Will Roberts-Smith be charged with War Crimes?

Ben Roberts-Smith

NOTE: The following information contains untested claims which are denied by the subject of the reporting. This article has been written for purpose of reviewing the law as it relates to a potential prosecution for war crimes. In no way does it suggest the allegations relating to Mr Roberts-Smith are either truthful or accurate.

Some of you may have read The Age’s Nick McKenzie and 9’s Chris Masters report detailing allegations of war crimes committed by the Victoria Cross winning soldier Ben Roberts-Smith. 

The allegations relate to a period between 2006 and 2012 whilst Roberts-Smith was on rotation as part of Australia’s military deployment to Afghanistan.

Who is Ben Roberts-Smith?

Roberts-Smith has been described as the most decorated soldier in the Commonwealth. A former Special Air Service (‘SAS’) member he served in the Australian army between 1996 and 2013.

Prior to being awarded the Victoria Cross as a result of his actions during an assault on the Afghan village of Tizak in 2010, he had already picked up the Medal for Gallantry in 2006.

On Deployment

While already accomplished, winning the VC was the real prize for Roberts-Smith. Not only did it lead to instant national stardom, it was financially lucrative.

After winning the VC Roberts-Smith was sought after by senior executives throughout corporate Australia who were keen to hear from a highly polished and physically imposing former SAS solider who sought out and killed the ‘enemy’.

Just who the ‘enemy’ was is now the subject of intense scrutiny.  

According to some, it may have been anyone unlucky enough to encounter a man with a willingness to kill with impunity and believed the laws of armed conflict didn’t apply.

To others, such as blogger Michael Smith, the claims are just adisgraceful effort’ and a ‘vindictive’ beat up by FairFax Media.

After leaving the defence force, in 2013 ‘Roberts-Smith was awarded Australian Father of the year and appointed chairman of the Australia Day Council.

During this time he helped pick Rosie Batty as ‘Australian of the year’ presenting the award to her on stage.

Rosie Batty Wins Australian of the year.

He was also made the deputy chairman of the Prime Minister’s defence mental health committee and veterans’ employment committee. He became the public face of a campaign against “one punch” violence and the “Stay Kind” campaign.

Impressed by his credentials, In 2015, Roberts-Smith also took a role as a regional manager of the Seven Network. In 2016, he was promoted to the position of General Manager responsible for Brisbane and the regions.

Naturally, given his high profile, immediately following the publication by Nine, Roberts-Smith received a swag of support from key public figures, including family violence campaigner Rosie Batty and former leader of the Federal Liberal Party Brendan Nelson, now head of the Australian war memorial. 

Even his boss, head of the Seven network, billionaire Kerry Stokes came out to bat for him with respect to a separate allegation of domestic violence.

Personally, I’ve found some of the supportive commentary a bit concerning given the vast bulk of the allegations are yet to be tested in front of a tribunal of fact.

It’s a situation which may come back to bite, particularly for the likes of Brendan Nelson, whose indignant statements in defence of Roberts-Smith are sure to be revisited should any of the allegations be substantiated. As was recently highlighted by The Age’s Michael Bachelard

Defamation

Since the allegations were publicly aired – subsequent reporting has focused almost exclusively on defamation action taken against the publisher.

This is becoming a bit of a sad trend. A huge story breaks & the predictable defamation action comes along and metamorphises into the bigger story.

However, unlike the case of Rebel Wilson, or the ongoing defamation trial involving Geoffrey Rush, the claims swirling around Roberts-Smith aren’t going anywhere. Far from it.

Firstly, they are subject to a Defence inquiry and simultaneously being investigated by the Australian Federal Police. Secondly, if it’s found they have substance (which its likely they will) – Roberts-Smith may find himself charged with war crimes.

Adding to the matrix of issues, Nine has unequivocally stated it intends to aggressively defend the journalist’s reporting. A good thing. 

In responding to Roberts-Smith statement of claim filed in the Australian Federal Court, Nine denied the imputations argued by Roberts-Smith and in the alternative argued that it intends to rely on the defence of truth.

That is, Nine is prepared to argue they can prove the allegations are true. That gives us a clear indication we have a lot more information to come.

