This article was written by Dr Dean Aszkielowicz and Paul Taucher from Murdoch University's School of Humanities, Arts and Social Sciences, and originally appeared in The Conversation.
On Thursday, Justice Anthony Besanko of the Federal Court dismissed defamation proceedings brought by former Special Air Service soldier Ben Roberts-Smith against several Australian news outlets.
The court found that reporting by Nick McKenzie, Chris Masters and David Wroe had satisfactorily established the truth of several serious imputations against Roberts-Smith. These included claims he committed war crimes during his service in Afghanistan.
The judgement is a landmark moment in Australian military history, with implications for the investigation and potential prosecution of other Australians suspected of war crimes. The explosive evidence heard in the case also underlines the need for the Army, the broader defence community and the Australian public to reckon fully with the conduct of Australian forces in the Afghanistan campaign.
Standards of proof and evidence
Roberts-Smith could conceivably face criminal prosecution for the alleged murders at a future war crimes trial. This case was a civil proceeding, meaning the imputations only needed to be proven true on the balance of probabilities, a substantially lower requirement than proof beyond a reasonable doubt, which would be required in a criminal trial.
Because of the different standards of proof, it is not certain Roberts-Smith would be found guilty in a war crimes trial, assuming all the same evidence was called. Prosecutors will be concerned, moreover, that the outcome of the high-profile defamation trial might influence a future war crimes proceeding.
It is likely any criminal trial for Roberts-Smith will be held before a judge, without a jury. It is not unusual for a war crimes trial to be held without a jury; past Australian trials were held before a panel of three to five judges, all of whom were military officers.
Another way to overcome the problem of the defamation outcome poisoning a future criminal trial in Australia would be for the government to hand Roberts-Smith over to the International Criminal Court in the Hague, a court with long experience in dealing with very high profile war crimes cases. However, doing so would probably be deeply unpopular and signal to the world that Australia cannot dispense its own military justice.
Some imputations against Roberts-Smith were not substantiated at the defamation trial. However, Justice Besanko found that these defamatory statements, which concerned threatening a fellow soldier and domestic violence, were nonetheless contextually true. This ruling means the newspapers are not liable for these imputations because the more injurious claims, including war crimes, were found to be true, so the defendant would suffer no further reputational damage.
It remains to be seen what the full reaction to Thursday’s judgement will be. Roberts-Smith still holds the Victoria Cross, the country’s highest military honour. He received financial support for the case from Kerry Stokes – who, from 2015 to 2022, was chair of the Australian War Memorial. Stokes allegedly referred to McKenzie and Masters as “scumbag journalists”.
While the memorial as an institution did not support Roberts-Smith with the case, Stokes remained as chair even after his role was publicly questioned. The interpretation from some quarters that reporting on Roberts-Smith constitutes unfair criticism of a war hero will persist. Others, of course, will see it as exactly the job investigative reporting is meant to do.
The Australian Defence Force has taken the allegations brought forward by journalists and other sources seriously. It commissioned Paul Brereton’s Afghanistan inquiry and appears to accept that the conduct of some Australian personnel was potentially illegal.
While the findings in the defamation case support the ADF’s position that an inquiry was needed, the case was not a “proxy war crimes trial”. It does not deliver justice for alleged war crimes. Only properly convened war crimes trials can answer the questions that hover over Australian conduct in Afghanistan, including the role of commanding officers.
War crimes trials, however, take significant institutional momentum to convene and sustain: they are costly, long-running and controversial. The challenge for the ADF now is to continue to support the thorough investigation of alleged war crimes and to pursue criminal prosecution where it is warranted.
Since the second world war, Australia has positioned itself internationally as a champion of the laws and proper conduct of war. Australian forces have been deployed to many difficult conflicts, where they have largely been trusted operators.
The judgement in this case ought to have minimal impact on Australian forces who are deployed overseas, as following the rules of war is assumed to be part of any mission they undertake. If the case does come as a wake-up call to some, then the ADF will have to further assess its training on the laws of war, its leadership, and its culture.
The Roberts-Smith case, the finding against him and the graphic detail in the publicly available evidence made headlines around the world. If public faith in the ADF is to be restored, together with its international reputation, there must now be an exhaustive process of investigation and prosecution of any war crimes committed in Afghanistan.