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Australia’s highest court on Thursday removed the last chance for war hero Ben Roberts-Smith to clear his name of findings that he unlawfully killed four unarmed Afghans more than a decade ago.
The High Court said it would not hear his appeal against a federal judge’s civil court finding in 2023 that Mr Roberts-Smith likely killed non-combatants unlawfully in 2009 and 2012.
Three federal court judges had unanimously rejected his appeal against that finding in May.
The High Court decision leaves Australia’s most decorated living war veteran with no more legal options in a defamation case he started in 2018 when newspapers accused him of a range of war crimes.
Mr Roberts-Smith, who was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan, has never faced criminal charges, which must be proven to a higher standard of guilt beyond reasonable doubt.
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One of Mr Roberts-Smith’s former Special Air Service Regiment comrades, Oliver Schultz, is the only Australian veteran of the Afghanistan campaign to be charged with a war crime.
Mr Schultz was charged in 2023 with murdering an unarmed civilian in 2012. He has pleaded not guilty and has yet to stand trial.
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The only Australian veteran to be convicted over war crime allegations in Afghanistan has been army whistleblower David McBride.
The former army lawyer was sentenced last year to five years and eight months in prison after pleading guilty to charges associated with leaking allegations of war crimes to the media.
Classified documents provided by McBride became the source of a series of ABC reports in 2017 called the “Afghan Files”. The reports detailed allegations against Australian soldiers including the unlawful killing of men and children.
A military report released in 2020 recommended 19 current and former soldiers face criminal investigations over 39 unlawful killings in Afghanistan.