Australia’s most decorated living veteran, Ben Roberts-Smith, did not apply for bail when the war crime murder charges against him were listed in a Sydney court Wednesday.
Roberts-Smith was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.
The charges follow a military report released in 2020 that found evidence elite Australian Special Air Service and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.
The allegations against Roberts-Smith relate to the deaths of five Afghan people who died in 2009 and 2012 while he served in Afghanistan as an elite SAS corporal. Police allege he either shot his victims or ordered a subordinate to shoot them.
Police said he had been charged Tuesday with five counts of war crime murder. But the charges laid in court Wednesday were were two counts of war crime murder and three counts of aiding or abetting a war crime murder. All charges carry the same potential maximum sentence of life in prison.
Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person who is not taking an active part in the hostilities, such as a civilian, prisoner of war or a wounded soldier.
Roberts-Smith, 47, spent the night in jail after he was arrested at the Sydney Airport on Tuesday morning, and he did not appear in court either in person or by video link Wednesday.
His lawyers did not enter pleas to the charges or apply for his release on bail. The case was adjourned until June 4.
A civil court has already found similar allegations against Roberts-Smith credible in a defamation suit he brought after newspapers published articles in 2018 accusing him of a range of war crimes. In 2023, a federal judge rejected Roberts-Smith’s claims and ruled that he likely killed four noncombatants unlawfully in 2009 and 2012.
But while the civil court found the war crimes allegations were mostly proven on a balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt.
Roberts-Smith is the second Australian veteran of the Afghanistan campaign to be charged with a war crime.
Former SAS soldier Oliver Schulz has pleaded not guilty to a charge of war crime murder. He is accused of shooting Afghan man Dad Mohammad three times in the head in an Uruzgan province wheat field in 2012.
Prosecutors and defense lawyers said Schulz’s trial is unlikely to be held before 2027.
