The Soldier and The Fog of War: The Trial of Australia’s Most Decorated Soldier |
On the morning of April 7, 2026, officers from the Australian Federal Police approached a man stepping off a domestic flight at Sydney Airport and placed him under arrest. The man was Ben Roberts-Smith. Holder of Australia’s highest military honour, former elite special forces soldier, and until recently the most celebrated and decorated living warrior this country had produced. He was charged with five counts of the war crime of murder, each carrying a maximum sentence of life imprisonment.
The arrest sent shockwaves through Australia. And yet, depending on which side of the bitterly divided topic you inhabit, it was either the long-overdue reckoning of a soldier who allegedly committed atrocities on the battlefield, or the final, devastating chapter in what his defenders call the politically motivated destruction of a hero and an innocent man.
Both positions are held with ferocious conviction. And in a country whose legal system enshrines the presumption of innocence – where a person is innocent until proven guilty – the truth of what actually happened in the mountains of Afghanistan more than a decade ago remains, legally speaking, unproven.
Who Is Ben Roberts-Smith?
For readers outside Australia, some context is essential, because the Roberts-Smith story is inseparable from the mythology surrounding it.
Australia has a concept called “the ANZAC spirit”. A near-sacred national identity built around the image of the courageous, self-sacrificing soldier, forged in the disastrous World War One campaign at Gallipoli and burnished through every conflict since. The concept of ‘mateship’, stoicism and hard work have become synonymous with the average Aussie fought for by the brave ANZAC’s (Australian and New Zealand Army Corps). For a country that lacks the grand imperial narratives of Britain or the revolutionary founding stories of America, the digger – the Australian frontline soldier – occupies an almost religious space in the national psyche. It is a reverence that Israelis, who share their own profound and deeply personal relationship with their military, will recognise immediately.
Ben Roberts-Smith was, for a decade, the living embodiment of the ANZAC digger spirit.
Born in 1978 in Perth, Western Australia, the son of a Supreme Court judge, he enlisted in the army at eighteen and rose through the ranks to serve with the Special Air Service Regiment – the SAS – Australia’s most elite special forces unit, roughly equivalent to Britain’s SAS or Israel’s Sayeret Matkal. He was a young man that towered above the rest, standing at 6’5” , with broad shoulders, chiseled jaw line, Roberts Smith could be described as the physical embodiment of an elite special forces soldier. Deployed multiple times to Afghanistan, he was awarded the Victoria Cross in 2011 – the highest honour Australia can bestow on a soldier. It was for single-handedly charging two enemy machine-gun positions under fire to rescue his pinned-down comrades. He also received the Medal for Gallantry for a separate action.
Back home, he was feted like royalty. He was named Australian Father of the Year. He was given a scholarship to study business at a prestigious university. Billionaire media mogul Kerry Stokes handed him executive leadership roles at the Channel Seven television network. He attended national commemorations as a living symbol of Australian courage. His face appeared on magazine covers. Roberts-Smith became the poster boy for Australian heroism, bravery and sacrifice. A figure that represented the very best of what this country has to offer and the physical emulate of our sacred Defence Forces.
But then came the allegations that would consume everything.
The Allegations That Changed Everything
In 2017/18, a series of explosive investigative reports by journalists Nick McKenzie, Chris Masters, and others alleged that Roberts-Smith had committed multiple war crimes during his deployments in Afghanistan’s Uruzgan Province.
The allegations, in their specificity, were harrowing. Roberts-Smith was accused of kicking a handcuffed Afghan farmer named Ali Jan off a cliff and ordering his execution as he lay wounded below. He was accused of directing subordinates to shoot a man with a prosthetic leg and allegedly bringing the prosthetic leg back to Australia as a grotesque trophy, encouraging soldiers to use it as a novelty beer-drinking vessel. He was accused of participating in a practice known as “blooding” – the alleged initiation of junior soldiers by ordering them to kill unarmed prisoners to achieve their first kill.
Now, he has been formally charged with five counts of the war crime of murder, relating to alleged killings between 2009 and 2012. The accused victims, prosecutors allege, were unarmed, detained, and under the control of Australian soldiers at the time of their deaths.
Roberts-Smith has denied every single allegation, consistently, publicly and emphatically. Standing before cameras on Queensland’s Gold Coast after being released on bail last week, he said he had “always acted within the rules of engagement” and would use the criminal proceedings “to finally clear my name”. His next court appearance is scheduled for June 5, 2026.
