The War Crime of Murder: A Commonwealth Offence

Australia’s most decorated soldier Ben Roberts-Smith was arrested on 7 April 2026, on Dharawal land at Sydney’s domestic airport. The former Special Air Service Regiment (SAS) corporal has been charged with five counts of the war crime of murder, and as of 14 April, the 47-year-old, often considered our greatest living war hero, is being held on remand in Silverwater Correctional Centre.

Roberts-Smith served six tours in Afghanistan beginning in 2006 and was awarded the nation’s highest military honour the Victoria Cross. But he’s now charged with five murders of unarmed Afghan detainees and civilians that took place in Afghanistan’s Uruzgan Province in 2009 and 2012.

Allegedly, one murder just involved him, another was perpetrated in company, whilst three more saw him ordering subordinates to kill.

The Australian federal police and the Office of the Special Investigator (OSI) began their joint investigation of Roberts-Smith in 2021. This inquiry was a direct result of the late 2021 released Brereton report, which involved a four-year-long official investigation into persistent rumours about war crimes perpetrated in Afghanistan by Australians, which found evidence of 39 unlawful killings.

The OSI was created due to the volume of evidence Brereton uncovered, which implicates 25 serving or former Australian Defence Force officers. Roberts-Smith’s arrest marks the second time a local has been charged with war crimes. The first involved former SAS officer Oliver Schulz, who was charged in 2023, with the murder of an Afghan civilian. He’s pleaded not guilty and will stand trial next year.

The war crime of murder

Roberts-Smith has been charged with one basic count of the war crime of murder under section 268.70 of the Criminal Code Act 1995 (Cth).

To see this charge stick, the prosecution will have to prove beyond a reasonable doubt that he caused the death of a person, who was not “taking an active part in the hostilities” and was neither a member of an “organised armed group”, and he did this intentionally or recklessly, during an armed conflict.

Australia’s greatest living war hero is also charged with one count of the joint commission of the war crime of murder, contrary to sections 11.2A and 268.70 of the Criminal Code.

The addition of the inchoate offence, or incomplete crime, of joint commission, under section 11.2A of the Code, to this charge means the accused intentionally perpetrated the crime “in company”, or with at least one other person. This has to involve an agreement, which can be nonverbal. And it covers a 2012 murder that Roberts-Smith allegedly committed with another soldier.

Roberts-Smith is further charged with three counts of complicity or common purpose with the war crime of murder, contrary to sections 11.2 and 268.70 of the Criminal Code.

The addition of the section 11.2 inchoate offence of complicity or common purpose means that an accused is found to have intentionally aided, abetted, counselled or procured “the commission of an offence by another person” and the crime was committed by the other person.

These charges reflect alleged instances when Roberts-Smith ordered subordinates to kill, and it does not matter if those perpetrating the killings have been themselves convicted over the incident for the ex-SAS officer to be found guilty.

The war crime of murder carries life imprisonment, including when it involves joint commission or complicity or common purpose.

The war crime of murder also carries universal jurisdiction, which means this nation can prosecute any individual from any country for the commission of this crime when it’s perpetrated anywhere on the planet.

Subsection 268.70(2) clarifies that “persons who are not taking an active part in the hostilities” do include “persons who are hors de combat”, or enemy combatants who are sick, wounded, captured or unconscious, along with “civilians, medical personnel or religious personnel”.

War crimes were inserted into the Criminal Code in 2002, while a 2016 amendment made some changes to clarify that this offence and other war crimes do apply when a soldier is involved in a “non-international armed conflict”, or a war where at least one armed non-state actor is involved.

These changes clarified that these war crimes offences don’t apply if the person harmed is a member of an “organised armed group”, or an armed non-state actor. But they do apply to members of organised armed groups, who are hors de combat.

Prosecuting the war crime of murder

The Howard government enacted war crimes offences, along with crimes against humanity and the crimes of genocide into division 268 of the Criminal Code in June 2002. This was after Australia ratified the Rome Statute of the International Criminal Court. All state parties to that treaty are required to enact the offences that are contained within the statute into their own domestic laws.

All of the crimes under division 268 of the Criminal Code carry universal jurisdiction. However, the prosecution of a war crime, a crime against humanity or genocide is not so straight forward in this country, as there is a legislated block known as the “attorney general’s fiat” that must be hurdled to progress such a case.

Section 268.121 of the Criminal Code requires that any prosecution of any international crime under division 268 requires the written consent of the Australian attorney general, and the case must be prosecuted in the name of the nation’s chief lawmaker. And section 268.122 of the Code stipulates that once the attorney general has exercised their fiat, a reversal of the decision is not possible.

This means the prosecution of Roberts-Smith has been brought in the name of Australian attorney general Michelle Rowland.

Defences against the war crime of murder

There are a number of defences open to the war crime of murder that Roberts-Smith could argue given the right circumstances.

The 2016 war crimes amendment bill inserted a defence against the war crime of murder into subsection 268.70(1A) of the Code. This entails the accused arguing that the relevant death was caused due to an attack against a military objective, which they’d reasonably expected would not result in civilian death, and this can be proven by evidence of the assessment they made preattack.

Section 10.4 of the Criminal Code contains the defence of self-defence, which is available to argue against this crime. It involves claiming an accused’s crime was the result of attempting to defend themselves or another, or to prevent unlawful imprisonment, destruction of property, or criminal trespass. It cannot be argued if enough force to kill was involved in respect of property or trespass.

The defence of duress is available to argue against the war crime of murder, and its contained in section 10.2 of the Code. This involves putting to the court that a crime was perpetrated to avoid a threat that has been made and there was no other way that the threat could be dealt with, while the offending conduct must be shown to be a reasonable response to the threat.

The defence of mental impairment is also available under section 7.3 of the Criminal Code. This involves the accused arguing that they were not criminally responsible for the offence they perpetrated as they were suffering from mental impairment. This can involve not knowing the nature of their conduct or that it was wrong or arguing that they weren’t able to control themselves.

Beyond a reasonable doubt

The question of war crimes in relation to Roberts-Smith became a national issue when a series of articles were published in 2018 by Nine newspapers alleging his participation in war crimes. This led Roberts-Smith to sue the mastheads and journalists involved. And in defending themselves, the defendants had to prove the incidents, including alleged murders, had been reported accurately.

This led Federal Court Justice Anthony Besanko to find in June 2023, that Ben Roberts-Smith had been complicit in the murders of four Afghan men. However, as this was a civil case, the incidents had only been proven to the civil standard, or the balance of probabilities. Proving an incident occurred on the balance of probabilities means it is more than likely that it happened.

However, during Roberts-Smith’s trial on five counts of the war crime of murder, the prosecution will have to prove that the ex-SAS corporal perpetrated the crimes to the criminal standard of beyond a reasonable doubt, or to the point where there is no hesitation in finding the defendant guilty.

And if the prosecution does prove any of these crimes occurred beyond a reasonable doubt, then the most decorated Australian war hero will be going to gaol for a hell of a long time.