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Decorated Australian soldier loses defamation case over war crime allegations; implications for UK’s own Special Forces military investigation grow

Ben Roberts-Smith, Australia’s most decorated living soldier, has failed in a defamation lawsuit against three news outlets that accused him of war crimes in Afghanistan. The three media sources, The Sydney Morning Herald, The Age, and The Canberra Times, had published articles between 2009 and 2012, alleging that Roberts-Smith had murdered unarmed prisoners, amongst other charges. After an unprecedented civil trial, the court upheld four out of the six murder allegations brought against Roberts-Smith. However, the newspapers were unable to substantiate other allegations of assault, threat, and falsification of field reports. Still, additional charges of bullying were proven valid.

Roberts-Smith, who left the defence force in 2013, has yet to be formally charged or convicted in a criminal court. His distinguished military career includes receiving the Victoria Cross in 2011, Australia’s highest military award, for single-handedly neutralising Taliban machine-gunners threatening his platoon. However, these legal controversies have substantially tarnished his public reputation.

As these events unfolded, the U.S. has expressed concerns about its collaboration with Australian special forces following a report on alleged war crimes in Afghanistan. Gen Angus Campbell, the Chief of the Australian Defence Force, confirmed adjustments to an army member’s employment conditions after the U.S. raised concerns. The U.S. government, under the “Leahy Law,” can suspend assistance to foreign security units implicated in gross human rights violations.

In response to the Brereton report implicating 25 current or former special forces personnel in alleged unlawful killings, the U.S. raised the possibility of Leahy Law considerations regarding its relationship with Australian Special Operations Command or the Special Air Service (SAS) regiment. Despite concerns about this foreign law’s influence on Australian personnel, Gen Campbell assured that there was no inappropriate conduct.

The U.S. concerns led to some adjustments in the employment conditions of an Australian army member. Gen Campbell reiterated the importance of remediation to maintain the defence engagement between the U.S. and Australian special forces. Despite the tensions, the Australian special forces are currently operating with U.S. forces without any Leahy law-related restrictions.

These developments come in the wake of the 2020 landmark report indicating credible evidence of unlawful killings of 39 civilians and prisoners by Australian forces in Afghanistan from 2007 to 2013. With more than 40 soldiers currently under investigation for alleged war crimes, this case represents a significant litmus test for Australian military conduct in Afghanistan.

In the UK, the independent investigation led by Lord Justice Haddon-Cave into allegations of unlawful killings by the UK’s armed forces in Afghanistan, especially by the Special Air Service (SAS), between 2010 and 2013, and purported subsequent cover-ups, continues. Established in response to legal challenges and investigations by Action on Armed Violence (AOAV) and the BBC Panorama team that revealed multiple questionable SAS killings, the inquiry is set to scrutinise the adequacy of Royal Military Police investigations, the credibility of information about unlawful killings, potential cover-ups, and learning opportunities.

While national security and witness safety considerations mean that most of the inquiry will occur privately, public hearings will be held when possible. Amid calls for accountability and justice from figures such as Iain Overton, Executive Director of AOAV, the findings from this inquiry are expected to face intense public and media scrutiny. The outcome of this inquiry will not only impact the reputation of the UK’s armed forces and the country on the global stage but may also influence future military policies and practices, including the transparency and accountability of the UK’s military operations.

The recent proving of concerning behaviour by Australian Special Forces units in Afghanistan will add focus to Lord Justice Haddon-Cave’s review, exposing the toxic environment in which some Special Forces units were operating in a decade ago there.