In brief
- Ben Roberts-Smith was charged with five counts of the war crime of murder, allegedly committed while deployed in Afghanistan.
- His arrest comes after the landmark Brereton Report, which experts say differentiates Australia from its allies.
The charging of Australia's most decorated living soldier, Ben Roberts-Smith, marks a significant development in the investigation into alleged war crimes in Afghanistan and underscores how Australia's response has differed from its allies.
On Tuesday, Roberts-Smith, 47, was arrested and charged with five counts of the war crime of murder, allegedly committed while he was deployed in Afghanistan between 2009 and 2012.
Roberts-Smith has consistently strongly denied wrongdoing.
The allegations come six years after the landmark Brereton Report found evidence of 39 unlawful killings by Australian special forces in Afghanistan, which it described as "possibly the most disgraceful episode in Australia's military history".
When the report was published, Australian National University (ANU) international law expert Donald Rothwell described it as the "most significant" inquiry of our times.
The paper prompted then prime minister Scott Morrison to establish the Office of the Special Investigator (OSI) in 2021 to investigate possible criminal conduct and refer individuals for prosecution.
Following a years-long investigation, former Special Air Service Regiment soldier Oliver Schulz became the first Australian soldier to be charged with a war crime under Australian law in 2023 over allegations he executed an unarmed Afghan man in 2012.
Roberts-Smith is now the second, with the possibility that other soldiers will also face charges.
How does Australia's response compare to that of its allies?
The United States and the United Kingdom deployed significantly more troops to Afghanistan than Australia, with approximately 832,000 US personnel and 150,000 British troops serving during the 20-year conflict. By comparison, about 40,000 Australians fought in the war.
Like Australia, a small number of US and UK soldiers have had war crimes allegations levelled against them, but neither has undergone the same level of public reckoning prompted by the Brereton Report.
Douglas Guilfoyle, a professor of international law and security at the University of New South Wales (UNSW) Canberra, told SBS News Australia's response had been "more public and legally driven" than that of its allies.
"Australia's response stands out because it moved from a major independent inquiry — the Brereton Report — to the creation of a dedicated agency, the Office of the Special Investigator, and then to criminal charges against two former soldiers, with the possibility of further prosecutions to come," he said.
He said he believes Australians can "take a degree of pride" in the official response.
"In my view, our approach demonstrates an exceptional thoroughness and commitment to the rule of law and meeting our international obligations."
The US has prosecuted some personnel, including 12 soldiers over the so-called "thrill killing" murders of three Afghan civilians in the Maiwand District of Afghanistan.
Four of the men were convicted of murder, while seven were convicted of participating in a cover-up.
But unlike Australia, the US has not conducted a broad inquiry into allegations of war crimes, instead pursuing isolated prosecutions of individuals.
Guilfoyle said most countries were unwilling to see war crimes as systemic or due to a military's culture, with a tendency to treat rogue soldiers as being just a "few bad apples".
The US has offered limited cooperation with international investigations, threatening in 2018 to sanction officials from the International Criminal Court (ICC) if they pursued US citizens for alleged war crimes in Afghanistan.
It has also come under criticism from rights groups such as Amnesty International, which in 2012 accused the Pentagon of systemically covering or ignoring "abundant and compelling evidence" of war crimes.
Sarah Williams, a specialist in international law at UNSW Sydney, told SBS News there had not been the same type of push to investigate alleged war crimes by US soldiers as there had been in Australia.
"There's a sense that perhaps even if you do bring successful prosecutions, historically, they've been pardoned post-Vietnam war," she said, pointing out that US President Donald Trump in 2019 pardoned two soldiers implicated in war crimes in Afghanistan.
She said it may also reflect that the allegations made against US forces have not been of the same nature or scale as those uncovered in Australia.
The UK's response has been closer to Australia's, with the British government in 2022 establishing an independent inquiry into alleged unlawful conduct by its special forces.
The investigation was set up after a BBC Panorama documentary alleged a single British special forces unit had killed at least 54 Afghans in suspicious circumstances.
The inquiry is ongoing, and there have been no prosecutions to date.
In 2007, Canada conducted parliamentary and independent investigations over allegations that its troops had transferred detainees to the Afghan authorities despite knowing they would be at risk of torture. However, no criminal charges were ever laid.
New Zealand investigated the conduct of some of its special forces over allegations of unlawful killings during an operation in 2010. While some civilians were killed, the investigation found their deaths were not unlawful, and no charges were brought against soldiers.
At the time the Brereton Report was published, Dr John Blaxland, a professor of international security and intelligence studies at the Australian National University, said the inquiry was a reflection of Australia's commitment to democratic norms.
"This kind of report would never see the light of day in a closed society," he said.
"Australia, as an open liberal democracy, is right to address these issues with deliberation. The implications need to be considered carefully and responses need to be actioned, mindful of the need to contain the damage to the capability inherent in the defence force."
Guilfoyle noted that the International Criminal Court — which Australia but not the US is a party to — had the power to investigate and prosecute international crimes where a state was unwilling or unable to do it itself.
In 2020, the court authorised the investigation of alleged war crimes in Afghanistan by the Taliban, the Afghan army and the US military.
While the conduct of Australian forces was not part of the inquiry, Guilfoyle said it provided a "real political impetus" for Australia to investigate and prosecute its own military.
"I think for governments of all stripes, it's close to unthinkable that we would want to see Australian service personnel prosecuted by a foreign court."
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