Australia’s most decorated soldier Ben Roberts-Smith has been arrested and is due to be charged with five alleged war crimes. 

The Victoria Cross recipient was taken into custody at Sydney Domestic Airport after arriving on a flight from Brisbane on Tuesday morning, reportedly in front of his teenage twin daughters. 

Footage captured the retired Corporal being escorted by Australian Federal Police (AFP) officers on the tarmac who were waiting at the arrivals gate as the plane touched down.

Roberts-Smith is expected to be charged on Tuesday with five counts of war crime – murder following a joint investigation between the Office of Special Investigator (OSI) and the AFP.

The charges relate to: 

• The war crime of murder, in that he intentionally caused the death of a person, on or about 12 April, 2009, at Kakarak, Uruzgan Province, Afghanistan;

• The war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 12 April, 2009, at Kakarak, Uruzgan Province, Afghanistan;

• The war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 11 September, 2012, at Darwan, Uruzgan Province, Afghanistan;

• The war crime of murder, with another person, in that they intentionally caused the death of a person, on or about 20 October, 2012, in Syahchow, Uruzgan Province, Afghanistan; and,

• The war crime of murder, in that he aided, abetted, counselled or procured another person to intentionally cause the death of a person, on or about 20 October, 2012, at Syahchow, Uruzgan Province, Afghanistan.

The maximum penalty for the offence of war crime – murder is life imprisonment.

He is expected to appear before a NSW court later today. 

AFP Commissioner Krissy Barrett confirmed a 47-year-old had been charged with five counts of war crime – murder during a press conference outside the AFP Sydney Headquarters on Tuesday afternoon.

However the Commissioner refused to refer to Roberts-Smith by name under the AFP’s usual practice.

‘It will be alleged the man was a member of the ADF when he was involved in the deaths of Afghan nationals between 2009 and 2012, in circumstances that constitute war crimes under the Commonwealth criminal code,’ Commissioner Barrett said.

‘It will be alleged the victims were detained, unarmed, and were under the control of the 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.’

Commissioner Barrett added that police will allege the victims ‘were not taking part in hostilities at the time of their alleged murder’.

The joint investigation between the AFP and the OSI, which began in 2021, has, in total, commenced 53 investigations involving allegations of war crimes by Australian Defence Force members in Afghanistan.

39 of these matters are no longer under active investigation, subject to any new evidence emerging. A further 10 investigations are ongoing.

The OSI and AFP are investigating allegations of criminal offences under Australian law related to breaches of the Laws of Armed Conflict by Australian Defence Force personnel in Afghanistan between 2005 and 2016. 

One other investigation has resulted in a former Australian Special Forces soldier being charged with one count of war crime – murder. This matter has been listed for trial in February 2027 in the NSW Supreme Court.

When asked why the investigations into alleged war crimes by ADF members in Afghanistan have taken ‘too long’, OSI Director Investigations Ross Barnett explained the investigations are ‘incredibly complex’.

‘Unlike a conventional investigation that’s conducted in Australia, the OSI has been tasked with investigating literally dozens of murders alleged to have been committed in the middle of a warzone, in a country 9,000km from Australia that we can no longer access,’ Mr Barnett said at the press conference.

‘So, the challenge for investigators is – because we can’t go to that country – we don’t have access to the crime scene, so we don’t have photographs, site plans, measurements, the recovery of projectiles, blood-spatter analysis, all of those things we’d normally get at a crime scene.

‘We don’t have access to the deceased – there’s no post-mortem, therefore there’s no official cause of death, there’s no recovery of projectiles to link to weapons that might have been carried by members of the ADF.’

Roberts-Smith sued Nine newspapers and journalists Nick McKenzie and Chris Masters for defamation over their reports in 2018, which claimed he had committed war crimes.

But in 2023, Justice Anthony Besanko found the claims that Roberts-Smith was responsible for the murder of four unarmed male civilians when deployed in Afghanistan were substantially true. 

The Age’s McKenzie and Masters were first to report details of Roberts-Smith’s arrest on Tuesday morning.

Roberts-Smith had appealed his 2023 Federal Court loss, disputing Justice Besanko’s findings, arguing that was not backed up by sufficient evidence for such serious claims. Last year, Australia’s highest court refused the former soldier’s application to appeal the Federal Court findings.

It came on the same day the recipient of Australia’s highest two military honours – the Victoria Cross and Medal for Gallantry – was ordered to pay a lump sum of Nine’s legal costs for the unsuccessful Federal Court appeal. 

The costs of the 110-day trial and the 10-day appeal are estimated to exceed $30million. 

Roberts-Smith’s High Court bid had claimed the Full Court of the Federal Court made an error in assuming he had accepted some allegations which were not re-contested during the appeal.

The articles, published in 2018, included claims Roberts-Smith kicked a handcuffed man off a cliff and ordered his execution, and machine-gunned another prisoner, taking his prosthetic leg home as a souvenir drinking vessel.

Roberts-Smith has maintained his innocence.

More to come.