one of the interesting elements will be to see if he is charged with command responsibility (including for ordering subordinates to murder unarmed Afghans). I have written elsewhere, with Douglas Guilfoyle and Joanna Kyriakakis, about the challenges of implementing this mode of liability under the Australian Commonwealth criminal law, so if BRS were to be charged with command responsibility, it will be a first in Australian law, but also interesting to see how the prosecution and court deals with the legal challenges this may present. At a least, it could be ascertained that BRS would be charged with the war crime of murder, for allegations that on the so-called ‘Whiskey 108’ raid, he threw a man with a prosthetic leg to the ground and then shot him.

The OSI has said there will be other arrests in the coming year; whether one of those is Ben Roberts-Smith, remains to be seen. Watch this space.