{"id":608722,"date":"2026-04-15T15:31:13","date_gmt":"2026-04-15T15:31:13","guid":{"rendered":"https:\/\/www.newsbeep.com\/au\/608722\/"},"modified":"2026-04-15T15:31:13","modified_gmt":"2026-04-15T15:31:13","slug":"australias-most-decorated-soldier-charged-with-five-war-crimes-of-murder","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/au\/608722\/","title":{"rendered":"Australia\u2019s \u2018Most Decorated\u2019 Soldier Charged with Five War Crimes of Murder"},"content":{"rendered":"

[Melanie O\u2019Brien<\/a> is Professor of International Law and Deputy Head of School (Research) at the University of Western Australia Law School<\/a>; and visiting scholar with the University of Minnesota Law School\u2019s Human Rights Center<\/a>]<\/p>\n

In June 2023, I wrote here<\/a> about the defamation case relating to the media reporting on allegations of war crimes by Australian soldier Ben Roberts-Smith (\u2018BRS\u2019). The defamation case was completed in 2025, when BRS\u2019s appeal against<\/a> the defamation finding was rejected<\/a>. At the end of that post, I noted: <\/p>\n

\u2018The OSI has said there will be other arrests [of Australian soldiers for war crimes] in the coming year; whether one of those is Ben Roberts-Smith, remains to be seen. Watch this space.\u2019 <\/p>\n

It may have taken more than the year that was anticipated, but the arrest of BRS has occurred.<\/p>\n

On 7 April 2026,
\nBen Roberts-Smith (\u2018BRS\u2019), known
\nas<\/a> one of Australia\u2019s \u2018most decorated\u2019 soldiers, including receiving the
\nVictoria Cross and Medial for Gallantry<\/a>, was arrested and charged with five
\ninstances of the war crime of murder. These charges relate to five separate
\nkilling of individuals in various locations in Uruzgan Province, Afghanistan in
\n2009 and 2012, where BRS served with the Australian Special Forces (Special Air
\nService Regiment, aka \u2018the SAS\u2019). <\/p>\n

Background<\/p>\n

The Australian
\nDefence Force (ADF) had personnel deployed in Afghanistan from 2001 to 2021,
\nengaged in NATO and UN missions. Part of this included the deployment of three
\nSpecial Forces groups including the Special Operations Task Group (SOTG), which
\noperated from 2007 to 2014 as part of the International
\nSecurity Assistance Force<\/a> (ISAF), a multinational mission to enhance
\nsecurity, disrupt the Taliban and target insurgency. <\/p>\n

In November
\n2020, a
\nreport<\/a> commissioned by the Inspector-General of the ADF on allegations of
\nbreaches of international humanitarian law (IHL) by Australian soldiers in
\nAfghanistan was released, known
\nas \u2018the Brereton Report\u2019<\/a>. This report was heavily redacted but alleged 25
\nADF personnel were involved in serious crimes, with 19 directly involved.
\nAllegations including \u2018blooding\u2019 (requiring junior soldiers to kill prisoners
\nto achieve their first kill), \u2018throwdowns\u2019 (planting incriminating evidence on
\nbodies), murder, and cruel treatment. These crimes were ordered by or done with
\nthe full knowledge of patrol commanders, and the report raised concerns of the
\n\u2018warrior culture\u2019 of the SAS, making 143 recommendations to address culture,
\nprevention, and accountability. It has resulted in significant
\ndiscussion of<\/a> and changes to military
\nculture<\/a> in Australia.<\/p>\n

At the same
\ntime, the Office of the Special Investigator<\/a>
\n(OSI) was created, tasked with investigating war
\ncrimes<\/a> allegations in Afghanistan 2005-2016. The OSI sits under the
\nportfolio of the Attorney-General, works with the Australian Federal Police
\n(AFP), and gives briefs of evidence to the Commonwealth Director of Public
\nProsecutions (Cth DPP) where there is sufficient evidence of a crime. Before
\nBRS\u2019s arrest, only one soldier had been charged due to evidence from these
\ninvestigations, Oliver
\nSchulz<\/a>, arrested in March 2023 and charged with the war crime of murder for
\nthe killing of Dad Mohammad in Uruzgan in 2012 (see the documentary episode, \u2018Killing
\nField\u2019<\/a>, for footage of the murder Schulz is charged with). Schulz\u2019s trial
\nis listed for hearing in February 2027.<\/p>\n

