WAR CRIME ALLEGATIONS MUST BE TESTED IN THE RIGHT FORUM
By NOEL PEARSON
The trial of Victoria Cross medallist Ben Roberts-Smith for war crimes should result in a judgment for
defamation in his favour in respect of the claims made by respondent media that he committed murder
during his war service in Afghanistan.
Melbourne barrister Matt Collins got it right in a Sydney Morning Herald commentary last June that
the Roberts-Smith saga was a war crimes trial masquerading as defamation proceedings.
This case has been troubling from the beginning. That an Australian soldier who has served the
country in overseas combat, not least one decorated with the highest possible recognition that could be
conferred on behalf of the nation, has been subjected to a public destruction in the way he is, is
profoundly disturbing.
It is true Roberts-Smith initiated this defamation action, but it has turned out to be an unfair war
crimes trial.
My argument is simple. The evidence adduced in the defamation proceedings so far confirms what the
public already knows or assumed: Ben Roberts-Smith committed acts of killing in war. There is no
dispute Roberts-Smith committed killings in Afghanistan. Indeed, it is for killing that he earned his
Victoria Cross. But killing in wartime service is lawful and is not murder.
The respondent media claimed Roberts-Smith committed killings in Afghanistan amounting to war
crimes. They have presented witnesses, including former special forces soldiers who served with
Roberts-Smith, who support the allegations against him. But this testimony only confirms the truth
of killing. It does not and cannot confirm the truth of murder.
In January 2019, Roberts-Smith brought proceedings for defamation against Fairfax Media, a
subsidiary of Nine Entertainment, for a series of reports that made serious claims against
Roberts-Smith, including the grave claim of having committed war crimes in Afghanistan. The claims
also related to alleged domestic violence in Australia.
There is no doubt the reports were defamatory of his reputation. The question in defamation
proceedings is whether the reports were legally justified. The media respondents are basing their
defence against Roberts-Smith’s case on the ground of truth.
But this is an impossible defence. And it exposes the absurdity of legal proceedings seeking to establish
the truth of criminal wrongdoing in a civil court. For starters, how could the truth of murder – a crime
which requires guilt to be established beyond reasonable doubt – be proven in a civil court, which
adjudges truth in defamation proceedings on the balance of probabilities? Essentially, Roberts-Smith is
at risk of being found guilty of murder on the balance of probabilities.
Whatever truth emerges from the evidence being presented to Justice Anthony Besanko in the Federal
Court, plainly, it cannot be the truth of murder.
Therefore the evidence presented to the court seeking to establish Roberts-Smith’s war crimes is
redundant.
It can never amount to truth because Roberts-Smith was an Australian soldier serving in lawful
combat. Witnesses, including his fellow soldiers, the investigating media and we the interested public
may find these killings unnecessary, questionable and morally repugnant, but we cannot say they were
unlawful. Roberts-Smith and all serving soldiers must be able to rely upon the lawfulness of their
killing when serving in combat. If there are grounds showing that soldiers have gone beyond lawful
conduct and committed war crimes, then there are laws and procedures that govern such circumstances
and soldiers can and should be prosecuted under them.
In my view, the core issue facing this case is a question of law, not fact. The question of law is: can a
publisher that accuses a soldier of murder or war crimes during lawful war service rely on a defence of
truth in response to a defamation action?
My point is that if Roberts-Smith is alleged to have committed war crimes, then he should be
prosecuted and his innocence or guilt determined by appropriate war crime proceedings. In the absence
of war crime charges and convictions, Roberts-Smith and any soldier who serves the country should be
able to rely on the presumption that their killing in combat was lawful. This means their reputations
and honour should not be impugned by public reportage that purport to present truths that have never
been established according to the proper procedures of military justice. When they are impugned, then
they should be entitled to redress in the civil courts for defamation.
I have read the heavily redacted report of the Brereton Inquiry. The report produced by Major General
Paul Brereton in October 2020 for the Inspector-General of the Australian Defence Force sets out
disturbing findings indicative of misconduct by special forces soldiers serving in Afghanistan, and
potential war crimes.
The case of Roberts-Smith was likely canvassed in the Brereton report but, because of the appropriate
redactions, this cannot be confirmed. Brereton made a number of recommendations, the principal
being that 23 cases of alleged unlawful killings by 19 Australian soldiers should be investigated. The
recommendation was that these investigations be undertaken by the Australian Federal Police. Any war
crimes prosecutions ultimately require initiation by the Commonwealth Attorney-General.
The campaign in Afghanistan turned out to be a disaster, with the US and its allies, including
Australia, cutting and running from what in the end was an ignominious defeat. It would be a strange
result indeed if Roberts-Smith is found to have committed war crimes in civil proceedings, as the final
wash-up of that long and ill-fated campaign.
Which currently serving or future serviceman or woman would serve our country in combat knowing
that any killing in which they are involved will not only be subject to the proper laws of war and
military justice, but also trial by media?
The investigating media are in a tricky position. They must not be restrained in their investigation of
any aspect of the conduct of war. But they must be careful in how they present their investigations to
the public insofar as the reputations of individual combatants are concerned. The presumption that
soldiers undertaking killing in war are engaged in lawful conduct is one that should only be set aside
when the law governing war crimes is properly invoked and the accused found guilty. This is the least
that servicemen and women should be assured of by the nation that sends them to war.
It is not necessary to feel sympathy for Roberts-Smith or to believe he is a soldier or man of good
character in order to accept my argument here. My concern is with the principle that persons who have
served in our armed forces be dealt with fairly in relation to their service on the country’s behalf.
The court should rule that the media respondents cannot avail themselves of truth as a defence to their
accusations that he committed war crimes in Afghanistan. Whether Roberts-Smith or any other
special forces personnel are prosecuted for their conduct in Afghanistan is a matter for the process
recommended by the Brereton Inquiry.
Note: Ben Roberts-Smith rank is/was Corporal, all of the innuendo regarding his alleged bullying and murder was overseen by the established Army chain of command that in all reality cannot plead ignorance regarding these supposed incidents, if they occurred as claimed by some.
The responsibility stops there, and should never have reached a civil court.