War Crimes Defamation: Roberts-Smith Loses Appeal, What’s Next?

In a landmark decision that has reverberated throughout Australia and beyond, Ben Roberts-Smith, a highly decorated former soldier, has lost his appeal in a high-profile defamation case. This ruling not only marks a significant moment in Australian legal history but also raises critical questions about accountability, media freedom, and the very definition of heroism. With an estimated legal bill exceeding $25 million, this case underscores the immense costs and complexities involved in defamation suits, particularly those intersecting with allegations of war crimes.

The Roberts-Smith Defamation Case: A Recap

Ben Roberts-Smith, a recipient of the Victoria Cross, Australia’s highest military honor, sued three newspapers – The Sydney Morning Herald, The Age, and The Canberra Times – over a series of articles published in 2018. These articles accused him of committing or being complicit in unlawful killings during his deployments in Afghanistan. Roberts-Smith vehemently denied these allegations, claiming the publications had defamed him and damaged his reputation.

In the initial trial, the Federal Court of Australia largely sided with the newspapers. Justice Anthony Besanko found that the newspapers had proven the “substantial truth” of the allegations against Roberts-Smith in several instances. This included findings that Roberts-Smith had been involved in the murder of unarmed Afghan civilians.

The Appeal and Its Outcome

Roberts-Smith subsequently appealed the Federal Court’s decision, arguing that Justice Besanko had made errors in his assessment of the evidence and that the newspapers had not met the burden of proving the allegations. However, a panel of three judges of the Full Federal Court unanimously dismissed his appeal in May 2024. The appellate court upheld the original findings, reinforcing the conclusion that Roberts-Smith had indeed engaged in conduct that constituted war crimes.

Implications of the Ruling

The dismissal of Roberts-Smith’s appeal carries profound implications:

Accountability for War Crimes: The ruling sends a strong message that allegations of war crimes will be taken seriously and investigated thoroughly, regardless of the accused’s status or reputation. It reinforces the principle that even in the fog of war, there are lines that cannot be crossed, and those who do cross them will be held accountable.
Media Freedom and Public Interest Journalism: The case is a significant victory for media freedom in Australia. It affirms the right and responsibility of journalists to investigate and report on matters of public interest, even when those matters involve powerful individuals or institutions. The ruling underscores the importance of a free press in holding power to account and ensuring transparency.
Impact on Military Culture: The Roberts-Smith case has sparked a national conversation about the culture within the Australian military, particularly regarding the conduct of special forces in combat zones. It has prompted calls for greater oversight and accountability to prevent future abuses and ensure that Australian soldiers adhere to the laws of war.
Defamation Law and the Burden of Proof: The case highlights the complexities of defamation law, particularly when it intersects with allegations of criminal conduct. It underscores the high burden of proof that plaintiffs face in defamation cases, especially when the defendant can demonstrate the “substantial truth” of their allegations.

What’s Next for Ben Roberts-Smith?

With his appeal dismissed, Ben Roberts-Smith faces a number of potential consequences:

Possible Criminal Charges: While the defamation case was a civil matter, the findings of the court could potentially lead to criminal charges being filed against Roberts-Smith for war crimes. Australian authorities, as well as the International Criminal Court, could potentially investigate the matter further.
Loss of Military Honors: The Australian government is under increasing pressure to strip Roberts-Smith of his military honors, including the Victoria Cross. Such a move would be a symbolic but significant rebuke of his actions and a reaffirmation of Australia’s commitment to upholding the laws of war.
Financial Ruin: Roberts-Smith is liable for the extensive legal costs incurred by both sides in the defamation case. With estimates suggesting total costs exceeding $25 million, he faces the prospect of financial ruin.
Reputational Damage: The findings of the court have caused irreparable damage to Roberts-Smith’s reputation. Once regarded as a national hero, he is now widely viewed as a disgraced figure who has betrayed the values he was sworn to uphold.

The Broader Context: War Crimes and Defamation

The Roberts-Smith case is not an isolated incident. It is part of a broader global trend of increasing scrutiny of military conduct in conflict zones and a growing willingness to hold individuals accountable for war crimes. Defamation law often intersects with these issues, as individuals accused of wrongdoing seek to protect their reputations, while the media and others assert their right to report on matters of public interest.

Several factors contribute to the complexities of these cases:

The Fog of War: War is inherently chaotic and violent, making it difficult to ascertain the truth of events that occur in combat zones. Evidence is often scarce, witnesses may be unreliable, and memories can fade over time.
The Laws of War: The laws of war, also known as international humanitarian law, are a complex set of rules that govern the conduct of armed conflict. These laws are often difficult to apply in practice, particularly in asymmetric conflicts involving non-state actors.
The Burden of Proof: In both criminal and civil cases, the burden of proof rests on the party making the allegations. This can be a high hurdle to overcome, particularly when dealing with allegations of war crimes, which often require proof beyond a reasonable doubt.
The Public Interest: There is a strong public interest in ensuring that allegations of war crimes are investigated thoroughly and that those responsible are held accountable. However, there is also a public interest in protecting freedom of speech and ensuring that the media can report on matters of public concern without fear of reprisal.

Advice and Conclusion

The Ben Roberts-Smith defamation case serves as a stark reminder of the human cost of war and the importance of accountability. It underscores the need for robust legal frameworks to address allegations of war crimes and for a free and independent media to hold power to account.

If you or someone you know has been affected by issues raised in this case, seeking legal advice is crucial. Understanding your rights and options is the first step toward navigating complex legal challenges and ensuring that justice is served.

Disclaimer: This blog post provides general information only and does not constitute legal advice. If you require legal advice, please consult with a qualified attorney.