The Civil Trial Saga: Why It Does Not Equal Guilt
Before Roberts-Smith faced criminal charges, he did something audacious: he sued the journalists who wrote the stories for defamation. The trial – underwritten by Kerry Stokes’s private investment company – became known in Australia as “the trial of the century.” It ran for 110 days, generating 6,186 pages of transcript and testimony from 41 witnesses.
In June 2023, Federal Court Justice Anthony Besanko dismissed Roberts-Smith’s case and found that the allegations of unlawful killings had been established, on the balance of probabilities, meaning the court considered it more likely than not that they occurred. Multiple appeals were dismissed, most recently by the High Court of Australia in 2025.
But here is a legal distinction that is absolutely critical, and which much of the media coverage has either glossed over or actively obscured: the civil verdict is not a criminal conviction. It never was, and it cannot be treated as one.
In Australian law, as in Israeli law and indeed most democratic legal systems around the world, civil and criminal proceedings operate under entirely different standards of proof. In a civil defamation case, the threshold is “the balance of probabilities” – meaning the court found the allegations more likely true than not. A criminal court, by contrast, must be satisfied beyond reasonable doubt – a vastly higher bar, designed specifically to prevent the wrongful conviction of innocent people.
Roberts-Smith has not been convicted of a crime. He has not been found guilty in a criminal court of law. He has not been sentenced. He has been charged. And yet, across Australian media, social media, and dinner table conversations, he is routinely referred to as a “war criminal” – a label that, at this stage of proceedings, remains legally and factually wrong. In a country whose justice system rests on the presumption of innocence, this casual pre-judgment of a man who has not yet stood trial deserves serious scrutiny.
The Witnesses, the Money, and the Questions That Won’t Go Away
Roberts-Smith’s defenders (and there are many) raise a concern that has received far too little mainstream attention: the reliability of the Afghan witnesses whose testimony formed a significant part of the case against him.
Court documents from the defamation trial, examined closely in the weeks following his arrest, have raised deeply uncomfortable questions. Several key Afghan witnesses – illiterate subsistence farmers (as they’ve been described) from a remote Taliban-controlled village – admitted during testimony to viewing Australian soldiers, including Roberts-Smith, as “infidels” and “kafir” (the Arabic/Pashto term for non-believers, typically used pejoratively). One witness admitted to staging a disguise – using a donkey to make himself and another man appear to be nomadic travellers when Australian helicopters arrived overhead.
More significantly, court documents reveal that a fixer working for Nine Newspapers – the media organisation that published the original allegations and which Roberts-Smith sued – paid for the accommodation, food and transport of witnesses and their families. In some cases, witnesses and up to fourteen of their relatives were relocated to Kandahar and then Kabul for extended periods, with all expenses covered.
The implications are significant. Afghanistan remains one of the poorest countries on earth. A subsistence farmer there lives on the equivalent of a few dollars a day. The prospect of having an entire extended family housed, fed and transported at the expense of a wealthy Western media organisation for up to a year represents a material incentive of almost unimaginable proportions in that context. Roberts-Smith’s camp has argued this creates an obvious financial motivation to provide, or at minimum to embellish, testimony favourable to the news organisation that was paying the bills.
This is not a trivial concern. The integrity of witness testimony in war crimes prosecutions is notoriously difficult to establish. The Office of the Special Investigator’s own investigator, Ross Barnett, acknowledged the structural challenges candidly: “We don’t have access to the crime scenes. We don’t have photographs, site plans, measurements, the recovery of projectiles, blood spatter analysis, all of those things we would normally get at a crime scene.”
There is also the matter of the Australian soldier witnesses. Roberts-Smith’s legal counsel have argued strenuously that several of the former SAS colleagues who testified against him were motivated by jealousy and personal grievance – bitter, in their telling, that a fellow soldier had received the Victoria Cross and the fame and wealth that followed.
Significantly, there was also a secret recording that emerged in 2025 of journalist Nick McKenzie allegedly admitting that Roberts-Smith’s former partner had been “actively briefing” the media on his legal strategy. Roberts-Smith’s lawyers argued this represented serious journalistic misconduct that compromised the entire proceeding.
None of this constitutes proof of innocence. But in aggregate, it raises serious questions about whether the weight of evidence – gathered in a war zone, over a decade ago, through intermediaries with financial interests in the outcome – will survive the rigorous scrutiny of a criminal trial conducted to the “beyond reasonable doubt” standard.