I predict, much like has happened in the case of creepy Craig McLachlan, Roberts-Smith’s claim will be halted while criminal proceedings take place.  

Roberts-Smith for his part has called the allegations ‘gossip’ – which given their specificity is a strange line to take.  

What makes this reporting so significant? 

Put simply, if the allegations are substantiated through a formal investigation, we may see the first ever Victoria Cross winner charged with war-crimes. If found guilty some of the applicable offences carry penalties which range from 10 years to life imprisonment.

How can this happen?

It can happen easily, as I’ll explain below. And, judging by the nature of the allegations and the detail of the source reporting – it likely will. 

Before I go into the ins and outs of the legal process – I’ll first detail the key allegations in brief.

The Allegations

The specific allegations relating to Roberts-Smith are alleged to have occurred while he was on active military duty in Afghanistan between the years of 2006 to 2012.

Note: There are other allegations against Roberts-Smith that I have chosen not to cover as they relate to matters other than ‘war crimes’.

  • Murder 1 – 2009 ‘Blooding the rookie’

It has been alleged Roberts-Smith was present when an order was given by his immediate commander that an unarmed civilian be shot and killed by a new SAS solider who had only recently joined his patrol.

It’s further alleged that Roberts-Smith (and others) made various prior comments indicating the new rookie needed to be ‘Blooded’ – A term said to describe initiating a person in the practice of killing.

The civilian was placed on his knees and shot in the back of the head. Robert-Smith is accused of being present when the order was given. As second in command, by omitting to raise an objection or intervene to stop the act he would be held complicit in the murder of a civilian.

  • Murder 2 – 2009 – Prosthetic leg allegation:

After the completion of a mission involving a compound, Roberts-Smith is accused of carrying an unarmed Afghan man with a prosthetic leg outside of the compound, shooting and killing him with a F89 LSW machine gun.

The man’s prosthetic leg was taken back to SAS headquarters in Perth, fashioned into a drinking vessel and hung behind the bar. It is not suggested that the act of taking the prosthetic was carried out by Roberts-Smith himself. Only that it occurred.

  • Assault of unarmed Afghan Male –  March 2010

A person of interest was being arrested by two SAS soldiers. He was sitting cross-legged in a carpeted room in the compound and was not armed. The two officers were struggling to tie plastic ties around his wrists because he had moved himself into a foetal position and was making a whimpering sound.  

He was not displaying any sign of violence or aggression. It is alleged Roberts-Smith entered the room wearing kevlar gloves, got down on one knee and started to assault the man – first by punching the man in the face 3 times, and secondly, by kneeing the man in the abdominal area 3 of 4 times. The two SAS present are alleged to have remarked, “Whoa, whoa, whoa what are you doing? Get out of here we are looking after this!” Roberts-Smith is alleged to have then left the room.

‘That’s how it’s gonna be’ – Statement of intent

It has been alleged that in or about May 2012 Roberts-Smith and the troop of which he was a member was engaged in a training exercise at the Lancelin Defence Training Area, Perth. the exercise involved a scenario that a compound had been cleared and a detainee had been taken.

At the conclusion of the exercise, Roberts-Smith is alleged to have taken a new member of the troop who was preparing for his first deployment to a mock detainee who was squatting on the floor.

It is alleged that Roberts-Smith provided instruction to the new member – “kill him”. The new member, although taken aback by the request, simulated the shooting, using the words “bang”.

It is then alleged that Roberts-Smith grabbed the new member by the shoulder and said “You good with that? Because that’s how it’s gonna be when we get over there.”

  • Unlawful Assault  – August 2012  

forcefully pushed a man’s head into the mud wall of the compound one or two times – during questioning.

  • Murder 3 – September 2012 – Execution of an unarmed Afghan

During what is known as the Darwan mission, a member of an overwatch team noticed what is called a ‘squirter’ (being someone who flees when soldiers approach) exit a compound. Roberts-Smith allegedly tracked the man, who was not known to be unarmed. Finding the man crouching in rocks by the Helmand River.

Roberts-Smith is alleged to have stood over the man and shot him in the face. It is further claimed that the force and proximity of Roberts-Smith led to his brain matter being scattered over Roberts-Smith face, including entering his mouth.

