Ben Roberts-Smith

[onetrack]

8 hours ago, Admin said:

A person plants an IED yesterday and kills 5 Australians. The next day on his way to pick up some more IEDs to plant along the road meets up with an Australian walking along the road. The Australian says, hello, you are unarmed so on your way, and have a nice day sir.

 

Now turn that around a bit. You are the Australian soldier walking down that street. Those 5 Australians who were killed were your mates. You meet up with that guy walking down the street...how are you going to feel, are you going to be able to hold back your angar, your emotions...or are just going to put a bullet through that bustards head. But wait, he is unarmed!!!

Regardless of how you feel, if you are a professional Australian soldier, you cannot shoot a person under the circumstances Ian describes.

 

1. You must be 100% confident the person you are about to shoot is an "enemy combatant". Just thinking that the bloke you're looking at, is the bloke who did the bombing, and you can shoot him on the spot, goes against all Australian military training.

 

2. The suspected enemy combatant has to either be in military uniform of a known enemy, carrying a firearm, failing to stop when hailed, running away when hailed, or be caught in the process of carrying out an enemy action (arming a bomb, carrying explosives, burying a booby trap, etc).

 

3. If the suspected enemy combatant doesn't engage with you, and fails to stop when hailed, you can fire warning shots to try and prevent them from running away. If you decide that the person is definitely an enemy combatant attempting to escape, you can decide to shoot to kill - but if the person is then later found to be a frightened civilian, you will then face a grilling from your commanding officer and then potential charges of unlawful killing.

You can face military courts that administer Military Law - and in some cases, you can even face civilian investigation for war crimes, if your behaviour is bad enough. Shooting unarmed prisoners is most certainly a war crime - but it's happened before, definitely in WW2, and quite possibly in Korea and Vietnam.

 

When I was in Vietnam, I has two chances to kill people I was certain were enemy combatants. In the first case, six of us were riding in the back of an open-top LWB Landrover through a village when a Tuk-Tuk went in the opposite direction and it stopped, due to traffic congestion. Our Landrover stopped as well at the same time, due to congestion.

In the back of this Tuk-Tuk was a young man dressed in a black pajama outfit, which was the "unofficial uniform" of the Viet Cong - and it was also a fairly common dress style for farm peasants.

 

This young man glared at me with a face that was so twisted and malevolent, and filled with murderous hatred, it actually shocked me. To me, his face appeared virtually black, such was the level of murderous hatred, the likes of which I've never encountered, before or since. As our eyes locked, and my interest in him ratcheted up a level - he flew out of the back of the Tuk-Tuk, running for his life.

 

At that point, I knew I was looking at an enemy combatant, a member of the VC, and he'd probably already killed Australian soldiers. I could have shot him, I had an SLR between my legs with a full magazine (we never went anywhere without our trusty SLR, and it was an offence to put it down, out of reach) - but I chose not to, because - (A), I could not be 100% sure he was an enemy combatant, (B) it was fairly crowded village area, and civilians could have become casualties, and (C) I had not challenged him and called on him to stop.

 

If I had shot him, I would have been interrogated over the shooting and asked to explain the reasons why I chose to shoot. I could more than likely have gotten approval from my CO for shooting him - especially if no family member complained - as would have have been the case, if he was VC.

 

However, I "erred on the side of caution", and don't really regret not initiating any kind of shooting response. Perhaps that bloke got away with murdering Australian troops - or perhaps he was just an angry and bitter supporter of the Viet Cong, with a hatred of the Australian "invaders" of his country. I'll never know.

 

The second time I had the chance to shoot suspected enemy combatants, I was on picket duty in a raised part of a bunker in a fenced compound adjacent to our road base quarry, in the North of Phuoc Tuy Province.

The whole area was a hotbed of VC and NVA activity and the nearby village was known to be under VC control. I was on picket duty at 2:00AM, hunched over an M60 MG, fitted with a Starlight scope.

 

I was checking the area out front of the bunker through the Starlight scope, looking for enemy movement - when I suddenly spotted several figures, right at the extreme range of the scope, moving about. It was a dark night with little Moon and the Starlight scope vision was lower quality than when there was some light available from the Moon.

I sat and watched these figures moving around for maybe 20 minutes. Were there actually people there, or was I imagining things? Was it enemy combatants trying to test or probe our defences, or preparing to launch an attack?

