In a historic win for investigative journalism Federal Court Justice Anthony Besanko threw out the defamation case brought by Ben Roberts-Smith; a man described by the ABC as Australia's most decorated Australian living soldier. The court found that newspapers had established the substantial truth, relating to serious allegations of unlawful killings/assaults of unarmed Afghan prisoners. Roberts-Smith claimed that the allegations published by media outlets that he had committed crimes during his six tours of Afghanistan between 2006 and 2012, defamed his character and reputation.
The Age, the Sydney Morning Herald, and the Canberra Times argued in their defence the substantial truth and contextual truth of their assertions. The judgment, which will be heavily redacted for reasons of national security, found that on the balance of probabilities Ben Roberts-Smith had murdered and coldheartedly committed war crimes against unarmed civilians while serving in Australia's military in Afghanistan.
The case brought by Roberts-Smith was not a war crimes trial, nevertheless the determination by Federal Court Justice Besanko was that it is reasonable to conclude that war crimes had occurred. So how was a Judge able to make these conclusions on the facts?
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While this was one of the most significant and expensive trials in Australian legal and military history, it was not a trial of Roberts-Smith for crimes committed. Roberts-Smith had sued three Australian newspapers – the Age, the Sydney Morning Herald, and the Canberra Times – for defamation, alleging a series of stories they published in 2018 had falsely portrayed him as a murderer and a war criminal, a man "who broke the moral and legal rules of military engagement" and "disgraced" his country and its military.
In cases of defamation such as this, the judge is required to balance the claimant's need for vindication against the public's right to know. Roberts-Smith's claim for damages to his reputation of the unproven allegations, were weighed against those allegations that were proven to be true. The media defended their reporting as true and maintained the importance of freedom of expression in the discussion of matters in the public and national interest. In so doing the respondent newspapers were required to prove the veracity of their claims.
Truth is always a defence to a claim of defamation. The newspapers only needed to show that some of the accusations were substantially true; and the remaining allegations did not further harm the reputation of the plaintiff because of the substantial truth of the contextual assertions. Of course, they could always have had the backup defence of public interest, however by following the truth defence, the Australia public was provided a default trial of the facts. Opening up a Pandora's box the Robert-Smith's legal team would have better advised him to "choose his battles".
In usual circumstances, a civil judge needs to weigh the evidence on a balance of probabilities. However in circumstances involving serious allegations such as these, a judicial finding would need to be supported by cogent or strict proof, in accordance with the Briginshaw standard.Briginshaw v Briginshaw(see High Court Justice Dixon's obiter remarks) is precedent for the idea that "the strength of evidence necessary to establish facts on the balance of probabilities may depend on the nature of what is sought to be proven." The severity of the claim necessitated a higher standard of proof applied and the defence of truth required the judge to hear the evidence, in order to establish its probative value.
History of war crimes trials in Australia
Historically Australia has not conducted war crimes investigations and/or prosecutions of its own citizens. Between 30 November 1945 and 9 April 1951 Australian Military courts conducted 296 held in eight venues; Labuan, Wewak, Morotai, Rabaul, Darwin, Singapore, Hong Kong, and Manus Island. These military courts tried 924 enemy nationals for war crimes. Under the enabling legislation – the War Crimes Act 1945, 148 enemy nationals were sentenced to death and executed, with an additional 496 given prison sentences.
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However there has not been a war crimes trial on Australian soil involving an Australian soldier. There are only examples of Australian solders tried overseas for crimes committed under the command of the British forces, and trials of suspected Nazi war criminals who became naturalized in Australia after WWII. But there has never been an incident where Australia has called one of its own soldiers to account for war crimes committed on foreign soil.
Lieutenant Harry "Breaker" Morant was court-martialled along with his Australian co-accused Peter Handcock. Both were sentenced to death and executed in South Africa by the British Military under a death warrant personally signed by colonial administrator Lord Kitchener. The two Australians, Morant and Handcock, were members of the Bushveldt Carbineers, a British Army unit that included many Australians, during the Second Boer War. The Australian public came to interpret the executions as politically motivated. The men were considered to be the "scapegoats of the Empire".
