Two Afghan Victims in Roberts-Smith War Crimes Case Remain Unidentified
Two of the five men Ben Roberts-Smith is accused of murdering while serving with the Special Air Service in Afghanistan have never been identified by war crimes investigators, according to court documents seen by the Daily Mail. One alleged victim is described only as 'Person Under Control 1' or alternatively 'Enemy Killed in Action 3', while another is known only as 'Person Under Control 2' or 'Enemy Killed in Action 4'.
Details of the Alleged Murders
Roberts-Smith is accused of murdering the first unidentified Afghan male with another SAS soldier, referred to as 'Person 68', at Syahchow in Uruzgan Province on October 20, 2012. On the same day and location, he is accused of aiding, abetting, counselling or procuring an SAS rookie dubbed 'Person 66' to murder the second unidentified victim, 'Person Under Control 2'. In the context of Australia's war in Afghanistan, a person under control (PUC) generally refers to a fighting-age male taken into custody after a military engagement.
Roberts-Smith, 47, was charged on Tuesday with five counts of 'war crime - murder' following a five-year joint investigation by the Australian Federal Police (AFP) and the Office of the Special Investigator (OSI). His arrest came almost three years after he unsuccessfully took defamation action against Nine newspapers, which published reports accusing him of war crimes in 2018.
Challenges in Identification
A legal source close to the civil case confirmed that the AFP and OSI still do not know the names of Person Under Control 1 and Person Under Control 2. 'They have never been identified,' the source said. 'All they have are photos of dead male Afghans taken by our guys at the end of a mission. They are not crime scene evidence but are now being repurposed in a criminal case.'
The source explained that such photographs were taken to identify individuals killed in action, assess whether they were high-level targets, and record any weapons located. 'They aren't identified in the sense we use the word,' the source added. 'It's not like they had ID on them. I should add the "identification" of these individuals even with a name is sketchy at best. It usually involves an Afghan saying, "You killed my relative, pay me money" - which then occurs.'
Other Alleged Victims and Context
Three of Roberts-Smith's alleged victims are named in his court attendance notices. He is accused of aiding, abetting, counselling or procuring Person 4 to kill Mohammed Essa on April 12, 2009, at Kakarak in Uruzgan Province. He is also accused of intentionally causing the death of 'a person identified as Ahmadullah' at Kakarak on the same day. Mohammed Essa was the father of Ahmadullah, whose prosthetic leg was taken as a trophy after he was killed and later used as a drinking vessel at the SAS's Tarin Kowt base.
Roberts-Smith is further charged with aiding, abetting, counselling or procuring Person 11 to kill Ali Jan at Darwan in Uruzgan Province on September 11, 2012. Ali Jan was the shepherd Nine newspapers claimed Roberts-Smith kicked off a cliff before ordering his execution. Each alleged victim is described in the charge sheets as 'not taking an active part in hostilities' at the time of their death.
Investigation and Arrest Details
OSI director of investigations Ross Barnett said prosecuting war crimes allegedly committed in Afghanistan was 'incredibly complex'. He noted that investigators have been examining 'literally dozens of murders alleged to have been committed in the middle of a warzone, in a country 9,000km from Australia that we can no longer access'. Barnett explained the challenges: 'We don't have access to the crime scene... So we don't have photographs, site plans, measurements, the recovery of projectiles, blood-spatter analysis, all of those things we'd normally get at a crime scene. We don't have access to the deceased - there's no post-mortem, therefore there's no official cause of death.'
A source close to Roberts-Smith said his arrest was staged to 'inflict maximum distress' on the father-of-two. Roberts-Smith had repeatedly offered to present himself to police if they were going to charge him, but instead, he was arrested on Tuesday morning after his Qantas flight from Brisbane touched down at Sydney Airport while he was in the company of his twin 15-year-old daughters and partner Sarah Matulin. A Nine News television camera crew had been waiting at the airport to film the arrest.
The source stated: 'Mr Roberts-Smith has lived in Queensland since leaving the Special Forces in 2012. He has never shied away from his accusers, nor sought to avoid scrutiny or place himself beyond the reach of Australian authorities.' Roberts-Smith's legal team had repeatedly told the AFP and OSI he would present himself 'at a time and place of their choosing should any charges be brought'. 'Instead, he was arrested upon arrival in Sydney during a short visit with his children,' the source added. 'In doing so, authorities chose to inflict maximum distress in front of his two young daughters. It is particularly concerning that media, including Nine News, appeared to have been notified in advance.'
Legal Proceedings and Broader Investigation
Roberts-Smith, who along with his Victoria Cross earned a Medal for Gallantry in Afghanistan, has always denied committing war crimes while serving with the Australian Defence Force (ADF). In 2023, the Federal Court's Justice Anthony Besanko found on the balance of probabilities that claims Roberts-Smith was responsible for the murder of four unarmed male civilians were substantially true.
The federal government has reportedly allocated $318 million over the past decade to investigate war crimes allegedly committed by Australian soldiers in Afghanistan. The AFP and OSI commenced 53 investigations involving allegations of war crimes by the ADF in Afghanistan, with 39 not being actively pursued subject to further evidence. Ten investigations into allegations of criminal offences under Australian law related to breaches of the Laws of Armed Conflict by ADF personnel are ongoing. One investigation resulted in another former SAS soldier being charged with murder, with a trial listed for February next year.
Roberts-Smith faces a maximum sentence of life in prison if convicted of any of the murder charges. He is expected to apply for bail next Friday and currently remains behind bars at the Metropolitan Remand and Reception Centre at Silverwater in Sydney's west.