The wee small hours are the best time for an attack. Or was it just peasants going to work early to avoid the heat (not unknown - but they usually didn't appear until just before sunrise).

 

I did nothing. I wasn't prepared to shoot without a more substantial proof that there was actually people there, and that they were actually enemy. The figures melted away after about 20 mins, and nothing happened. After knowing what I know now, I am pretty well convinced I did see enemy combatants up to no good (possibly planting mines or booby traps) - but they got away unharmed.

I don't really regret not starting shooting - I could probably have nailed several of them in seconds with an M60, they're a deadly piece of weaponry - but there's no knowing whether I could've killed civilians, either. However the area was under curfew and civilians found in curfew areas stood a very good chance of being shot at any time.

 

Of course, if I was an American soldier, I would've let rip with at least a couple of hundred rounds of 7.62 cal ammo, just to make sure that anything even remotely suspect out there was wiped out.

 

Edited June 7, 2023 by onetrack

[Old Koreelah]

OT it sounds like you did a very professional job in an almost impossible situation, so I hope you sleep easy.

[spacesailor]

factunter

" what would we all do if occupied " .

Old England has been occupied by most of the old world , look how they were treated after that  ' war to end all war's '.

If the enemy ' chops the head off their foe ' . WHILE bound & kneeling ,. You can see there is .

NO difference to throwing a ' hand-cuffed then shot prisoner ' off a steep hill .

spacesailor

[octave]

2 minutes ago, spacesailor said:

If the enemy ' chops the head off their foe ' . WHILE bound & kneeling ,. You can see there is .

NO difference to throwing a ' hand-cuffed then shot prisoner ' off a steep hill .

Yes, both of these acts are barbaric.

[facthunter]

They still have public executions and people leave those places in their thousands to go to DESPISED places like Europe. These are oppressive regimes. We have it relatively easy here by comparison and we are soft and whingey and wouldn't really know what doing it tough was. It CAN be better and should be though. Nev

[onetrack]

There's a couple of good ABC articles below about BRS, and the toxic SAS culture in Afghanistan. Hasties comments are worthy, but Mick Ryans article summarises the situation very well.

 

https://www.abc.net.au/news/2023-06-14/ben-roberts-smith-andrew-hastie-defamation-finding/102478056

 

https://www.abc.net.au/news/2023-06-06/ben-roberts-smith-adf-military-special-forces-unethical/102439418

[Marty_d]

I wouldn't trust a lot of what Hastie says, he's thrown his lot in with the morons - https://www.theguardian.com/books/2023/jun/13/tony-abbott-and-john-howard-join-jordan-peterson-led-group-looking-at-meaning-of-life

[facthunter]

IF A Bot is involved , that's all you need to know. Nev

[Marty_d]

3 hours ago, facthunter said:

IF A Bot is involved , that's all you need to know. Nev

There's so much insanity in that particular group. 

[facthunter]

Superiority Complex's and illusions of Grandeur. Their world is formed to justify their existence as they are so gifted  and special as to see it as a "Calling".  You can't believe ONE word that Abbot says.  IF He recommends some thing, don't touch it with a barge pole.   Nev

[Jerry_Atrick]

In fact, do the opposite of his recommendation

[facthunter]

HIS opinion is valuable in THAT context.. Nev

[onetrack]

I see where BRS now has to cough up for the defendants costs in his failed lawsuit action against the media. However, I have little doubt he won't have to find anything out of his own pocket, his good mate Kerry Stokes will pick up the tab. There's major loans recorded from KS to BRS, and no doubt those loans will simply be written off, KS won't miss the millions wasted.

 

https://www.abc.net.au/news/2023-06-29/ben-roberts-smith-failed-defamation-costs/102539508

[facthunter]

As long as it's his money and not shareholders. He (K Stokes) HAS taken it upon himself to support BRS but there's a media fight in there too.  Nev

[onetrack]

Although this thread is nearly 2 years old since the last post, the Ben Roberts-Smith saga continues, with Roberts-Smith continually protesting innocence against the legal findings against him - and his well-heeled billionaire supporters continuing to throw vast sums into his defence. Kerry Stokes is apparently up for a $13M bill for Roberts-Smith's last legal attack - which he lost. I guess Kerry won't miss $13M, it's loose change to him.