  • Murder 4 – Killing of Ali Jan

Afghan male who had been detained during the same operation. Jan was handcuffed – placed at the edge of a cliff – forced into a kneeling position. Roberts-Smith is alleged to have kicked him hard in the midriff causing him to fall backward over the cliff and land in a dry creek bed below.

 The impact of the fall to the dry creek below was allegedly so significant that it knocked Ali Jan’s teeth out of his mouth. After inspecting Jan at the base of the creek bed, its alleged that Roberts-Smith ordered his execution. It is then alleged that a false radio call was made – indicating that a ‘spotter’ had been killed. 

  • Murder 5 – October 2012

A detained Afghan male being held in a compound. Weapons were discovered behind a hidden wall. The detainee was unarmed, not a threat or exhibiting any signs of violence. Roberts-Smith is alleged to have ordered the Afghan security forces, in company of the SAS, to kill the detained man. The order was then carried out by the Afghan partner and the man was shot between 4-6 times

A detained Afghan male being held in a compound. Weapons were discovered behind a hidden wall. The detainee was unarmed, not a threat or exhibiting any signs of violence. Roberts-Smith is alleged to have ordered the Afghan security forces, in company of the SAS, to kill the detained man. The order was then carried out by the Afghan partner and the man was shot between 4-6 times

  • Murder 6 – October 2012

While out on patrol its alleged that Roberts-Smith said in refence to what’s known as a kill board (A count of how many persons killed by SAS soldiers) “Hey fellas, we’re on 18, we need two more to get to 20”. During this time it has been expressed by another officer that the units kill count was too high during rotation 18.

During the patrol a Toyota Hilux was intercepted by a number of members of the troop, including Person 16. The Hilux contained four Afghan males. Including a male of approximately 15 to 18 years old. The men were handed over to Roberts-Smith patrol. Witnesses noted that one of the young men was visibly nervous and shaking. A radio communication was made at this time relaying as message that there were two ‘EKIAs’ 

Two days later, another solider asked Roberts-Smith, ‘what happened to the young bloke who was shaking like a leaf?’ – Roberts-Smith is alleged to have replied, “I shot that c*** in the head. [Person 15] told me not to kill any c*** on that job so I pulled out my 9mm and shot him in the head. It was the most beautiful thing I’ve ever seen.”

Australia Military Justice System

The Defence Force Discipline Act (‘DFD Act’) is the primary legislation which governs Australia’s military justice system.

The Australian Military has its own separate system of justice and offences under DFD Act extend extraterritorially.

The ADF also has its own courts and since 1992 has run its own prison located at Holsworthy barracks outside of Sydney

ADF offences are prosecuted by the Director of Military Prosecutions, who operate in a similar manner to their civilian counterparts in State and Federal Departments of Public Prosecutions.

The DFD Act breaks down offences into several categories, but is limited, in that the most serious offence it deals with is assault.

War Crimes?

Jurisdiction:

For more serious crimes such as that of Murder, s61 of the DFD Act introduces what’s called Jervis Bay Territory offences.

Jervis Bay Territory is under Commonwealth Jurisdiction and draws in part from the common law of the ACT.

Section 4A(1) of the Jervis Bay Territory Acceptance Act provides that the laws in force in the ACT, so far as they are applicable to the Jervis Bay Territory and are not inconsistent with an Ordinance of the Commonwealth in relation to the Jervis Bay Territory, are in force in the Jervis Bay Territory as if the Jervis Bay Territory formed part of the ACT.

In essence, through this mechanism, criminal offence provisions of the Cth Criminal Code – (including war crimes) apply to ADF members (and Civilians).

Section 61(2)a and 61(3)a – of the DFD Act extends liability to ADF members regardless of where they are in the world.

“Territory offence” means:

                     (a)  an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than this Act or the regulations; or

                     (b)  an offence punishable under any other law in force in the Jervis Bay Territory (including any unwritten law) creating offences or imposing criminal liability for offences.

Offences & The Law

Is the conflict of an International character?

Its important to point out from the outset that the war in Afghanistan is considered to be a war that is not of an international character. This matters, because both the Geneva convention and the Cth Criminal Code have specific provisions dealing with this kind of conflict.

Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.

