War hero Ben Roberts Smith should not be tried in a civilian court

AFP/OSI media conference shopping for evidence against Ben Roberts Smith

By AR Williams, Canberra Correspondent

Cairns News has a question for the Australian Federal Police Commander Krissy Barrett and OSI Director Investigations Ross Barnett: “How much money has been paid by the Australian Government to Afghani or any other informants to collect alleged evidence against Ben Roberts Smith?”

“Testimony against Ben Roberts Smith only confirms the truth of killing. It does not and cannot confirm the truth of murder” Where to from here AFP, OSI and Attorney General?

By Noel Pearson, Lawyer and Aboriginal activist

“The respondent media claimed Roberts-Smith committed killings in Afghanistan amounting to war crimes. They have presented witnesses, including former special forces soldiers who served with Roberts-Smith, who support the allegations against him. But this testimony only confirms the truth of killing. It does not and cannot confirm the truth of murder,” Noel Pearson said.

Writing in The Australian (April 11, 2026), Pearson has injected an argument that is destined to be part of Roberts-Smith’s defence, opening with an expression no doubt shared by many: “Poor bugger, Ben Roberts-Smith.”

“He is, in the court of public presumption, already guilty. He stands no chance of being afforded what our system of law once called its golden thread: innocence before proof of guilt. Roberts-Smith will be denied the presumption of innocence. There is no way he will receive a fair trial. It simply is not possible now.

“In 2022, in an opinion piece in this paper (“War crime allegations must be tested in the right forum”), I made the argument that the problem with proceedings before Justice Anthony Besanko in the Federal Court at the time was that, in the words of Melbourne barrister Matt Collins, it was “a war crimes trial masquerading as defamation proceedings”.

“My motivations are different from Gina Rinehart, Kerry Stokes and other right-wingers defending Roberts-Smith who are animated by culture war instincts and agendas. My concern is injustice. I should be ashamed to fall silent when injustice is afoot. I know better than most people that these right-wing culture warriors don’t care about injustice.”

Noel Pearson is a director of Cape York Partnership, Good to Great Schools Australia and Fortescue.#

A CASE FOR KEEPING COMBAT SOLDIERS OUT OF CIVILIAN COURTS

By Leon DeBruin, South African combat war veteran

Since the arrest of Australian Ben Roberts-Smith (the most decorated living Australian soldier) a few days ago for alleged war crimes in Afghanistan 15 years ago, I have been closely following this highly divisive case in Oz. I am a South African combat war veteran.

I do not condone unacceptable conduct but I do understand the circumstances under which they occur. In fact, under certain circumstances, I may even be able to justify it as acceptable.

The reason this case is so important internationally is it is putting the entire concept of war on trial. In most civilised countries soldiers are held to account while their uncivilised opponents blatantly and excessively break every rule of war and convention. This has always bothered me. It puts the good guys at a distinct disadvantage.

We must play fair but our own people allow the enemy to be completely unaccountable. Not fair!!!

The Robert-Smith case is to be tried in a civilian court. I strongly disagree with this.

.The question of whether civilian courts should judge the actions of combat soldiers is both complex and deeply consequential. While accountability remains essential in any democratic society, there is a compelling argument that battlefield decisions should be adjudicated within military systems rather than civilian judicial frameworks. The unique nature of warfare—legally, psychologically, and operationally—demands a specialised approach rooted in military expertise.

1. The Unique Nature of Combat Decision-Making

Combat soldiers operate in environments defined by chaos, uncertainty, and extreme danger. Decisions are often made in seconds under life-threatening conditions, where hesitation can mean death—not only for the individual soldier but also for their comrades and civilians nearby.

Unlike civilian contexts, where actions are judged with the benefit of time and clarity, battlefield choices occur amid incomplete information and rapidly evolving threats. These “grey areas” cannot be fully anticipated or codified. No set of rules can account for every possible scenario encountered in war.

Judging such decisions outside their operational context risks applying peacetime standards to wartime realities—an inherently flawed and unjust comparison.

2. Rules of War and Rules of Engagement Already Exist

Combat operations are not lawless. Soldiers operate under strict frameworks, including:

International humanitarian law and the laws of armed conflict.

