Australian War Hero Ben Roberts-Smith Granted Bail on Afghanistan War Crimes Charges

POLICY WIRE — Sydney, Australia — Australia’s most decorated living soldier, Ben Roberts-Smith, has been released from custody after a judge granted him bail just ten days following his arrest on historic war crimes charges.

The former Special Air Service Regiment corporal departed from Sydney’s Silverwater Correctional Complex on Friday evening. His release came approximately five hours after Justice Greg Grogin determined in a Sydney court that “exceptional circumstances” warranted his freedom pending trial.

Court Battle Over Bail Conditions

Prosecutors had strongly contested the bail application, voicing concerns that the 47-year-old veteran posed a significant flight risk and could potentially interfere with witnesses or evidence. Prosecutor Simon Buchen described the charges as “among the most serious known to the criminal law,” highlighting that Roberts-Smith had made “advanced plans to relocate overseas” before his arrest.

In contrast, the defense argued the case was unprecedented. Lawyer Slade Howell stated that prosecuting a highly decorated soldier for alleged war crimes in a domestic court represented “uncharted legal territory” for Australia. He also projected that the proceedings would be fraught with “a multitude of delays,” further justifying the need for bail.

The Allegations and Broader Context

Roberts-Smith was taken into custody on April 7, facing five counts of war crime murder. These charges are linked to the deaths of five Afghan nationals in Uruzgan province between 2009 and 2012. Under Australian law, this specific crime involves the intentional killing of a non-combatant, such as a civilian or prisoner, during an armed conflict.

The specific accusations against Roberts-Smith include:

• Personally murdering two unarmed Afghan individuals.
• Commanding his subordinates to execute three other captives.

These criminal charges are the culmination of a long-running investigation, which gained momentum following a damning 2020 military inquiry. That report, known as the Brereton Report, uncovered credible evidence that Australian elite forces were involved in the unlawful killing of 39 Afghan prisoners, farmers, and civilians.

A recipient of both the Victoria Cross and the Medal for Gallantry for his service, Roberts-Smith has consistently maintained his innocence. During a separate, unsuccessful defamation lawsuit he filed against several newspapers in 2023, he testified that he was the victim of lies spread by jealous colleagues. While that civil case found the allegations were likely true on the “balance of probabilities,” a criminal conviction requires the much higher standard of proof “beyond reasonable doubt.”

If convicted, the decorated veteran faces a potential maximum sentence of life in prison for each count. He has not yet entered a plea, and he participated in the bail hearing remotely via video link from prison.