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Australia’s involvement in Afghanistan since the 2001 US-led invasion, has been characterized by a toxic and controversial legacy. Over the years, the ADF or the Australian Defense Forces gained notoriety for committing egregious human rights violations against innocent Afghans fleeing the tyranny of terrorist groups such as Al Qaeda and often becoming ‘collateral damage’ due to the International Security Assistance Force’s operations. One such case in Australia’s unenviable legacy is that of Ben Roberts Smith, a former soldier whose actions came under scrutiny in 2017. In June 2023, he lost his defamation case. A closer look at the crimes he committed alongside his comrades underlines exactly why the process of transparency and justice for the average Afghans must continue. 

There is little denying the fact that since the 2021 takeover of Kabul, America’s military involvement alongside allies such as Australia in Afghanistan has been an abject failure. One shouldn’t lose sight of crimes committed against humanity, however. Average Afghans who are reeling from poverty, unemployment, a financial meltdown, and the threat from the ISKP in 2023 have received no compensation despite the fact that their lingering predicament is due to war crimes committed against them. In Smith’s case Judge Anthony Besanko who has been serving as the judge of the Australian Federal Court since 2006, ruled that his defamation case against the Sydney Morning Herald, the Age, the Canberra Times and other entertainment channels was inadmissible. By citing the balance of probabilities, Judge Besanko ruled that Smith murdered three Afghan men in broad daylight and violated rules of military engagement in the process. 

The judgment is based on a controversial track record. One controversy deals with the killing of an ‘alleged’ Taliban spotter during the 2006 Battle of Chora-Pass. Back then, Robert Smith and patrol 2IC Matthew Locke pursued a lone Afghan teenager whose only crime was to approach the patrol observation post of the ADF. In an oral account provided to the Australian War Memorial, Smith stated that there were ‘two armed insurgents’ instead of one teenager which constitutes a classic case of misrepresentation. Furthermore, in 2009 Smith ordered the killing of an elderly Afghan man seeking refuge in a tunnel in an otherwise bombed out compound while another disabled man with a prosthetic leg was murdered using a Para machine gun. Smith was complicit on both occasions. 

Then comes the infamous 2012 assault on the village of Derwan where a handcuffed man was kicked off a cliff by an Australian special forces soldier. The assault, detailed in a 2018 investigation by ABC Fairfax, reported that Smith was one of the small numbers of ADF officers who were under investigation for playing a role in the incident. Expectedly, the allegations were brushed aside by Smith despite incontrovertible evidence of bullying other soldiers and engaging in domestic violence by female compatriots. 

In light of this, such crimes while the controversial invasion of Afghanistan was taking place in 2001 should have been held accountable the moment initial reports surfaced. However, Australia’s justice system has vacillated between outright dismissal of charges against Smith as was the case in 2020 by the Federal Court to dealing with defamation proceedings against outlets from Smith in 2021. This is despite the fact that independent sources such as the Agency France-Presse, unraveled Smith’s plausible deniability of his war crimes by conducting a probe while revealing that the Australian officer either buried evidence implication him or destroyed it. This tampering of evidence allegation was also echoed by the Age in 2021. Further evidence comes from ‘Person 16’ who was a colleague of Smith and requested anonymity. He told the Federal Court in 2022 that Smith shot a teenager and bragged about it.  

It took 22 years since the Afghan war took place in 2001 and approximately 11 years since the Darwan Mission in 2012 took place, and murder allegations against Smith were eventually proven in Australia. That in itself, is a travesty for justice in Australia that despite years and years of litigations, evidence, and proceedings, criminals such as Smith remain unscathed and operated with impunity. Australia being a nation that hosts a large Afghan diaspora consisting of refugees and asylum seekers is expected to ensure that such cases are wrapped up, particularly given its controversial involvement in the Afghan war. Instead, a country that touts itself as a model of democracy and human rights and differs significantly from the United States policy of exhibiting military dominance grossly failed to account for the Afghan civilians who died until 2023.  

The civil judgment handed out makes Smith liable to paying millions of dollars of costs to newspapers for defamation. However, the real cost that should be payed is to channelize the profits he gained from this consultancy firm RS Group Australia that was established in 2013 to the impoverished Afghan people. Sadly, such possibilities remain distinct as Australian foreign policy continues to be aggressively fixated towards upsetting peace in the South China Sea, creating regional divisions through quasi-formal organizations such as the Quad and going by the American playbook on subjects such as Ukraine. Reparations for the Afghan people remains a distinct afterthought. 

Nevertheless, the exposure of criminals such as Ben Robert Smith reveals a toxic and criminal legacy. The ADF has committed crimes against humanity in Afghanistan and is responsible for its current predicament.