A second example of war crimes trials in Australia was Polyukhovich v The Commonwealth [1991] HCA 32. Ivan Polyukhovich settled in Adelaide as a post-war immigrant, become an Australian citizen after the second world war. Polyukhovich, an alleged Nazi war criminal, was accused of murdering, or assisting in the murder of up to 900 men, women and children in Nazi-occupied Ukraine. Tried under the War Crimes Act 1945, by a South Australian court for crimes committed against Ukrainian Jews, Polyukhovich walked free on May 18, 1993, the charges against him never proven.
The establishment of the Special Investigation Unit SIU in Australia
After World War II there were an estimated 4,000 to 5,000 war criminals who found sanctuary in Australia. Mr A.C.C. Menzies AM, OBE in his Report on the Review of Material Relating to the Entry of Suspected War Criminals into Australia (Menzies Report 1987) identified 70 cases for follow up. The report also recommended the establishment of a Special Investigations Unit ('SIU') to investigate allegations of serious war crimes.
In the late 1980s, Prime Minister Bob Hawke and Attorney General Lionel Bowen decided that a Unit be established within the Attorney-General's portfolio tasked with investigating and prosecuting accused war criminals through Australian criminal courts, rather than deporting them. They created the Special Investigations Unit (SIU) to oversee and investigate these, and any allegations subsequently brought to its attention.
The Unit was a response to the widespread concern following revelations of suspected Nazi war criminals living in our midst. The Special Investigations Unit (SIU) commenced operation on 11 May 1987 and was commissioned to examine allegations made against Australian citizens or residents. The Unit employed lawyers, historians and researchers to collect documentary and eye-witness evidence, prepare matters for trial and prosecute cases of war crimes.
Many of the historical war crimes trials were always going to face obstacles including the Australian criminal standard of proof, elderly defendants, failing memories of witnesses/victims, quality of evidence, collection of evidence from international exhumation and investigations sites, witnesses that needed to travel to Australia to give testimony and defence lawyers that were able to cast doubt on the veracity of memory recall relating to past events. Of the hundreds of investigations conducted, only three charges were perused, Polyukhovich the most prominent, with no convictions. Along with Polyukhovich, two other Ukrainians - Heinrich Wagner and Mikalay Berezovsky - were charged following investigations by the SIU. Only Polyukhovich stood trial and the other cases were later dropped.
Over time the public support for these war crime trails diminished and ultimately the limited appetite for these types of investigations and prosecutions saw the winding-up of the Special Investigations Unit. The SIU finally shut down in 1992, but stories about Australia being a safe haven for war criminals continued to surface, notably Latvian Nazi collaborator Konrad Kalejs in the early 2000s who used his Australian citizenship to evade attempts to extradite and prosecute him for war crimes in Latvia.
As Australia failed to consolidate its war crimes program many of those Australian investigators went on to lead investigative teams in international criminal tribunals abroad. The Australian Federal Police AFP who have the mandate to conduct investigations into these crimes took their specialist expertise and training and applied this to international criminal investigations in the former Yugoslavia and Rwanda.
However rumours and revelations of incidents of alleged war crimes committed by Australian special forces in Afghanistan began to emerge. In May 2016, the Inspector-General of the Australian Defence Force commenced an inquiry led by Justice Paul Brereton following persistent rumours of possible breaches of the Law of Armed Conflict by members of the Special Operations Task Group in Afghanistan over the period 2005 to 2016. (Brereton Report).The AFP also commenced investigations into some of the allegations of crimes.
The Australian public first learned of possible war crimes by Australian Special Air Service Regiment (SAS) members against Afghan civilians and captured combatants in Afghanistan, on March 16, 2020 in an episode of ABC's Four Cornersthat broke the story (see Mark Willacy's "Killing Field: Exposing killings and cover ups by Australian special forces in Afghanistan".
On 6 November 2020, the Chief of the Defence Force received the Afghanistan Inquiry report from the IGADF, and he announced the findings on 19 November 2020. A copy of the Afghanistan Inquiry Report(Known as the Brereton Report- Public Release Version - heavily redacted) is available to the public.
The report found that;
The nature and extent of the misconduct allegedly committed by ADF members on operations in Afghanistan is very confronting. The Report discloses allegations of 39 unlawful killings by or involving ADF members. The Report also discloses separate
allegations that ADF members cruelly treated persons under their control. None of these alleged crimes was committed during the heat of battle. The alleged victims were non-combatants or no longer combatants.
