Ben Roberts-Smith arrested and facing 5 war crimes charges

Victoria Cross winner Ben Roberts-Smith was arrested on Tuesday and will face five charges of the war crime of murder allegedly committed during the war in Afghanistan.

He was arrested by Australian Federal Police at Sydney domestic airport.

Roberts-Smith, a former Special Air Service corporal who was widely feted as one of Australia’s most decorated modern war heroes, has always maintained his innocence.

The AFP did not name Roberts-Smith.

The Office of the Special Investigator and the AFP said in a statement:

A former Australian Defence Force member, 47, has been arrested and is expected to be charged with five counts of war crime – murder under a joint investigation between the Office of the Special Investigator (OSI) and the AFP.

Roberts-Smith is set to be charged under the Commonwealth Criminal Code. The charges are:

• the war crime of murder, in that he intentionally caused the death of a person, on or about 12 April, 2009, at Kakarak, Uruzgan Province, Afghanistan

• the war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 12 April, 2009, at Kakarak, Uruzgan Province, Afghanistan

• the war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 11 September, 2012, at Darwan, Uruzgan Province, Afghanistan

• the war crime of murder, with another person, in that they intentionally caused the death of a person, on or about 20 October, 2012, in Syahchow, Uruzgan Province, Afghanistan and,

• the war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 20 October, 2012, at Syahchow, Uruzgan Province, Afghanistan.

The maximum penalty for the offence of the war crime of murder is life imprisonment.

Roberts-Smith is expected to appear in a New South Wales court later on Tuesday.

The investigation into Roberts-Smith has been undertaken in a joint operation between the AFP and the Office of the Special Investigator (OSI).

“The joint OSI-AFP investigation began in 2021, and inquiries are continuing,” the statement said.

Prime Minister Anthony Albanese refused to answer any questions about the matter.

One Nation’s Pauline Hanson said she remained “steadfast in my support of Ben Roberts-Smith.

"I will not abandon him like so many other politicians.”

The OSI and AFP are investigating allegations of criminal offences under Australian law related to breaches of armed conflict laws by ADF personnel in Afghanistan between 2005 and 2016.

The joint OSI-AFP investigation has begun 53 investigations involving allegations of war crimes in the Afghanistan conflict by members of the Australian Defence Force.

Of those, 39 are finalised, unless new evidence emerges. In these cases sufficient evidence of a war crime did not exist to support referring a brief to the Commonwealth Director of Public Prosecutions. Another ten investigations are still underway.

One investigation resulted in a former SAS solider being charged with one count of the war crime of murder. This matter is scheduled for trial in the NSW Supreme Court next February.

AFP Commissioner Krissy Barrett told a media conference of today’s arrest: “It will be alleged the man was a member of the ADF when he was involved in the death of Afghan nationals between 2009 and 2012 in circumstances that constitute war crimes under the Commonwealth Criminal Code.

"It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan.

"It will be alleged the victims were detained, unarmed and were under the control of ADF members when they were killed.

"It will be alleged the victims were shot by the accused, or shot by subordinate members of the ADF, in the presence of, and acting on the orders of, the accused.”

Barrett said: “We understand these charges will have an impact on several communities in Australia.

"Whenever I give a press conference, I do not just provide the facts in front of me, but I also address those impacted the most.

"So, I want to now directly address the concerns and questions some may have.

"The alleged conduct related to these charges is confined to a very small section of our trusted and respected ADF, which helps keep this country safe.

"The overwhelming majority of our ADF do our country proud. Today’s charges are not reflective of the majority of members who serve under our Australian flag with honour, distinction and with the values of a democratic nation.

"Today, is a day to rally behind the ADF, and be mindful of the families whose loved ones have died while serving our country.”

Roberts-Smith lost a defamation action he brought against the Nine newspapers. His final appeal in the seven year battle was dismissed mid last year.