Further Thoughts on the Case of Ben Roberts-Smith

Since the judgment in the Ben Roberts-Smith defamation trial was handed down we have been deluged with some pretty strange commentary.  Here are some examples, in no particular order.

Joe Hildebrand on Sky News claimed the finding that Roberts-Smith murdered innocent civilians or unarmed prisoners shows that we are no better than the Taliban.  Memo to Joe: the Taliban are not contemplating prosecuting any of their ranks who have committed innumerable atrocities.  They’re not bound by either rules of engagement or the rules of war.

See also: Yamashita’s shadow falls on the ADF

Another is the claim that the SAS is the ‘tip of the spear’. Part of the problem, the rewards of which we are now reaping, has been the deification of the SAS. This has led to a mindset among some SAS members that they are above the standards applied to mere mortals.  The SAS is not the ‘tip of the spear’. It is a niche unit, albeit very highly trained, established to carry out specific and limited missions.  The tip of the spear is the infantry battalion, properly supported by artillery, armour, engineers, signals and logistics. A good analogy is the bullring. The infantry battalion is the matador. The SAS is the picador.   It is partly this mischaracterisation of the SAS that has led to its misemployment in Afghanistan.

The normally incisive Peta Credlin has penned a particularly confused piece on the subject in the Herald Sun this week. Here are some excerpts (in italics) with my comments:

When does a beaten enemy go from being a combatant to a prisoner, and where’s the line between the necessary brutality of war and criminality?

Is this a rhetorical question?  Apart from the generally well understood rules of war, every military operation has reasonably well-defined rules of engagement.  Essentially, these outline the situations in which our troops can fire upon a suspected or known enemy.  They are not foolproof.  Sometimes they are breached inadvertently, i.e., a genuine mistake.  Sometimes adherence to them can lead to our own troops taking casualties.  In ambiguous situations, the commander on the ground must make the decision.  If he errs on the side of protecting his own men and, for example, innocent people are killed, the degree of ambiguity in that particular situation will determine his culpability.  If his actions are attributed simply to bad judgement, he can expect to pay some price career-wise, but he will, or should not be, subject to criminal prosecution. 

But the fact that some of his [Roberts-Smith’s] fellow warriors, as their testimony shows, regarded him as a hard “soldier’s soldier”, while others thought him a murderer, suggests that very different interpretations are possible, even if the facts can be agreed.

The fact that some of his fellow warriors supported him does not suggest different interpretations are possible.  If the facts are as found by Justice Besanko, then the only interpretation possible is that Roberts-Smith is a murderer. That some of his comrades think otherwise suggests  that they have lost their moral compass.

And while it’s pretty clear, following last Thursday’s damning court judgment, that terrible mistakes have been made, it’s far from clear that it’s just the VC recipient, and some of his SAS comrades, who’ve made them.

This is an astonishing statement from a qualified lawyer to make. Mistakes were made but not by Roberts-Smith.  They were made by a senior military command that allowed the misemployment of the SAS to such an extent that the culture that led to these events was allowed to flourish.  Repercussions must flow.  Those responsible cannot be allowed to fade into comfortable retirement, flashing their medals on ANZAC Day, without some official response. However, if the facts found to have been established by Justice Besanko, to the Briginshaw standard of probability, are subsequently proven in a criminal court, then Roberts-Smith did not make mistakes.  He committed crimes.

I’m not sure that any of us, who have never been exposed to deadly combat, can fully grasp just how psychologically fraught and morally deadening this could be.

That may be true, but soldiers volunteer and are trained for combat.  We expect them to be able to handle these pressures. That they can’t always do so is tragic and inevitable but it does not excuse criminality. 

Our country sent him and his fellow soldiers on hardest job of all, to kill people who would kill us for our beliefs, and to protect people who just wanted to live and worship in their own way. And if mistakes were made, at least some of the fault lies with us too – and with the senior commanders, now tut-tutting about the excesses of military culture.

Again, the fault for mistakes that led to war crimes belongs with senior commanders. The fault for the crimes themselves belongs to those who perpetrated them.

Of course, even in war, our soldiers are expected to act honourably, and it’s never right to harm prisoners. On the other hand, we have to accept that terrible things happen in war, especially after people have seen their mates slaughtered, or brought in prisoners reasonably suspected of making suicide vests, or being a bombmaker, only to see them released on some legal technicality.

Of course, even in war, our soldiers are expected to act honourably.  There is no ‘on the other hand’.  It is true that the pressures of war can, at times, lead to unconscionable actions on the part of some and we must take mitigating circumstances into account.  I can assure Credlin and other commentators that these factors are taken into account in the field.

Diggers in a combat sub-unit, e.g., an SAS patrol or an infantry section, form an incredibly strong bond between themselves and will go to great lengths to protect each other.  If, in the heat of battle or its immediate aftermath, someone goes too far, he may be cautioned by his mates or his section commander, but they will not dob him in.  Platoon and troop commanders (junior officers) will also turn a blind eye when necessary and where, in their judgement, mitigating circumstances outweigh the seriousness of the offence.  I am certain that in Afghanistan, many more incidents that might arguably be termed atrocities occurred and were managed in this way. 

The actions of which Roberts-Smith is accused go beyond this level.  When a significant number of his former comrades are prepared to testify against him, that tells you the bond has been broken.  And the only thing that I see doing that is revulsion at his conduct on the part of those same comrades.

It is demeaning and patronizing to those of us who have served in combat for civilians, however well-intentioned, to suggest that we can be held to a lower standard of conduct, simply because the pressure of war caused us to abandon, however briefly, our humanity and our training.

What these armchair champions of our military honour gloss over – indeed often completely overlook – is the issue of ‘blooding’.  That is, a practice, identified by Judge Brereton, in which NCOs would order a junior soldier to kill an unarmed prisoner in order to demonstrate their mettle, for want of a better word.  To prove they were worthy of inclusion in the team.  When I first heard this accusation, I cannot understate the shock I felt.  This seems to me to be the most unconscionable failure of leadership I can imagine – to force a subordinate to incriminate himself.  It is almost incomprehensible to me that it could happen in the Australian Army.  I understand that Roberts-Smith is not accused of this depravity, but it speaks to me of a culture which, to put it mildly, was not one of ‘mistakes’ made in the heat of battle or the fog of war. 

As to Roberts-Smith forfeiting his decorations, in my view there should be no move on this part until he is found guilty in a criminal court.  But if he is found guilty, he must lose at the very least his gallantry medals, because they were awarded contemporaneously with his offending.  If he had been under investigation at the time he earned his VC, it would never have been awarded in the first place.