16 May 2025
The Australian Centre for International Justice (ACIJ) together with partner organisation Afghanistan Human Rights and Democracy Organization (AHRDO), welcome today’s decision by the Full Court of the Federal Court of Australia to unanimously dismiss the appeal of Ben Roberts-Smith, affirming the previous judgment of Justice Anthony Besanko in 2023.
Concluding a pivotal seven-year long chapter in the ongoing search for justice by families of Afghan victims, the Full Court unanimously upheld the previous 2023 ruling. In that judgment, Justice Besanko found that on the balance of probabilities, Roberts-Smith had committed war crimes while serving in Afghanistan, affirming that he was not defamed by The Age, The Sydney Morning Herald, and The Canberra Times—all formerly owned by Nine Entertainment—as well as investigative journalists Nick McKenzie and Chris Masters.
In the defamation case brought by Roberts-Smith against The Age, Sydney Morning Herald, and The Canberra Times, the Federal Court previously heard evidence from 42 witnesses, including three witnesses from Afghanistan who gave testimony via video link from Kabul in July 2021 after traveling from Uruzgan province. Justice Besanko ultimately decided in favour of the newspapers, finding that the newspapers had proven several of the key allegations of war crimes, including that Roberts-Smith was involved in the killing of multiple unarmed Afghan civilians.
The ACIJ notes that this case relates to civil proceedings initially brought by Roberts-Smith in August 2018, and is decided on a lower standard of proof than that of a criminal trial. Roberts-Smith is the subject of ongoing criminal investigations by the Australian Federal Police and the Office of the Special Investigator––to date, he has not been charged with any crime.
Today’s outcome is further vindication for public interest investigative journalism, which helped bring to light dozens of allegations of war crimes by members of Australian special forces in Afghanistan, reinforcing the role of public interest journalism in holding individuals and institutions accountable.
Together with whistle-blowers, survivors and human rights defenders from Afghanistan, investigative journalists have helped set in motion several processes to reckon with Australia’s legacy of military engagement in Afghanistan, ranging from criminal investigations to reform of military education and training on the laws of armed conflict.
In a conflict marked by near-total impunity for human rights violations, these processes, which will continue for many years to come, represent an important opportunity to uphold Australia’s commitment to international humanitarian law and provide some measure of justice to victims and affected communities.
Lara Khider, Acting Executive Director of the Australian Centre for International Justice, said:
“This decision is a significant milestone in the pursuit of truth, but it is not a substitute for criminal accountability. ACIJ continues to call for thorough, independent, and transparent criminal investigations and prosecutions into allegations of war crimes in Afghanistan. Justice for victims and survivors demands not only truth-telling in civil courts, but also the prosecution of those responsible for serious violations of international crimes before criminal courts.”
“Justice must also be reparative. Now that a compensation scheme has been established––albeit marked by serious limitations––it is essential that the Australian Government ensures it is accessible, transparent, and victim-centred. Proactive outreach is needed to reach all affected Afghan civilians, particularly in remote areas, so that those who have suffered serious harm from Australia’s military operations are informed of their rights and supported to access redress. This is a vital part of meeting Australia’s obligations under international humanitarian and human rights law.”
Hadi Marifat, Executive Director at the Afghanistan Human Rights and Democracy Organization, said:
“Victims and their families deserve transparency and recognition of the harm they have endured as a result of Australia’s military conduct.”
“The courageous work of investigative journalists has played a vital role in exposing serious wrongdoing and prompting public scrutiny.”
“Australia’s next steps must centre the voices of survivors and respond meaningfully to their calls for truth, justice, and accountability.”
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For media enquiries contact the Australian Centre for International Justice at: info@acij.org.au or +61 (0)433 950 787.