 

Now Roberts-Smith is planning an appeal to the High Court against his last legal loss. But it appears an appeal is not something that can be done at will, he has to prove there are substantial reasons, such as new evidence, that exonerates him.

 

It will be an uphill battle for him to get this appeal up, but I guess the lawyers with eyes on the golden casket that appears in front of them endlessly, will find a reason.

The latest news is that BR-S has found another billionaire backer - in the form of Gina Rinehart. Talk about continually backing the wrong horse - Gina's choice of favourites (political and otherwise) would send her broke on a regular racetrack.

 

But the article that caught my eye, is the one below. It strikes directly to the heart of Ben Roberts-Smiths problem, and is 100% correct in its summary, IMO.

 

https://www.watoday.com.au/national/roberts-smith-s-rabid-band-of-supporters-has-an-outspoken-new-member-gina-rinehart-20250522-p5m1eb.html

[nomadpete]

Paywall.

Can't read it.

[onetrack]

I must be special, then, the site lets me read everything on there with no subscription. Perhaps they insist that Tasmanians be kept in the dark, information-wise?  🙂

 

You can sometimes get around paywalls by clicking on the "Site information" menu at the start of the URL and by disabling Java.

 

Here is the full text, courtesy of WAToday. It's an opinion piece by Chris Masters, who I think you would know, and who possesses some level of respect amongst the journalist set.

 

 

OPINION:

 

Roberts-Smith’s rabid band of supporters has an outspoken new member – Gina Rinehart
Chris Masters
Investigative journalist
May 25, 2025 — 3.00am

“What went on over there, stays over there.”

“You can’t judge combat from the comfort of an armchair.”

 

“What right have you to tear down our heroes?”

“It’s war, for god’s sake.”

 

Since the first public challenges to Victoria Cross recipient Ben Roberts-Smith’s reputation in 2017, those words, this retaliatory refrain, has been unrelenting and unchanged. All in the face of profound evidence revealing Australia’s most decorated living soldier is a war criminal.

After last week’s 245-page rejection of Roberts-Smith’s Federal Court appeal and Justice Anthony Besanko’s 726-page ruling in 2023, the keen eyes of four judges have now found to a civil court standard that Roberts-Smith murdered four captives in Afghanistan.

 

Under the Geneva Convention and Australia’s own laws of armed conflict, executing detainees is unlawful. But there are rules and there are norms, and the norms according to the “it’s war” apologists are based on an insiders’ “take no prisoners” realpolitik.

Within the Defence diaspora, online debate runs hot and loud. The “I stand with Ben” brigade is undeterred by the court rulings.

 

Brigadier Adrian d’Hage, former head of Defence public relations who was awarded a Military Cross for his service in Vietnam, is taking them on. And he’s far from alone among soldiers with combat experience disavowing the so-called realists’ justification for murder.

“That is not the way we fight. We have a long and hard-won reputation as being feared fighters, but fighters who engage according to the Geneva Convention,” d’Hage says.

Given many critics’ apparent aversion to examining those pages, here is a distillation of key evidence.

On April 13, 2009, Ben Roberts-Smith kicked an old man to his knees and instructed a junior soldier, in an exercise of “blooding”, to shoot him in the head. Soon after, he frogmarched a second Afghan man fitted with a prosthetic leg, threw him to the ground, and killed him with a burst of machine gun fire.

 

On October 12, 2012, a third unarmed and detained man was executed by an Afghan partner force member upon Roberts-Smith’s instruction.

And on November 11, 2012, Ali Jan, a father of three with no established links to the Taliban, was handcuffed and kicked over a small cliff by Roberts-Smith, who then ordered two comrades to drag him to cover, where he was shot dead.

 

At numerous speaking events, Age investigative journalist Nick McKenzie and I have argued the following:

It is morally wrong to kill or order the execution of captives.

It is strategically wrong because it turns the population further against your mission. All those Australian soldiers bravely patrolling the fields of Uruzgan as a protective force against the Taliban were placed at greater risk.

And it is wrong to force an act upon a fellow soldier so destructive of conscience and self-respect.

Soldiers who have earned the Special Air Service Regiment’s sandy beret are rightly proud. When they returned to civilian life as psychological wrecks because of what they saw and did, as did occur, the damage was obvious.

