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Ben Roberts-Smith defamation case ends in victory for Australian newspapers


SYDNEY — Australia’s most embellished residing soldier misplaced a high-profile defamation criticism towards three of the nation’s prime newspapers Thursday, capping a case that spanned greater than 100 days of typically startling testimony, value greater than $15 million and raised recent allegations of atrocities dedicated by Australian particular forces in Afghanistan.

The judgment was a victory for the Sydney Morning Herald, the Age and the Canberra Occasions — and, stated consultants, for Australian journalism.

5 years in the past, the papers reported that Ben Roberts-Smith had been concerned within the killing of six prisoners whereas on responsibility in Afghanistan between 2009 and 2012.

Roberts-Smith — a retired corporal within the Particular Air Service, or SAS — sued the newspapers for what he stated was falsely portraying him as a battle prison.

In a nation that prides itself on its outsize service in abroad wars, the case rapidly assumed its personal outsize symbolism. It pitted a towering battle hero, who claimed he was the sufferer of jealous colleagues, towards among the nation’s prime investigative journalists, who argued in court docket that their reporting was correct.

That authorized protection remodeled the defamation proceedings right into a de facto battle crimes trial, as greater than three dozen witnesses testified about killings that occurred greater than a decade in the past on the opposite facet of the world.

The Afghanistan Papers: A secret history of the war

For some Afghans, the case was a uncommon alternative to make clear allegations of wrongdoing by U.S. coalition forces throughout the two-decade battle, which resulted in 2021 when the Taliban regained management of the nation.

“There are very low expectations amongst Afghans as a result of … they’ve skilled atrocities with out anybody being held to account,” stated Nematullah Bizhan, an Afghan lecturer on the Australian Nationwide College. “Regardless of the end result, this case is kind of vital: No less than it provides some aid to the households of the victims.”

For Australians, the case promised to both restore or destroy the picture of a person whose battlefield exploits had made him a family title.

“Ben Roberts-Smith is an icon,” stated John Blaxland, a professor of Worldwide Safety and Intelligence Research at ANU and a former Australian military officer. “He’s actually and metaphorically bigger than life.”

The 6-foot-8-inch soldier shot to fame when he was awarded the Victoria Cross for Australia — the nation’s highest army honor — in 2011 for nearly single-handedly saving fellow troops after they’d been pinned down by Taliban machine gun fireplace throughout a 2010 operation.

The medal was adopted by extra accolades, together with profitable talking engagements, two portraits within the Australian Warfare Memorial and the Father of the 12 months title in 2013. The 44-year-old attended the funeral of Queen Elizabeth II final 12 months, after the palace prolonged an invite to Victoria Cross and George Cross recipients throughout the Commonwealth.

Within the minds of some Australians, Roberts-Smith embodied the values of braveness and sacrifice set by Australian troopers since World Warfare I.

Blaxland stated Roberts-Smith epitomized the concept of the “excellent soldier.” “Powerful, resilient, sharp, intellectually succesful, who can take no matter is thrown his approach and nonetheless get the spherical heading in the right direction and are available dwelling in time for tea and medals.”

However that fantasy started to unravel in 2018, when the three newspapers ran a sequence of articles accusing Roberts-Smith of killing or ordering the killing of a half dozen unarmed Afghan prisoners or civilians.

Among the many accusations had been that Roberts-Smith kicked a handcuffed Afghan man off a cliff after which ordered him shot; shot a teenage prisoner point-blank within the head; and gunned down a disabled man, whose prosthetic leg was later utilized by SAS troopers to drink beer.

Roberts-Smith known as the allegations “a listing of lies, fabrications and misrepresentations” and sued.

Defamation legal guidelines are far stricter in Australia than in the USA, the place public figures should show precise malice on the a part of information media, famous David Rolph, a legislation professor on the College of Sydney. A legislation handed in 2021 permits media in a lot of Australia to defend themselves by arguing that what they publish is within the public curiosity, however the change got here too late for this case, he stated.

“As a result of fact is the one protection right here, somewhat than choosing over what the journalists did, the main focus of the trial has been on whether or not he did it or not,” Rolph stated.

That meant that Roberts-Smith sat by means of months of civil testimony that always felt like a prison trial.

A junior member of his patrol testified, for instance, concerning the man being kicked off the cliff and shot — a declare backed up by three Afghans who appeared in court docket remotely. However Roberts-Smith and one other soldier denied that model of occasions, and as an alternative stated the person was a Taliban scout who had been lawfully killed.

Roberts-Smith equally denied wrongdoing in 4 different killings, and claimed a sixth by no means occurred.

In closing arguments, Roberts-Smith’s legal professional sought to remind the court docket that his consumer was not within the defendant’s field.

“This trial, which has lasted over 100 days, has been known as an amazing many issues: the trial of the century, a proxy battle crimes trial, and an assault on the liberty of the press,” Arthur Moses stated. “It’s none of those. It’s a case which has been introduced as a result of the respondents selected to defame Mr. Roberts-Smith.”

But, at instances the proceedings threatened to tarnish Roberts-Smith additional by elevating new allegations.

His ex-wife accused him of burying proof in a baby’s lunchbox of their yard, together with USB drives with categorised data and pictures of troopers consuming out of a prosthetic leg. Roberts-Smith denied burying the USB drives or withholding data, however acknowledged possessing them. He admitted to burning a laptop computer with gasoline, however denied it was to hide proof.

A personal investigator testified that Roberts-Smith had paid him to unwittingly ship troopers threatening letters to maintain them from cooperating with investigators, and to movie Roberts-Smith’s mistress attending an abortion clinic.

Maybe most stunning, a buddy of Roberts-Smith claimed there have been three extra alleged killings to which the soldier had been linked.

Roberts-Smith has not been charged with against the law, however Australian media have reported that he’s certainly one of three SAS troopers who’re the main focus of an ongoing investigation by the Workplace of the Particular Investigator, which was created within the wake of a scathing 2020 report by the Inspector-Common of the Australian Protection Power that discovered Australian particular forces had dedicated battle crimes in Afghanistan.

Australia discovered that its special forces committed war crimes in Afghanistan

In March, an SAS soldier was arrested and charged with “battle crime — homicide” for fatally capturing an unarmed Afghan in a wheat discipline in 2012. It’s the first case of its sort, authorities said.

On Wednesday, the top of the ADF told lawmakers that the USA has warned it could droop cooperation with Australian particular forces as a result of mounting battle crimes considerations.

Ben Mckelvey, a journalist who has written a book about Australian particular forces operations in Afghanistan, stated the defamation trial had supplied a useful window into the hazy guidelines governing the U.S.-led “kill/seize” program, which was presupposed to solely goal Taliban leaders however quickly consumed the SAS’s time.

However by specializing in Roberts-Smith, the proceedings and their media protection additionally threatened to overlook the larger image, together with whether or not commanding officers or politicians knew about and even condoned the alleged battle crimes.

Mckelvey stated Australia must launch a royal fee — akin to a U.S. congressional inquiry — to know what went unsuitable.

The defamation trial, he stated, was “just a bit peek by means of the crack within the door.”


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