Roberts-Smith gets bail in Australia over Afghan war crimes

Australia’s most decorated living soldier has been granted bail after being charged with war crimes in Afghanistan. The case is among the highest-profile in the country.

An Australian court ordered on Friday bail with travel restrictions for Ben Roberts-Smith, the country's most-decorated living war veteran.

The decision comes 10 days after he was charged with war crimes in the killings of five people while deployed in Afghanistan. Roberts-Smith has denied the accusations.

If convicted, he faces a maximum sentence of life in prison.

What did the judge say?

Judge Greg Grogin told a Sydney court that Roberts-Smith was entitled to the presumption of innocence, despite the seriousness of the charges if proven.

He added that the case was likely to take "years" to reach trial, creating exceptional circumstances that justified granting bail. Roberts-Smith was also ordered to pay a surety of A$250,000 (€150,000, $180,000).

Prosecutors had opposed bail, arguing that Roberts-Smith might flee Australia or interfere with witnesses and evidence. 

In opposing bail, prosecutor Simon Buchen described the charges against Roberts-Smith as "among the most serious known to the criminal law." Buchen added that the war veteran was "on the cusp of relocating overseas" without informing authorities when he became aware of the possibility of facing charges.

Police arrested and charged the 47-year-old last week ⁠with five counts of war crimes over the alleged murder of five unarmed Afghan civilians in Uruzgan province between 2009 and 2012. Each charge carries a maximum sentence of life in prison.

The charges follow a landmark military report released in 2020, which found evidence that elite SAS and commando troops unlawfully killed 39 Afghan prisoners, farmers and other non-combatants.

Roberts-Smith is accused of shooting two victims himself and ordering his subordinates to kill three others. 

Roberts-Smith lost defamation case over war crime allegations

In 2023, a civil court found similar allegations against Roberts-Smith to be credible, rejecting his claim that newspaper reports had defamed him.

During that trial, he testified that he had never killed an unarmed Afghan and denied committing any war crimes. He said he was the victim of false accusations by fellow soldiers and of jealousy over his military medals.

However, while the civil court found the allegations were mostly proven on the balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt. 

Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person who is not taking an active part in the hostilities, such as a civilian, prisoner of war or a wounded soldier.

More than 39,000 Australian military personnel served in Afghanistan between 2001 and 2021, as part of US- and NATO-led operations against the Taliban.

Edited by: Rana Taha