Following the November 2020 release of the Brereton Report, the Australian government established an Office of the Special Investigator (OSI)to further examine the dozens of incidents identified in the report. The OSI is an independent Executive Agency, the same as its predecessor, situated within the Attorney-General's portfolio. The stated purpose of the Office of the Special Investigator is to review the findings of the Inspector-General of the Australian Defence Force Afghanistan Inquiry and to work with the Australian Federal Police (AFP) to ​investigate the commission of criminal offences under Australian law arising from or related to any breaches of the Laws of Armed Conflict by members of the Australian Defence Force in Afghanistan from 2005 to 2016.
A new era of war crimes trials in Australia?
It is unclear as to how Robert-Smith's defamation case will impact the integrity of criminal investigations. Although criminal charges do not automatically result from the defamation judgment – the factual events and criminal allegations will be followed up by a criminal investigation.
However, care will need to be taken to ensure that the evidence is not tainted. During the Brereton inquiry the Chief of the Defence Force referred two allegations to the Australian Federal Police for criminal investigation. The information referred to the AFP had deficiencies because it was obtained through the use of powers which compel individuals to attend hearings (coercive powers) and/or provide information or documents (coercive material). We know this because the AFP submitted briefs of evidence to the Commonwealth Director of Public Prosecutions (CDPP) in 2020 and 2022.The CDPP informed the AFP it had decided not to prosecute. On 14 June 2023 the Australian Federal Police abandoned the investigation over concerns that the evidence was potentially inadmissible.
Any future war crimes prosecutions of Ben Robert-Smiths will be conducted as a new investigation by the Office of the Special Investigator (OSI). Certainly the Special Counsel can receive information directly from external sources (for example, members of the public), and its remit extends beyond the information contained in, or obtained by, the IGADF Afghanistan Inquiry. Preparing a new brief of evidence will now be the responsibility of Operation Emerald, a joint taskforce of the Office of the Special Investigator and the AFP.
Perhaps Roberts-Smith hoped to deflect, or pre-empt a criminal finding against him? If this was his intention, it most certainly backfired.
Already Roberts-Smith's miliary record, his standing with the Special Air Service (SAS) and the status of his medals (including the Victoria cross) are all fall-out from the legal decision.
His foolhardy staring down of the allegations and imprudent defamation case (for loss of reputation and economic loss) against media outlets, served only to increase the likelihood that he will be criminally charged for among other things war crimes. Far from a modern-day Lieutenant Harry "Breaker" Morant, history will not likely be so generous to Roberts-Smith. While Breaker Morant was court martialled and executed for war crimes in 1902 (for the killing of POWs contrary to the laws of war), he was held to be a national hero of sorts. Morant came to symbolise Australia's resolve not to have Australian soldiers prosecuted for war crimes in foreign countries and instead to try their own citizens. The Polyukovich case represents the Australian government's resolve not to harbour World War II criminals in our midst.
The re-instatement of the Office of Special Investigations unit signals a new era of war crimes trials in Australia and demonstrates a moral fortitude to look introspectively and scrutinize the ugly truth of what occurred in Afghanistan between 2005 and 2016.
Australia has the opportunity here, to call out the worst examples of military atrocities, so as to confirm to the Australian public, and the world, that the allegations relate to isolated incidents, of aberrant conduct by a few. By doing so the Australian Military reputation can be upheld and we can honour what is good about Australia's defence forces.
The writer is a civilian lawyer who worked alongside the Australian military in Bosnia and East Timor – I can attest to the professionalism and discipline of the ADF forces overseas. So too, as a lawyer working in war crime prosecutions in the Hague and East Timor, I know that these hearings can bring healing, shed light on what happened, permit the post-mortems, and draw the necessary lessons.
Australians can expect from the Special Investigations Unit a full and frank criminal investigation. Undoubtedly the findings in the Brereton Report of 39 cases of potential war crimes require further investigation with a view to instituting criminal proceedings. Australia has a positive duty to investigate and prosecute war crimes committed by our soldiers, consistent with our membership of the International Criminal Court and our own domestic adoption of international criminal law. This should be supported by sustained and continued efforts to identify and hold to account all those in the direct chain of command who have directed and coerced their subordinates, in the context of overseas missions, to deviate outside the Geneva Convention's terms of engagement and the internationally accepted laws of war. Only disciplined military forces facilitate probing examination of their own conduct, for this Australian forces are to be whole-heartedly applauded. It is not the actions of Ben Roberts-Smith that tarnish Australia's reputation, but rather how we respond to the revelations now that it is in the public domain.
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