Ben Roberts-Smith, the former decorated Australian soldier in the elite Special Air Service Regiment, was finally arrested for alleged war crimes he committed in Afghanistan between 2009-2012.
This arrest comes years after the crimes, but also, three whole years after a Federal Court rejected his lawsuit against journalists who reported on his crimes, meaning that there has been a strong evidence base against him, including testimonies from Australian soldiers.
Roberts-Smith’s arrest also comes more than seven years after the initial arrest of former Australian Army lawyer and whistleblower David McBride, and nearly two years since he was sentenced to five years and eight months to prison for leaking crucial evidence about the actions of Roberts-Smith and others.
Roberts-Smith’s arrest and prosecution are good things. I hope he gets a fair trial and I’m looking forward to seeing the outcomes.
However, at the same time, I have concerns with the discourse that marks him as an outlier and a scapegoat, while the criminal war, itself, against one of the world’s poorest nations is retroactively whitewashed.
The entire war in Afghanistan has been a crime, which will likely never be fully answered for.
The only legal basis for the war was United Nations Security Council resolutions 1368 and 1373, which were passed in 2001 as alleged self defence measures after the September 11, 2001 attacks.
However, that basis was flimsy at best.
Legal analysis from 2011, around the time that Robert-Smith was alleged to have committed the murders, argued that the war has long lost any legal basis it claimed to hold.
Australia’s support for and participation in the war and occupation is even flimsier than the United States given that Afghanistan did not attack Australia yet it decided to join the US’s criminal war.
That war killed hundreds of thousands of Afghans; a conservative estimation of 172,000 is widely quoted, but the real number likely to be much higher.
This should also be remembered in the context of the current dismantling of international laws and institutions, as part of Israel’s genocide in Gaza — further normalising genocidal wars at the whims of “leaders”.
The current discourse around the arrest of Roberts-Smith is full of praise for Australia’s institutions in finally bringing him to account. It is tempting to celebrate as it is a hint of consequence finally meted to alleged perpetrators of war crimes.
Who will prosecute Australia’s leaders who sent Roberts-Smith to an illegal war?
Who will prosecute the thousands of Australian soldiers who willingly participated in this illegal war?
Shining a spotlight only on the actions of one soldier, and not on the war itself, could be a way of insuring the other higher-ups involved in this illegal war will never face the consequences of their actions.
All the while, McBride is still locked up in a Canberra prison with more than 3.5 years of his sentence still to go.
Who will prosecute John Howard, the Prime Minister who sent Roberts-Smith and his ADF colleagues to an illegal war? And what about the other Prime Ministers who continued Australia’s direct involvement in this war — Kevin Rudd, Julia Gillard, Tony Abbott, Malcolm Turnbull and Scott Morrison?
Yes, prosecute Roberts-Smith but let us not pretend as if the main crimes perpetrated in the Afghanistan War were based on the decisions of this or that individual soldier.