Despite a Federal Court judge finding former SAS corporal Ben Roberts-Smith committed war crimes while serving in Afghanistan, the Victoria Cross recipient may still avoid facing criminal charges.
A defamation suit brought by Mr Roberts-Smith against The Age, The Sydney Morning Herald and The Canberra Times failed on Thursday, with Justice Anthony Besanko finding a number of articles published in 2018 implicating him in war crimes were substantially true.
Whether or not the 44-year-old is criminally liable, however, remains entirely separate and “hypothetical”, Neil James, a former soldier and executive director of independent watchdog the Australia Defence Association said
“A civil law case has nothing to do with criminal charges. Absolutely nothing,” Mr James added.
“Just because you lose a defamation case, doesn’t mean that you’re going to be charged with war crimes.
“They’re unconnected.”
Mr Roberts-Smith may still face criminal charges by the Australian Federal Police and Special Prosecutor but any outcome would likely take years, Mr James said.
Mr James added Australia needed to take action over war crimes outlined in a groundbreaking report by the Inspector-General of the Australian Defence Force released in 2020.
Conducted by Major General Brereton, the inquiry found credible information of 23 incidents in which 39 individuals were unlawfully killed by Australian soldiers in Afghanistan.
“The Brereton Inquiry … established that at least in some cases there were war crimes,” Mr James said.
“The fact that no Australian has yet been convicted of that doesn’t alter the fact that they happened.
“Therefore, the ADF and the country have to do certain steps to stop them happening again.”
Former SAS soldier Oliver Jordan Schulz, who was also deployed in Afghanistan, has been criminally charged over the allegedly killing an unarmed Afghan man in a wheat field in 2012.
Mr Roberts-Smith has not been officially charged with any crime and maintains his innocence.
“Whatever you may think of Ben Robert-Smith he’s the most highly decorated soldier of the Afghanistan war,” Mr James said.
“And irrespective of what you think of him in other ways, he’s got to be respected for that.”
The Returned and Services League of Australia said it respects the judicial process and declined to comment at length on Thursday’s result.
“The RSL feels for all veterans and their families, including Mr Roberts-Smith, that are impacted by the outcome of the Federal Court proceedings,” an RSL spokesman said.
“The RSL stands ready to provide appropriate support.”