From my own observation, the self-harm to the regiment was the main reason for a brave group of Special Air Service Regiment soldiers to speak up. Nick and I both know they did so with extreme reluctance, all under subpoena, because of a view within the ranks that dobbing in your mate was a worse sin than exposing a war crime.

That view was shared by members of the uber wealthy.

 

Billionaire Kerry Stokes has spent millions on Roberts-Smith’s case. Multi-millionaire John Singleton funded a full-page newspaper advertisement describing attacks on the war hero as “disgraceful”. And now Australia’s richest person, Gina Rinehart, is quoted querying why this “brave and patriotic man” should be “under such attack”.

I can only wonder what is in their minds. Do they believe that in their real world, ruthlessness is a necessity that should be honoured?

Last December, my brother Roy and I spoke to a well-heeled audience of Aussie expats in Singapore. We were warned ahead of time that there would be a pro-Roberts-Smith sentiment and opposition expressed to our reporting.

The day before, Roy and I had walked the grounds of the Alexandra Hospital. We found a small plaque commemorating the massacre of 250 patients and staff by Japanese forces on February 14, 1942.

I spoke the next day of the shock that is still felt about those helpless victims being dragged into the garden and bayonetted to death. And I asked how we could condemn the Japanese while excusing our own.

There was no answer.

 

I am with Albert Camus, who said: “In such a world of conflict, a world of victims and executioners, it is the job of thinking people not to be on the side of the executioners.”

 

Chris Masters is a Gold Walkley award-winning journalist and author. He was the first Australian journalist to be embedded with special forces in Afghanistan.

 

 

Edited May 25 by onetrack

[Marty_d]

If Gina supports something there's a fair bet it's wrong.

But yes his appeal was rejected as they found no flaws in the first judgement. 

[Jerry_Atrick]

The defence the journalists and SMH have used to the accusation of defamation was that, on the balance of probabilities, the facts they allege that constitute a war crime did happen. This means that, to the civil standard of proof, which is all that is needed in defamation cases as they are civil cases, BR-S is most likely to have committed war crimes. It hasn't been tested to the criminal standard of proof, which is beyond reasonable doubt. I am not sure if it would be a civilian or military court that decides it (and I think military court cases can be appealed to the High Court, but don't quote me on it - if they can I would imagine it would be behind closed doors).

 

BR-S has tried to use what defamation laws to prove his innoncence. Defamation laws in Australia are generally regared as the ones most likely to favour the claimant/plaintiff, of which BR-S is in this case. It would appear that so far, the courts have held despite this alleged bias in the law, he isn't benefiting fom it and the defence of fact is is justified.

 

As OT points out, there restrictions on what one can appeal to the High Court. New evindence could be one, but I think that would go to a state supreme court or the federal court. Generally, they would entertain an appeal where, on a prima facie basis, there is a material/manifest misapplication of the law, or wherre the facts point to the need for a clarification of the law - i.e. interpreting the law in some series of events or circumstances that have not really been tested before. And sometimes, it can be justiufied that, where the point of law applicable to the facts has been ruled in state courts, of the Federal court, but it is of significant enough importance, that the HHigh Court deems it to be settled by the highest court of the land.

 

I am not sure thjat, from a legal perspective, there is anything new about this case in terms of defamation law. Yes, it is high profile and yes, the defamation is about allegations printed about war crimes, but in defamation terms, investigative reports detailing a person's potential crimes and liability before police or courts have got near it happen all the time. It is one way that perpetrators are brought to justice. So, from what I have seen, there is nothing new to apply to the defamation laws, and I would be very surprised if the circumstances haven;t been tried and appealed before (I do tort and defamation starting in July).

 

As we don't know all of the details of the case, then there may be somethng there, but from what I have seen, this seems open and shut from an application to appeal the decision perspective.

 

What I would like to know is why criminal charges haven't been laid yet? It does not flow that charges are laid automatically if the offence is proved to the civil standard of proof; on investigation of criminal charges, the prosecution team may decide that there is insufficeint evidence to convict to the standard of beyond resonable doubt.

[spacesailor]

So .

Having sat on the outside & not having an interest. 

has the soldier who shot an innocent man  ( on BR-S orders ), been found guity  of murder. ! .

