Ben Roberts-Smith prosecution expected to test Australia’s war crimes laws, expert says

The criminal prosecution of Ben Roberts-Smith is expected to test Australia’s war crimes legal framework in unprecedented ways, a leading international law scholar says, as the case moves toward a trial. Australia’s most decorated living soldier has been charged with five counts of war crime murder alleged to have occurred during tours in Afghanistan between 2009 and 2012.

Prosecutors allege the victims were unarmed Afghan nationals not taking part in hostilities and were shot either by Mr Roberts-Smith or by soldiers acting under his orders. He has consistently denied the allegations, including throughout a high-stakes civil defamation case against Nine newspapers that he lost in 2023.

He previously lost a bid to challenge the result of that case. Mr Roberts-Smith was granted bail on Friday after a Sydney court found potential risks of him leaving the country or interfering with evidence and witnesses could be managed through strict conditions.

Local Court Judge Greg Grogin said it would likely take years to resolve the matter. Lawyers for Mr Roberts-Smith described the prosecution as “unprecedented and unchartered legal territory.” Donald Rothwell, a professor of international law at the Australian National University, said nothing comparable had come before Australian courts in decades.

“We haven’t had a contemporary modern war crimes trial in Australia for decades,” he said. The charges have been brought under laws updated when Australia ratified the Rome Statute of the International Criminal Court, expanding the domestic framework for investigating and prosecuting war crimes.

Under that framework, Professor Rothwell said, Australia is obligated to prosecute its own citizens for alleged war crimes rather than leave the matter to international bodies. He added that because Australia has established its own investigative and prosecutorial processes, the International Criminal Court would have no jurisdiction over the case, even in the event of an acquittal.

Mr Roberts-Smith is the second Australian serviceman charged under this framework. Former soldier Oliver Schulz was the first and faces trial in early 2027, a timetable that underscores the complexity and length of these proceedings. The Office of the Special Investigator led the investigation into Mr Roberts-Smith alongside the Australian Federal Police, beginning in 2021.

It was one of more than 50 investigations into alleged war crimes in Afghanistan, 39 of which have been finalised. Investigators were unable to access crime scenes, physical evidence, or witnesses on the ground in Afghanistan, and the prosecution is expected to rely heavily on witness testimony.

With a likely years-long path to trial, the case is set to test how Australia’s updated war crimes laws operate in practice and how courts handle complex battlefield allegations within a domestic legal setting.