  • First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.
  • Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization. 

This differs from what would be considered an international armed conflict.

For an international armed conflict to exist, there must have been a resort to armed force involving at least two states. Unlike for non-international armed conflicts, there is no requirement for the violence to reach a certain threshold for international armed conflicts.

Geneva Conventions:

It’s worth considering Australia is a signatory to the 3rd and 4th Geneva Conventions. As is Afghanistan.

The 3rd Geneva convention primarily relates to the treatment of prisoners of war. While the 4th directs its attention to the protection of civilians.

Relevant to the 3rd Geneva convention with respect to the allegations enumerated above are articles 3 and 13.

Art 3, deals with persons who are not taking part in hostilities.   

Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions: 
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for. 
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

Art 13, is a general provision that deals with the treatment of prisoners.

Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.

Relevant to the 4th Geneva convention article 3 mirrors that detailed under article 3 of the 3rd convention.

Commonwealth Criminal Code:

Chapter 8 of the Cth Criminal code contains ‘Offences against humanity and related offences’

Subdivision F and G deals with, ‘War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict’

Relevant to the allegations above are the following offences:

S 268.70 – War Crime – Murder  – Life in imprisonment

268.72  War crime—cruel treatment – 25 years.

268.74  War crime—outrages upon personal dignity – 17 years

268.76  War crime—sentencing or execution without due process – 10 years to Life in imprisonment depending on culpability.

S 268.70 – War Crime – Murder

             (1)  A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator causes the death of one or more persons; and

                     (b)  the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

                     (d)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for life.

          (1A)  Subsection (1) does not apply if:

                     (a)  the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

                     (b)  at the time the attack was launched:

                              (i)  the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

                             (ii)  it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

             (2)  To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:

                     (a)  a person or persons who are hors de combat; or

                     (b)  civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.

             (3)  For the purposes of this section, the expression members of an organised armed groupdoes not include members of an organised armed group who are hors de combat.

268.72  War crime—cruel treatment

             (1)  A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

                     (b)  the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

                     (d)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for 25 years.

          (1A)  Subsection (1) does not apply if:

                     (a)  the infliction of the severe physical or mental pain or suffering on the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

                     (b)  at the time the attack was launched:

                              (i)  the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and

                             (ii)  it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

             (2)  To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:

                     (a)  a person or persons who are hors de combat; or

                     (b)  civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.

             (3)  For the purposes of this section, the expression members of an organised armed groupdoes not include members of an organised armed group who are hors de combat.

268.74  War crime—outrages upon personal dignity

             (1)  A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator severely humiliates, degrades or otherwise violates the dignity of one or more persons (whether or not the person or persons are alive); and

                     (b)  the person or persons are not taking an active part in the hostilities; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and

                     (d)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for 17 years.

             (2)  To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to a person or persons who:

                     (a)  are hors de combat; or

                     (b)  are civilians, medical personnel or religious personnel who are not taking an active part in the hostilities; or

                     (c)  are dead.

268.76  War crime—sentencing or execution without due process

             (1)  A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator passes a sentence on one or more persons; and

                     (b)  the person or persons are not taking an active part in the hostilities; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and

                     (d)  either of the following applies:

                              (i)  there was no previous judgment pronounced by a court;

                             (ii)  the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and

                     (e)  if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and

                      (f)  the perpetrator knows of:

                              (i)  if subparagraph (d)(i) applies—the absence of a previous judgment; or

                             (ii)  if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and

                     (g)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for 10 years.

             (2)  A person (the perpetrator) commits an offence if:

                     (a)  the perpetrator executes one or more persons; and

                     (b)  the person or persons are not taking an active part in the hostilities; and

                     (c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and

                     (d)  either of the following applies:

                              (i)  there was no previous judgment pronounced by a court;

                             (ii)  the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and

                     (e)  if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and

                      (f)  the perpetrator knows of:

                              (i)  if subparagraph (d)(i) applies—the absence of a previous judgment; or

                             (ii)  if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and

                     (g)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for life.

             (3)  Strict liability applies to paragraphs (1)(e) and (2)(e).

             (4)  To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:

                     (a)  a person or persons who are hors de combat; or

                     (b)  civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.

 

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