A new analysis examines how Australia's approach to investigating alleged war crimes in Afghanistan—including the Ben Roberts-Smith case—differs from international norms, SBS reports.
The comparison reveals unique aspects of Australia's military justice system and raises questions about accountability for alleged misconduct during the 20-year Afghanistan deployment.
Mate, this matters because Australia positions itself as a rules-based order champion in the Pacific. How we handle our own alleged war crimes affects our credibility on human rights and international law—especially as we criticize China and others in the region.
The Brereton Report, released in 2020, found credible evidence that Australian special forces committed 39 unlawful killings during the Afghanistan war. The report recommended criminal investigations into specific incidents and individuals.
Ben Roberts-Smith, Australia's most decorated living soldier, became the highest-profile figure linked to these allegations. He sued for defamation after media reports alleged he committed war crimes. The Federal Court found, on the balance of probabilities, that he committed murder in Afghanistan.
But here's what makes Australia's approach unusual: No criminal charges have been laid against any special forces soldier for Afghanistan war crimes, despite the Brereton Report's findings. The investigations are ongoing, but years have passed without prosecutions.
Other countries handle similar situations differently. The United Kingdom established the Iraq Historic Allegations Team to investigate alleged war crimes from the Iraq War. The United States has prosecuted service members for unlawful killings, though critics argue enforcement is inconsistent. International Criminal Court investigations proceed independently of national jurisdictions.
Australia's military justice system operates under unique constraints. Evidence gathered in combat zones is difficult to secure. Witnesses may be unreachable or unreliable. Legal standards for criminal prosecution are high. Defense lawyers argue that investigations have taken too long, compromising defendants' rights to timely trials.
But prolonged investigations without prosecutions raise credibility questions. If the evidence supports criminal charges, why haven't they been laid? If the evidence is insufficient, what does that say about the Brereton Report's findings?
The geopolitical context matters. Australia regularly criticizes China's human rights record, particularly regarding Xinjiang and Hong Kong. Beijing responds by pointing to Australia's Afghanistan record. That's whataboutism, but it's effective propaganda.
Pacific island nations watch how Australia handles accountability. If Canberra lectures others about human rights while failing to prosecute alleged war crimes by its own forces, that damages regional credibility.
The Roberts-Smith defamation case established civil findings, not criminal convictions. Civil standards of proof differ from criminal standards. The Federal Court found, on the balance of probabilities, that murders occurred. But criminal prosecution requires proof beyond reasonable doubt—a higher bar.
That legal distinction is important, but to critics and international observers, the lack of criminal charges looks like impunity. Australia can't claim to uphold international law while failing to prosecute credible allegations of war crimes by its own forces.
