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Australia’s most decorated living soldier, Ben Roberts-Smith, has been arrested at Sydney airport in relation to alleged war crimes.
The Australian federal police and the Office of the Special Investigator announced details of the investigation in Sydney on Tuesday.
They said Roberts-Smith was expected to be charged with “five counts of war crime – murder”, in relation to three incidents. The maximum penalty for the offence is life imprisonment.
The Victoria Cross recipient was previously accused in a defamation suit of murdering unarmed civilians while serving in the Australian Special Air Service Regiment (SAS) in Afghanistan. He has denied any wrongdoing.
The three incidents allegedly involved Afghan nationals being shot dead by Roberts-Smith, or a subordinate under his control, while he was present, the AFP commissioner, Krissy Barrett, said on Tuesday.
Guardian Australia understands the charges relate to allegations that Roberts-Smith was involved in the deaths of two Afghan males at a location known as Whiskey 108 in 2009, and the death of a man named Ali Jan in 2012. The third incident relates to the deaths of two civilians at Syahchow in 2012.
The federal court found to the civil standard of probabilities that Roberts-Smith kicked Ali Jan in the chest, sending him falling backwards over a cliff before he landed on the ground. The court found that Roberts-Smith then ordered another soldier to shoot him dead.
Roberts-Smith was expected to face court on Tuesday afternoon.
Barrett, who did not name Roberts-Smith, said it would be alleged that the 47-year-old was involved in the death of Afghan nationals between 2009 and 2012 in circumstances that constituted war crimes.
“It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan,” she said.
“It will be alleged the victims were detained, unarmed and were under the control of ADF members when they were killed.”
Barrett confirmed Roberts-Smith was arrested at the domestic terminal after travelling from Brisbane to Sydney. She would not comment when asked whether it was suspected he was due to board an international flight.
Ross Barnett, the director of investigations at the Office of the Special Investigator, said the probe started in 2021.
He said it was a “careful and professional investigation under challenging circumstances … the seriousness of these charges has deserved nothing less”.
Barnett added that, given the difficulty in even speaking to people in Afghanistan, those impacted by the alleged murders may not be aware there had been an arrest.
“The challenge for investigators is that … we are 9,000km [away]. The challenge for investigators is that because we can’t go to the country, we don’t have access to the crime scene. So we don’t have photographs, site plans, measurements, the recovery of projectiles, or blood spatter analysis.
“All of the things that we would normally get at a crime scene. There’s no postmortem. Therefore, there’s no official cause of death. So there are a lot of practical challenges that confront the investigators.”
Roberts-Smith, once lionised as the country’s most decorated Afghanistan veteran, sued three newspapers over allegations he committed war crimes, murdered unarmed civilians and bullied his comrades.
In the long-running and expensive defamation trial, he lost, with a judge finding to the civil standard of the “balance of probabilities” that he committed four murders while serving in the Australian military.
Roberts-Smith appealed to the full bench of the federal court but lost, and the high court refused to hear a further appeal. He has repeatedly denied any wrongdoing.
The prime minister, Anthony Albanese, refused to comment on Tuesday.
“I have no intention of prejudicing a matter that clearly is a legal matter, and that’s before the courts, and any comment would do so,” the prime minister told reporters in Canberra.
Roberts-Smith, a former SAS corporal, was awarded the Victoria Cross for “most conspicuous gallantry” during the battle of Tizak in 2010.
He was named father of the year and served as chair of the government’s Australia Day council.
But in 2017 and 2018, the Age, the Sydney Morning Herald and the Canberra Times published a series of articles that alleged he engaged in war crimes, including murdering civilians, and ordering subordinate soldiers under his command to execute civilians in so-called “blooding” incidents.
Roberts-Smith sued the newspapers, telling the court their stories portrayed him as a criminal “who broke the moral and legal rules of military engagement” and “disgraced” his country and its army.
The newspapers defended their reporting as true, including its allegations that Roberts-Smith was complicit in murder.
The most high-profile allegation proven in court was that Roberts-Smith, on a mission to the southern Afghan village of Darwan in 2012, marched a handcuffed Ali Jan to the edge of a 10-metre high precipice that dropped to a dry riverbed below.
Ali Jan survived the fall, though he was badly injured, and was trying to get to his feet when the Australian soldiers, having walked down a diagonal footpad cut across the cliff, reached him.
Roberts-Smith ordered a soldier under his command, known before the court as Person 11, to shoot Ali Jan dead, an order that was followed, the court found. Ali Jan’s body was then dragged to a nearby field.
The other major allegation concerned a raid on a bombed-out compound code-named Whiskey 108 in 2009.
Two men were found hiding in the tunnel: one, an elderly man, the other a younger man with a prosthetic leg. The men came out of the tunnel unarmed and surrendered.
Justice Anthony Besanko found that Roberts-Smith ordered a junior soldier on his patrol to execute the old man, before he forcibly manhandled the disabled man outside the walls of the compound, where he threw him to the ground and fired his para minimi machine gun into his prone body, killing him.
The disabled man’s prosthetic leg was later souvenired by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar, the Fat Ladies’ Arms.
Former Australian SAS soldier Oliver Schulz was charged in early 2023 with murdering an Afghan man in a war crime.
