“Because we can’t go to that country, we don’t have access to the crime scene. We don’t have photographs, site plans, measurements, the recovery of projectiles, blood splatter analysis, all of those things we would normally get at a crime scene,” Office of the Special Investigator director of investigations Ross Barnett said on Tuesday.
“We don’t have access to the deceased, there’s no post-mortem, therefore there’s no official cause of death, there’s no recovery of projectiles to link to weapons that might have been carried by members of the ADF.”
But still Mr Barnett and the Australian Federal Police chief, Krissy Barrett, have concluded that the evidence is sufficient enough that Australia’s most decorated soldier should face a trial for committing alleged war crimes, namely murder, of Afghan men during combat operations in Afghanistan 17 years ago.
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In war, context is everything.
In the case of Ben Roberts-Smith, who saved countless Australian soldiers on the battlefield under enemy fire, Commissioner Barrett says he “was involved in the death of Afghan nationals between 2009 and 2012 in circumstances that constitute war crimes under the Commonwealth Criminal Code”.
It would be alleged the victims were not taking part in hostilities at the time.
While the AFP and the OSI have been pursuing Mr Roberts-Smith since 2021, and the allegations against him have been documented in a defamation action against a media outlet, Federal investigators chose to arrest the Victoria Cross recipient in bizarre scenes on the tarmac of Sydney airport.
They later published footage of the arrest, with Mr Roberts-Smith’s face obscured by digital blurring.
Ms Barrett earlier refused to utter his name.
Australia lost 41 soldiers in Afghanistan.
The soldiers we sent into Afghanistan — in many cases multiple times — faced constant danger in hostile environments, up against an enemy that fought in a manner which was not bound by historical rules and methods.
Mr Roberts-Smith was one of a number of SAS soldiers whose behaviour on the battlefield came under scrutiny years later when they returned to Australia, in many cases defeated men.
OSI’s Mr Barnett revealed on Tuesday that 39 of 53 investigations of alleged war crimes had been finalised.
Mr Roberts-Smith was once judged to be a hero for his bravery and his fearless endeavours during combat. Authorities are now asking Australians to judge the decorated soldier as a murderer for his activities in that very same field of combat.
Prosecutors will need to convince a jury that the same man went from braveheart soldier, trained to kill during war, to heartless killer, who murdered during war.
Context will be everything.
Many Australians will ask, who are we to judge?
Others will believe that how we behave in battle is a reflection of national character.
Regardless of the outcome, a war hero charged with war crimes is a sad day for all Australians, who rightly ask of their leaders, how? And why?