BRS Arrest
\nand Charges<\/p>\n

On 7 April, BRS
\nwas arrested at Sydney Airport, taken directly from the plane by federal police
\nofficers. The arrest was followed by a press conference from the AFP and the
\nOSI, and in the afternoon BRS was charged in court with five counts of the war
\ncrime of murder. <\/p>\n

He was charged
\nunder s268.70 of the Commonwealth
\nCriminal Code Act 1995<\/a>, \u2018war crime- murder\u2019:<\/p>\n

(1)\u00a0 A person (the perpetrator) commits an offence
\nif:<\/p>\n

(a)\u00a0 the perpetrator causes the death of one or more persons; and<\/p>\n

(b)\u00a0 the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and<\/p>\n

(c)\u00a0 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<\/p>\n

(d)\u00a0 the perpetrator\u2019s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.<\/p>\n

This provision
\nfalls under Subdivision F of the Criminal Code Act, which provides for
\nwar crimes that are violations of Common Article 3 of the Geneva Conventions
\ncommitted in a non-international armed conflict. The penalty for the war crime
\nof murder is imprisonment for life. <\/p>\n

All allegations
\nrelate to the killing by ADF personnel of persons who were not taking part in
\nhostilities (either civilians or hors de combat), and were detained and
\nunarmed, in the power of the ADF. Two of these charges allege that BRS himself
\nmurdered an individual (one in April 2009 in Karakak and one in October 2012 in
\nSyahchow). <\/p>\n

Three charges
\nallege that BRS committed murder through \u2018aiding, abetting, counselling or
\nprocuring another person to intentionally cause the death of a person\u2019 (in
\nApril 2009 in Karakak, September 2012 in Darwan and October 2012 in Syahchow).
\nThese three charges are alleging that BRS ordered subordinates to kill unarmed,
\ndetained persons. Australia did not adopt the concept of \u2018ordering\u2019 as part of
\nthe amendments to the Criminal Code Act as made after the 2002
\nratification of the Rome Statute of the International Criminal Court (ICC), and
\nthus the concept of \u2018aiding, abetting, counselling or procuring\u2019 is found in
\nSection 11.2 \u2018complicity and common purpose\u2019 under the \u2018General principles of
\ncriminal responsibility\u2019. Prosecutors will have to prove that BRS did aid,
\nabet, counsel or procure the commission of the offence, that the offence was
\ncommitted by the other person, and that BRS intended their conduct would
\nprocure the commission of the offence. This will no doubt be argued based on
\nBRS\u2019 status as a commander.<\/p>\n

Notably, charges
\nhave not been laid under command responsibility, which this author and
\nco-authors have argued<\/a> should be applied, but will be extremely difficult
\nto charge given the unusual phrasing of the provision, which differs from the
\nRome Statute definition (see Section 268.115 of the Criminal Code Act)
\n(see also this
\narticle<\/a> on the knowledge element in the Australian law on command
\nresponsibility and another
\npiece<\/a> also criticising the Brereton Report\u2019s lack of focus on commanders).<\/p>\n

Jurisdiction
\nover Australian soldiers for crimes committed in Afghanistan is provided for
\nunder the Criminal Code Act. The Act allows for \u2018extended geographical
\njurisdiction\u2019, providing for jurisdiction over war crimes, crimes against
\nhumanity and genocide \u2018whether or not the conduct constituting the alleged
\noffence occurs in Australia\u2019 (Section 15.4 Extended geographical jurisdiction-
\ncategory D).<\/p>\n

Prosecutors have
\nbeen given 21 May 2026 as the deadline by which to forward the brief of
\nevidence to the defence team.<\/p>\n

