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Ben Roberts-Smith's alleged war crimes: 'Higher-ups' off the hook

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Former SAS soldier Ben-Roberts Smith had his civil defamation case against senior reporters dismissed in court (Screenshot via YouTube)

It appears no action is being taken against more senior officers who had the responsibility of command over Ben Roberts-Smith during his alleged war crimes in Afghanistan, writes Belinda Jones.

*Also listen to the audio version of this article on Spotify HERE.

ON MONDAY 5 June 2023, the complete 736-page judgement by Justice Anthony Besanko in theBen Roberts-Smith civil defamation trial was published. 

In his damning judgement, Justice Besanko said:

'I do not accept the applicant (Ben Roberts-Smith)and Persons 5, 29, 35 and 38 as honest and reliable witnesses.'

Besanko, in dismissing the civil defamation case instigated by Roberts-Smith, found 'on the balance of probabilities'  that journalists Nick McKenzieChris Masters and David Wroe had proved the allegations they published against the former SAS soldier, which included complicity in the murder of six civilians.

It's important to note this is not a criminal finding of guilt but a determination on the civil standard of the “balance of probabilities”.

This vindication came after years of fighting by the journalists to clear their names and was a win for journalistic integrity.

Roberts-Smith’s legal case appears to have the financial backing of Channel 7 billionaire media mogul Kerry Stokes, who now likely faces a hefty legal bill of up to $35 million.

Roberts-Smith was employed in a senior position by Seven West Media at the time he launched the civil defamation claim, which goes some way to explain why Stokes financially backed this defamation case.

Stokes is also the former two-time chair of the Australian War Memorial (AWM) in Canberra. Appointments to this role are made by the governor-general and Stokes was last appointed by Governor-General David Hurley in 2021.

The WA media mogul is decidedly media shy despite his high public profile and regularly declines requests for interviews, often releasing statements through a spokesperson instead. 

One such recent statement said:

'Seven and The West produce robust reporting in both television and print, with the highest standards of journalism.'

This case is not just about Ben Roberts-Smith: current Governor-General David Hurley was Chief of the Defence Force (CDF) from 4 July 2011 until his retirement on 30 June 2014.

This time period covered several of the events raised in the Roberts-Smith defamation trial, while some events happened prior to David Hurley becoming CDF.

In 2016, the Inspector-General of the Australian Defence Force Afghanistan Inquiry was established:

'... after rumours and allegations emerged relating to possible breaches of 'The Law of Armed Conflict' by members of the Special Operations Task Group in Afghanistan over the period of 2005 to 2016.' 

The report from the Inquiry is commonly referred to as the 'Brereton Report'

Retired army officer Stuart McCarthy, in a lengthy Twitter thread on 5 June 2023, quoted a PhD paper by military lawyer Glenn Kolomeitz 'on the applicability of Rome Statute of the International Criminal Court Article 28 under Australian laws', as published by the University of Adelaide. 

Kolomeitz describes the 'Brereton Report [in regard to] command responsibility at HQ JTF 633 and higher [as] manifestly flawed'.

'Rome Statute Article 28' is a provision of the International Criminal Court, which refers to the 'Responsibility of commanders and other superiors'.

Wrote McCarthy: 

'Under this law, a commander is criminally responsible for crimes committed by armed forces under his or her effective command and control...'

On 8 June 2023, the ABC published an article headlined:

'Ben Roberts-Smith alleged to have directed the killing of elderly imam in Afghanistan.' 

This event allegedly took place in the village of Sola, in Uruzgan Province, on 31 August 2012. 

According to The Sydney Morning Herald on 4 September 2012, then-Defence Minister Stephen Smith said he:

"... rejected angry claims by the Afghan President, Hamid Karzai, that an Australian raid that resulted in the deaths of two Afghan villagers was unauthorised.' 

It's likely, though, not enough time had elapsed for a thorough investigation to have been carried out when Smith rejected these claims.

If Hurley, as then-CDF, has a case to answer under 'Rome Statute Article 28' for “command responsibility”, arguably, so does then-Defence Minister Smith under 'Rome Statute Article 28'  for “superior responsibility”.

For context, the raid on Sola came 48 hours after three Australian soldiers were shot dead on 29 August 2012 by a rogue Afghan soldier known as Hekmatullah.

One month prior, Perth-based SAS soldier Sergeant Blaine Diddams had been killed in Uruzgan’s Chora Valley on 2 July 2012.

It is likely then-CDF David Hurley would have been aware that the tight-knit Perth-based SAS soldiers were grieving the recent loss of their fallen SAS brother-in-arms and the loss of three soldiers from the 3rd Battalion Royal Australia Regiment (RAR) and 6th RAR at the time of the ill-fated raid on Sola.

Under 'Rome Statute Article 28' and respective sections of the Criminal Code Act 1995, according to McCarthy:

'... a commander is criminally responsible for crimes committed by forces under his or her effective command and control, as a failure to exercise proper control, where: the commander knew or "should have known" that the forces were committing or about to commit such crimes.'

McCarthy notes that:

... the standard is the commander "should have known" rather than necessarily having had actual direct knowledge... the "knew or should have known" standard of fault was changed in Australia’s implementation of "Article 28" into Australian law to a standard of “recklessness”.

 

Recklessness imposes a different standard of culpability, making achieving convictions for command responsibility more difficult than is the intention of command responsibility in international law.

McCarthy further states: 

'No action whatsoever is being taken against more senior officers... including [those] routinely decorated for distinguished command and leadership in action.'

Then-CDF David Hurley got the highest decoration of them all by becoming Australia’s Head of State.

These allegations of war crimes also bring a new irony to the fact Governor-General David Hurley successfully lobbied PM Scott Morrison for $18 million to establish The Australian Future Leaders Foundation. This largesse was rescinded when the Albanese Government won office in 2022.

Meanwhile, the whistleblower on all these alleged war crimes, David McBride, awaits trial for exposing this sordid tale. 

Perhaps this has never really been just about Ben Roberts-Smith — but about protecting the ADF command, the Parliament and its Executive, the Governor-General, and by default, the King he now represents.  

So, all the way to the very top.

*This article is also available on audio here:

You can follow IA columnist Belinda Jones on Twitter @belindajones68.

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