What The Experts Have Said
Legal experts are divided in illuminating ways.
Professor Melanie O’Brien of the University of Western Australia Law School, one of Australia’s foremost authorities on international criminal law, notes that Roberts-Smith faces charges under Australia’s Criminal Code Act, which provides for war crimes jurisdiction over conduct committed abroad. She has also observed that no charges have been brought under “command responsibility” provisions – meaning the prosecution is targeting Roberts-Smith as an individual, rather than pursuing the culture and leadership structures that allegedly enabled the behaviour.
Professor Douglas Guilfoyle of the University of New South Wales has described Australia’s response to the Brereton findings as “more public and legally driven” than that of any of its Western allies. The United States deployed approximately 832,000 personnel to Afghanistan over the course of the war. Britain sent around 150,000. Neither country has prosecuted a single soldier for a war crime in Afghanistan. Canada investigated detainee abuse and laid no charges. New Zealand investigated alleged killings and found no criminality. Australia, with a total of roughly 40,000 troops deployed, is the only Western nation that has both commissioned a public war crimes report of this scope and moved to prosecute its own soldiers.
For some, this represents moral courage and institutional integrity. For others, it represents political theatre: the prosecution of individual soldiers as scapegoats to satisfy international critics and domestic progressives, while the military commanders and governments whose orders and culture enabled these alleged behaviours face no consequences whatsoever.
A Nation’s Identity on Trial
The deeper stakes of this case go well beyond one man’s guilt or innocence.
At its heart, the Roberts-Smith affair forces Australia to confront the gap between the mythology it has constructed around its military and the complex, morally ambiguous reality of what counterinsurgency warfare actually involves. When soldiers are sent into environments of extreme danger, operating against an enemy that wears no uniform, uses civilian populations as cover, and operates in a culture utterly foreign to their own – what is the standard of conduct we demand? And when we set that standard, are we judging men in the heat of battle from the comfort of air-conditioned courtrooms?
These are questions without easy answers. They are also questions that will resonate powerfully with Israeli readers.
Israel has long navigated this same impossible terrain. The IDF operates in environments of profound moral complexity – Gaza, the West Bank, Lebanon – where the line between combatant and civilian is deliberately blurred by adversaries who regard that ambiguity as a strategic weapon. The question of when a detained person poses a threat, when the rules of engagement permit lethal force, and when a soldier’s judgment call crosses the line into criminal conduct is not theoretical in Israel. It is immediate and existential.
The parallel is evident in the Elor Azaria case. An Israeli example of “the fog of war” and “heat of the battle”. Many of the same arguments used then, are being made in Australia right now about Ben Roberts-Smith.
There is also the uncomfortable spectre of double standards. Critics on the left point to whistleblower David McBride – the military lawyer who leaked classified documents to the ABC, ultimately exposing many of the same atrocities Roberts-Smith is alleged to have committed. McBride was prosecuted, convicted, and imprisoned. Roberts-Smith, meanwhile, was given a media career and had his legal battles bankrolled by billionaires, spending years attacking the journalists who exposed him before facing any criminal charges. The man who told the truth went to prison first. The man whose alleged actions necessitated that truth-telling went free for years.
What Happens Next – and Why It Matters
Ben Roberts-Smith is due back in court on June 5, 2026, for a status hearing. A full criminal trial, which promises to be the most significant in Australian legal history, lies ahead. He will be entitled – as any accused person must be – to the full presumption of innocence, the right to confront his accusers, and a verdict delivered only if guilt is established beyond reasonable doubt.
Whatever the outcome, this case has already done something irreversible: it has forced Australia to examine not just one man’s conduct, but the entire edifice of mythology, power, and impunity that for years protected him. It has raised profound questions about what democracies owe to the soldiers they send to war, and what those soldiers owe to the civilians – enemy civilians, no less – they encounter there.
For those in Israel, those questions are not academic. They are lived daily, in uniform, at checkpoints, in the split-second decisions that will later be scrutinised for years in courts, committees, and on the front pages of newspapers.
Ben Roberts-Smith may be acquitted. He may be convicted. He may never face a jury if the evidence is found wanting. But the questions his case poses – about accountability, about the limits of heroism, about who bears responsibility when wars are fought in morally grey zones – will outlast the verdict by decades.
In both the sunburned plains of Australia and the ancient hills of the Middle East, democracies are still working out the answer.