Australia’s most decorated soldier has lost a multi-million dollar defamation case against three newspapers who accused him of war crimes, paving the way for greater “urgency” in pursuing others, say experts.

Victoria Cross recipient Ben Roberts-Smith unlawfully killed unarmed prisoners and committed other war crimes in Afghanistan, a judge ruled on Thursday in Sydney’s federal court.

Judge Anthony Besanko said the articles published in 2018 by The Age, The Sydney Morning Herald and The Canberra Times were substantially true about a number of war crimes committed by the 44-year-old former Special Air Service (SAS) regiment corporal who is now a media company executive.

He said four of the six murder allegations, all denied by Mr Roberts-Smith, were substantially true.

These included kicking an unarmed, handcuffed farmer off a cliff into a riverbed where an SAS colleague shot the farmer dead in 2012, and killing a prisoner who had a prosthetic leg by firing a machine gun into the man’s back in 2009. The prosthetic leg was then kept as a trophy to use as a drinking vessel.

The judgement not only marks a significant fall from grace for Australia’s most famous living war veteran but also has wider implications for those who were deployed to Afghanistan between 2001 and 2021.

Australian journalists Nick McKenzie, second left, and Chris Masters, right, walk with their legal team from the Federal Court in Sydney, Australia, Thursday, June 1, 2023. Australia???s most decorated living war veteran unlawfully killed prisoners and committed other war crimes in Afghanistan, a judge ruled Thursday in dismissing the claims by Victoria Cross recipient Ben Roberts-Smith that he was defamed by media. (AP Photo/Mark Baker)
Australian journalists Nick McKenzie and Chris Masters who investigated the allegations against Mr Roberts-Smith outside the Federal Court in Sydney (Photo: Mark Baker/AP)

Elizabeth Brown, doctoral researcher at the war crimes research group at King’s College London, told i: “This whole palaver has not ended well for Ben Roberts-Smith.

“It’s been heavily scrutinised in the press and looked on by the criminal investigation team.

“It would be very surprising to me if Mr Roberts-Smith was not interviewed and there are other people within this case who are likely implicated.

“The fact he has been stripped of this glory in such a public way, it’s going to have implications and ramifications in how the Australian military is seen and the way Australia sees itself on the global stage.”

Mr Roberts-Smith is one of several Australian military personnel under investigation by federal police for alleged war crimes in Afghanistan.

The first criminal charge for an alleged illegal killing in Afghanistan was made in March when former SAS trooper Oliver Schulz was charged with the war crime of murder in the death of an Afghan who was shot in 2012 in a wheat field in Uruzgan province.

Ms Brown said: “This may well have positive implications for the ongoing investigation.

“The case is likely to attract some political attention which could mean more urgency whether that is in providing more infrastructure or funding to get this investigation done.”

Members of the investigation team were, she said, known to have attended some of the hearings in the defamation case and will have heard the evidence given.

“We don’t know whether it’s high enough to meet the criminal burden of proof,” she said. “But it’s going to help it along – it’s not going to hurt.”

The burden of proof in civil cases is on balance of probabilities whereas in criminal cases it must be beyond reasonable doubt.

Peter Bartlett, who was the lead lawyer acting for the media in the court case in Australia, told i the result was “an enormous victory” and “a very important case for Australia, for freedom of speech and what the public knows”.

After a 110-day hearing which saw 21 SAS soldiers give evidence, he said the findings were significant.

“There is still investigations being carried out as to whether Ben Roberts-Smith, as well as others, will be charged with war crimes,” he said.

But he added: “I think the Australian public would admire those soldiers who got on the witness box and told the truth.

“Some people believe what happened in Afghanistan should stay in Afghanistan.

“Certainly, those soldiers who gave evidence, surprised a lot of people by giving evidence.

“It may encourage more soldiers potentially to come forward.”

It is a sentiment shared by Frank Ledwidge, senior lecturer in law and strategy at the University of Portsmouth and a former military intelligence officer.

“I think what will happen is anybody with common sense will see the way the wind is blowing,” he told i.

“They would be thinking about having a chat with the investigators.

“I think the result may be more people coming forward in Australia and probably in the UK.”

The Ministry of Defence established an independent inquiry into allegations of wrongdoing by the British Armed Forces in relation to their conduct of deliberate detention operations in Afghanistan last December.

Chaired by Lord Justice Haddon-Cave, it is investigating alleged activity during the period mid-2010 to mid-2013.

Although not a turning point in the prosecution of war crimes in Afghanistan, Mr Ledwidge said: “It’s part of a process of demystifying the special forces.

“What may happen as a result of the Haddon-Cave review, there will be really strong calls for more accountability and oversight.”

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