Australia’s Most Decorated Living Veteran Released on Bail Amid War Crime Charges

Australia’s most decorated living veteran, Ben Roberts-Smith, was released on bail Friday from a Sydney prison, 10 days after his arrest on war crimes charges stemming from his service in Afghanistan. The 47-year-old former Special Air Service Regiment corporal faces five counts of war crime murder involving the deaths of Afghan civilians and prisoners between 2009 and 2012.

Judge Greg Grogin granted Roberts-Smith bail after determining that “exceptional circumstances” warranted his release, despite prosecution objections that the decorated soldier might flee Australia or interfere with witnesses and evidence.

The charges against Roberts-Smith represent a watershed moment in Australia’s reckoning with alleged misconduct by its special forces in Afghanistan. Under Australian law, war crime murder is defined as the intentional killing of a non-combatant—such as a civilian, prisoner of war, or wounded soldier—in the context of armed conflict.

Prosecutor Simon Buchen had argued against bail, characterizing the charges as “among the most serious known to criminal law” and claiming Roberts-Smith had been “on the cusp of relocating overseas” with “advanced plans” to move to various international destinations without informing authorities when he learned prosecutors were considering charges.

Roberts-Smith, who was awarded both the Victoria Cross—Australia’s highest military honor—and the Medal of Gallantry for his service, is only the second Australian veteran of the Afghanistan campaign to face war crimes charges. If convicted, he faces a potential maximum sentence of life imprisonment for each charge.

The case follows a 2020 military report that uncovered evidence suggesting elite Australian SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers, and other noncombatants. Approximately 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, with 41 killed during the deployment.

Similar allegations against Roberts-Smith were deemed credible in a civil defamation case in 2023, when a judge rejected his claims that newspaper articles had falsely portrayed him as a war criminal. During that trial, Roberts-Smith maintained his innocence, testifying that he never killed an unarmed Afghan or committed war crimes. He attributed the allegations to jealousy over his medals and lies from spiteful fellow soldiers.

However, the burden of proof differs significantly between the civil and criminal proceedings. While the civil court found war crimes allegations “mostly proven” on a balance of probabilities, prosecutors in the criminal case must establish guilt beyond reasonable doubt—a substantially higher standard of evidence.

According to court documents, Roberts-Smith is accused of personally shooting two victims and allegedly ordering subordinates to kill three others. He has not yet entered pleas to the charges.

Defense lawyer Slade Howell characterized Roberts-Smith’s case as “exceptional in the sense that it is out of the ordinary” during the bail hearing.

“The use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier deployed overseas repeatedly by the Australian government to fight a war on its behalf is unprecedented and is uncharted legal territory of the common law of this country,” Howell argued.

Howell also warned that the proceedings would likely face “a multitude of delays, many of which are peculiar to these proceedings,” including potential complications if prosecutors decide to charge any of Roberts-Smith’s fellow veterans, some of whom now live overseas.

Roberts-Smith participated in the bail hearing via video link from prison, speaking only to confirm he could see and hear the proceedings. After his release, news media images showed him leaving Sydney’s Silverwater Correctional Complex apparently wearing the same clothes he had on when police escorted him from a commercial airliner upon his arrest at Sydney Airport the previous week.

The case continues to spark intense debate in Australia about military conduct in overseas deployments and the appropriate mechanisms for accountability when allegations of serious misconduct emerge.