National military codes and doctrines.

Clearly defined Rules of Engagement (ROE).

These rules authorize the use of lethal force while prohibiting excessive or unlawful violence. They are taught rigorously and enforced through military command structures and courts-martial.

Importantly, ROE differ between alliances such as NATO and individual nations, reflecting varied operational doctrines and strategic priorities. This complexity underscores the need for specialised military tribunals with the expertise to interpret them correctly. Civilian courts, unfamiliar with the nuances of combat doctrine, may struggle to evaluate such matters fairly.

3. Psychological Realities of Warfare

War demands profound mental transformation. Soldiers are trained to confront death, suppress fear, and act decisively under extreme stress. Over time:

Appetite for risk evolves.

Desensitisation develops through repeated exposure.

Decisions are shaped by survival instincts and loyalty to fellow soldiers.

In combat, killing—abhorrent in civilian life—becomes a legally sanctioned duty. Soldiers are authorised to use lethal force, provided it is necessary and proportionate. This moral paradox cannot be judged adequately without understanding the psychological and operational pressures of the battlefield.

Some soldiers adopt coping mechanisms to function effectively, including accepting their own mortality. Others rely on rigid discipline, unit cohesion, and psychological conditioning. Upon returning home, they must unlearn wartime instincts and readjust to civilian life—a process that highlights the profound divide between the two worlds.

4. The Risk of Retrospective Judgement

Civilian courts often evaluate events with hindsight and emotional distance. This can lead to unfair expectations that soldiers should have acted differently in situations where clarity was impossible.

If troops fear prosecution by civilian authorities, it may lead to:

Hesitation in critical moments.

Reduced operational effectiveness.

Increased risk to fellow soldiers and civilians.

The notion that every soldier might need “a lawyer on speed dial” illustrates the chilling effect that external legal scrutiny could impose on combat effectiveness. Warfighters must act decisively, not defensively.

5. Military Justice Systems Are Better Equipped

Military justice systems exist precisely because the armed forces operate under abnormal and highly specialised conditions. These systems:

Understand command structures and battlefield realities.

Apply the laws of armed conflict with contextual expertise.

Balance accountability with operational necessity.

They are designed to uphold discipline and ethical conduct while recognising the extraordinary circumstances of warfare. This ensures both justice and effectiveness without undermining national security.

6. The Civil-Military Divide in Understanding Combat

Combat veterans often struggle to articulate their experiences. Killing as a professional duty is alien to civilian life, making true comprehension difficult. As a result, many veterans remain silent, fearing misunderstanding or unfair judgment.

While soldiers wish civilians could fully grasp their experiences, they recognise the limitations of such understanding. This divide reinforces the need for specialised forums—staffed by those with operational expertise—to evaluate battlefield conduct.

7. Moral and Practical Distinctions Between War and Civilian Life

In civilian society, killing is rightly condemned. In war, it is sometimes demanded. This distinction lies at the heart of military service. Soldiers are trained to defend their nations, often at immense personal cost, under conditions that defy normal human experience.

To judge wartime actions by civilian standards without contextual expertise risks undermining both justice and morale.

Conclusion

Civilian oversight is vital in a democratic society, but direct adjudication of combat actions by civilian courts is neither practical nor fair. Military justice systems are specifically designed to interpret the laws of war, evaluate rules of engagement, and assess battlefield decisions within their proper context.

Combat is unpredictable, morally complex, and psychologically demanding. Soldiers act in abnormal circumstances, make decisions in seconds, and bear lifelong consequences for their actions. While accountability must remain non-negotiable, it should be exercised by institutions equipped to understand the realities of war.

Civilian courts, lacking this specialised expertise, have limited standing in judging the split-second decisions made on the battlefield. Justice in such matters is best served within the framework of military law—where discipline, legality, and operational reality converge.

Cairns News has contacted US Secretary of War, Pete Hegseth and President Donald Trump for comment as this prosecution has serious repercussions for American Special Forces. Under the Statute of Rome, to which Australia is a signatory, any allied soldier could be prosecuted by an Australian court.