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Opinion
April 10, 2026 — 5:00am
If we’re fortunate, the fact federal police have charged Ben Roberts-Smith with war crimes under Australian law and before an Australian court will force us into a moment of hesitation. The early signs are promising, with the prime minister and opposition leader declining to weigh in, correctly noting the dangers of commenting on a matter before the courts. Such reticence is precious in a saga like this, which from its beginning took the shape of a culture war. It remained such, even as it worked its way through the courts courtesy of Roberts-Smith’s defamation suit against this masthead, breaking along familiar, highly politicised lines.
Put crudely, a conservative cohort was outraged, seeing a scandalous attack on a war hero, besmirching our armed forces. It was people who had never been to war presuming to judge those who had. Meanwhile, in progressive hands, this became a way to criticise a particular kind of nationalism, in which we package our national identity in the military, and assume it can do no wrong. For that reason, it also sat alongside a more thoroughgoing critique of our military’s culture. Cast in these terms, it is little wonder even, as this moved from the newspaper into the courts, plenty found themselves not merely interested observers, but barrackers, cheering for one outcome.
But no longer can this be reduced to such politics. No longer is this a contest between Roberts-Smith and some journalists. You can’t credibly frame the Australian Federal Police as scurrilous activists trying to sully our soldiers. Equally, you can’t dismiss them as being purely on the side of state power if they’re prepared to press charges – carrying a potential life sentence – against a Victoria Cross recipient. This moment invites us to a place above the fray. But to get there, we’ll need to pay careful attention to what’s happening. And what’s not.
Here, for instance, is former Labor defence minister Joel Fitzgibbon, in a written statement: “[W]e need to be mindful of what governments exposed our Diggers to in Afghanistan, how much we expected of them, and how much we pushed them … if things went wrong in the fog of war, we all share responsibility.” True enough. But we should be clear that the allegations in this case – as put by the police and prosecutors – are specifically removed from the fog of war. Federal Police Commissioner Krissy Barrett is explicit on the point: “It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan. It will be alleged the victims were unarmed and were under the control of ADF members when they were killed. It will be alleged the victims were shot by the accused or shot by subordinate members of the ADF in the presence of and acting on the orders of the accused.”
Similarly, we have former prime minister Tony Abbott’s response: “There are rules that have to be observed and enforced, even against soldiers in times of war. Still, it’s wrong to judge the actions of men in mortal combat by the standards of ordinary civilian life.” Except, no one is. Not the police, not prosecutors, and certainly not the courts. That much is clear from the charges.
Roberts-Smith has not been charged with the civilian crime of “murder”. He’s facing five counts of a very specific charge of “war crime – murder”: a completely different offence, appearing in a very specific part – division 268 – of our Criminal Code. It’s a distinct wartime offence calibrated to war conditions that reflects the Geneva Convention. It has special defences available, unavailable to any civilian, which only make sense in a war setting. For example, you can be acquitted if the attack causing the death was appropriate given its military objectives.
That this exists in our law, and that we are prepared to hold our own soldiers to it, is to Australia’s enormous credit. It is also – crucially – a bipartisan achievement. It was the Howard government in 2002 that legislated these war crimes. The unit that has done this painstaking, years-long investigation into Roberts-Smith – the Office of the Special Investigator – was created by the Morrison government in 2020. The current Labor attorney-general had to authorise this prosecution. There is therefore no reason for this to devolve into anything partisan. Whatever the outcome in this case, this can be a process the country’s mainstream can own, rather than one that tears us apart.
We should acknowledge that before that outcome arrives. Then we should remember it once it does. Because that outcome is not foregone. The fact that two courts found the allegations were established makes nothing automatic. Those were civil cases, where courts are satisfied with a lower standard of proof. It’s possible that when tested against the criminal standard – beyond reasonable doubt – Roberts-Smith is acquitted. But whatever transpires, we should resist the temptation, from either political direction, to regard this as an attack on our military.
The truth is these allegations only exist with any potency because Roberts-Smith’s fellow SAS soldiers blew their whistles. They only survived the scrutiny of a civil court because those soldiers were prepared to take the stand and give evidence. Whether or not the allegations end up being proven as a criminal matter, this isn’t remotely about the meddling of civilians. It is about people familiar with the fog of war, who care deeply about our army, seeking to preserve its integrity. A jury will decide if they have.
That’s a story about the strength of our institutions. And that’s a story at least our major parties should be proud to tell. Insurgents like One Nation will sit outside this, indeed Pauline Hanson has lambasted the whole investigation. But even here there’s an irony. So much of our politics insists the law is sacred when we’re interrogating minorities or political foes. Let it be no less sacred now.
Waleed Aly is a broadcaster, author, academic and regular columnist for The Age and The Sydney Morning Herald.