Bail<\/p>\n

Upon charging,
\nBRS was denied bail, with an appearance in Bail Division Court scheduled for
\nthe next day, 8 April. At that virtual court hearing, BRS\u2019 lawyer did not
\nrequest bail, so BRS remains in custody until at least a scheduled bail hearing
\non 17 April 2026. There is also a court hearing set for 4 June 2026. Given his
\nwealth and access to travel (and known
\nfor<\/a> his international travel, including during
\nthe defamation trial<\/a> that he instigated), there is a high likelihood that
\nbail will be refused. <\/p>\n

Indeed, there is
\na presumption against bail for such a serious offence. However, Oliver Schulz
\nwas granted
\nbail<\/a> because the court agreed with Schulz\u2019s barrister that there was \u2018an
\nunacceptable safety risk\u2019 for Schulz in prison, due to a likelihood of being
\nheld in the same prison as Islamic extremists. Thus, Schulz was granted bail,
\nalbeit with strict conditions: a high bail price, surrender of his passport,
\nprohibition on contacting any of his fellow SAS soldiers, barred from
\ncontacting any prosecution witnesses, given a curfew, and required to report to
\npolice daily. He was also required to submit any electronic devices to police
\nfor searching when requested. <\/p>\n

BRS is a far
\nmore high-profile detainee than Schulz, but also a significant flight risk, and
\nhas been charged with five murders. The fact that he did not request bail
\nimmediately on the same \u2018security risk\u2019 grounds as Schulz and is prepared to
\nremain in custody indicates that the \u2018security risk\u2019 argument, if made later,
\nwill be much more difficult to make. It will be interesting to see what the
\ncourt decides on bail at the hearing. <\/p>\n

Future
\narrests?<\/p>\n

The
\ninvestigations are highly complex, in that they involve allegations of serious
\ncrimes committed in a military culture of secrecy, but also significantly
\nbecause the investigators cannot access the crimes scenes or directly contact
\npeople on the ground in Afghanistan due to safety reasons, and do not have
\naccess to forensic evidence such as projectiles or a post-mortem of the victim.
\nThus, the investigations rely on evidence such as third party evidence and ADF
\ncontemporaneous reporting.<\/p>\n

Updates from the
\nOSI have been infrequent, and, due to the nature of criminal investigations,
\nhave provided no details of potential arrests or charges. In February 2023, the
\nOSI revealed it was investigating 40-50 offences and expected to give a brief
\nof evidence to prosecutors by mid-2023. Whether or not this deadline was met,
\nit demonstrates the length of time needed for these investigations. In the BRS
\narrest press briefing, the OSI revealed that it had finalised 39 investigations
\nwith insufficient evidence to bring charges, with 10 more investigations
\nongoing. No further details were provided, but it was stated that if evidence
\nleads to clear evidence of crimes, that charges will be brought. These
\ninvestigations and arrests demonstrate that domestic accountability for war
\ncrimes is a slow and does not always result in a successful road to justice,
\nbut at least some steps are better than none.<\/p>\n

What is certain
\nis that the BRS war crimes trial will be one of the most closely followed trial
\nin Australian history, given the rarity of an Australian being prosecuted for
\nwar crimes but more so the context of the accused being one of Australia\u2019s
\n\u2018most decorated\u2019 soldiers. It will also be part of the canon of the relatively
\nlow number of domestic war crimes trials globally over the last century. The
\narrest and charging of Ben Roberts-Smith certainly shows that no one is above
\nthe law, even the so-called \u2018heroes\u2019.<\/p>\n

\"Print<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"[Melanie O\u2019Brien is Professor of International Law and Deputy Head of School (Research) at the University of Western…\n","protected":false},"author":2,"featured_media":608723,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[64,63,44],"class_list":["post-608722","post","type-post","status-publish","format-standard","has-post-thumbnail","category-australia","tag-au","tag-australia","tag-news"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/608722","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/comments?post=608722"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/608722\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media\/608723"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media?parent=608722"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/categories?post=608722"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/tags?post=608722"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}