IF SO , ' BR-S ' must be guilty .

if not he must be innocent. 

spacesailor

Edited May 26 by spacesailor
Missed word

[Jerry_Atrick]

It's not that simple, Spacey.. First, it would be dealt with under military law, I guess, and I have no ideas of what that entails. But secondly, under civilian law,  not all deat results in murder. There is murder, manslaughter (2 types - voluntary and involuntary). In New South Wales, there is assault occasioning death. Then there is death by dangerous driving, etc.

 

And as I understand, BR-S is alleged to have did the deed in at least one instance.

 

Under international law, the sooldier who pulled the trigger under orders is deemed as guilty as the commanding officer that ordered it. But there are mitigating circumstances and defences, which may let the guard off. I don't know them all.. but here are a couple that would be availed under civilian law of murder in most commonwealth based jurisdiction:

• He was an innocent agent, meaning he was commanded in such a way that it was uinreasonable for him not to do it. Given the international law context, this would be highly unlikely. However, while this is usually used where adults have foced children to do the act  - the child being the innocent agent, and to ensure that fault lay where it actually was, it has been successful with adults where the innocent agent is either mentally impaired, or under significant duress.
• You have to have the requisite level of intent. It varies slightly from most states and NSW, however, NSW requires an intent (foreseeability and desire to do something) or reckless indifference to human life (foresseabillity - didn't want to do it, but went through with it anyway - in this case with respect to the possibility of bringing about someone's death). Neither may have had the requiusite level of intent..
• There may have been some valid defence in the case of the person who pulled the trigger.. such as a diminished mind, self defence, etc.. that may pull it back to a manslaughter charge

And for lesser than murder offences, the requirements of proof are not as high.

 

So, just because the person who pulled the trigger got off, does not mean that he will be found guilty, but does not change the fact that BR-S ordered, or commanded it.

 

Secondly, the question of causation for murder or manslaughter would be a difficult one. BR-S may have commanded the murder, but was it his actions that caused the death, or what it that of the person who did the killing? Conventional law would say the person doing the killing, except BR-S could be held liable through the doctrine of joint criminal enterprise.. And I think that would be test.

 

But we are not talking civilian law; we are talking war crimes. I really don't know much about it but I would think the war crime would be commissioning or commanding an action in violation of the Geneva Convention, in this case, intentional killing of a captive (with no good reason) and intentional killing of a civilianm again with no good reason. I am sure the words would be more technical, but you get my drift.

 

And, indeed, he may still be being investigated while the case may have already been made out against BR-S; there is no dependency to start one before another.

 

And, all of the players in the law enforcement function have discretion - it is well established that, even in a joint criminal enterprise, that just because the crown may charge one person with a lesser offence than the other person for doing the same thing in the enterprise, does not availa the one charge with the more serious offence a right to have that dropped to the lower offence of his or her partner in crime.

 

So, it doesn't follow and it is not even logical that because soldier hasn't been convicted of murder (or some other offence), that you have to let BR-S go..

[facthunter]

It reflects badly on those who try to abide by the Geneva Conventions. While we train soldiers to KILL,  there ARE rules limiting how you can go about it. Nev

[spacesailor]

If one person admits to ' murder ' he should be tried for that murder he committed. 

it's the law  .

Even admitting a crime on this forum could get you ' prosecuted ' for your admitted crime ! .

spacesailor

 

[Jerry_Atrick]

Although a confession may result in a trial for murder, it is not necessarily the case. People confess for all sorts of reasons including pressure, guilt, or wanting to come out of the cold - as well as remorse for what they have done. Or they do it to protect a loved one from the clink. Different mental states will also weigh on a confession.

 

What will definitely happen as the result of a free and voluntary confession of anything, particularly murder is an investigation. Remember, the bar to proving murder is quite high and someone saying they murdered them will not necessarily go to trial if there is not enough supporting evidence, or they may go to trial for a lesser offence.  I read an article not too long ago that in Australia, about 20% of murderers who were convicted mainly on the evidence of a confession have had their convictions quashed since. Admittedly, a lot of this was where the police conduct in those confessions was of questionable nature, from downright threats and duress to leading questions and refusing answers until the right ones that matched the confessions were provided.

 

Just because someone confesses to something doesn't mean they will go to trial for it. The courts will still want some evidence to back up the confession that meets the bar for finding guilt.

[spacesailor]

That's my point .

Freedom for one murderer .

and not for the next .

Our justice scales are in need of a yearly calibration. 

spacesailor