KEY POINTS:
- Calls are growing for Ben Roberts-Smith to lose his Victoria Cross.
- A defamation judge ruled on Thursday he is likely a war criminal and murderer.
- The former soldier is also reportedly under criminal investigation.
Ben Roberts-Smith is facing calls to lose Australia's highest military honour after being ruled a war criminal and murderer in a civil proceeding.
Mr Roberts-Smith sought to sue The Age, Sydney Morning Herald and their affiliates and investigative journalists for defamation after they published reports in 2018 alleging he was a war criminal.
, a Federal Court judge dismissed the case, and found that the media defendants established the claims were substantially true, including that the nation's most decorated soldier had murdered four unarmed Afghan civilians.
Mr Roberts-Smith was awarded the Victoria Cross (VC) in 2011, and just eight of over 1300 awarded by Commonwealth countries have ever been revoked.
The Greens are also demanding the removal of from a display in the Australian War Memorial.
But can he actually lose the award, and how could Thursday's ruling impact any criminal investigation?
Here's what you need to know.
What happens to his VC?
That's complex and unclear.
No Australian has lost their VC, and Australia Defence Association executive director Neil James accepts we're in "new ground".
Mr James says awards aren't meant to be revoked except in "extreme circumstances", and believed it would require a criminal conviction for a "disgraceful" offence.
"In my opinion, a conviction for war crimes would constitute extreme conditions," he said.
Mr James said the traditional approach, dating back to the 1920s, had been only to revoke an award when it was gained falsely, or if the incident it was awarded for involved a criminal offence. There is no suggestion Mr Roberts-Smith committed a crime during the incident he was honoured for.
Ben Roberts-Smith during a break in proceedings at the Federal Court of Australia in March last year. Source: AAP / Bianca De Marchi
"[So] that [precedent] doesn't apply legally, in my opinion. But I think it would apply in discretionary consideration; it would have to be one of the factors you'd have to take into account," Mr James said.
The Department of Defence declined to answer when asked if the defence minister has the power to revoke a VC.
Sydney University international legal expert Ben Saul disputes the need for a criminal conviction, arguing revocation was "pretty much [the] unfettered power of the minister".
"You have to think about it just in terms of common sense, and whether it would meet the pub test," he said.
"If somebody has been found by a court to have been involved in murders, is that the kind of person who should continue to hold the Victoria Cross? I think the answer to that is: almost certainly not."
The Brereton Report has sparked separate criminal investigations. Source: AAP / Australian Department of Defence
Inside the government, there is concern revocation without a criminal conviction would set a problematic precedent, but public opinion may also be a factor.
"Public opinion would insist it be based on a criminal conviction of beyond all reasonable doubt ... and [that's] what the veterans' community would expect," Mr James said.
Eight British and Irish soldiers have had their VCs revoked following criminal convictions, though none since 1908. Some were minor crimes, including one who stole a cow.
The Australian War Memorial has not yet revealed whether a painting of Mr Roberts-Smith, or a display of his medals and uniform, will be removed.
Could this judgment lead to a conviction?
That's separate.
The Office of the Special Investigator (OSI) and the Australian Federal Police (AFP) are looking into allegations of war crimes in Afghanistan.
The 2020 Brereton Report found credible evidence of 39 murders committed by Australian troops, excluding so-called "fog of war" incidents. It did not name Mr Roberts-Smith, though the Nine newspapers in January reported he is under OSI investigation.
In March, the first murder charge was laid against a former SAS soldier, who allegedly shot an unarmed Afghan civilian lying in a wheat field.
Dr Saul accepted Thursday's ruling would raise public expectations over criminal prosecution of Mr Roberts-Smith, but said "nothing automatically flows" from the civil case.
Civil trials are based on probability - the judge found it was more likely than not that Mr Roberts-Smith committed murder - but criminal trials require guilt to be proven beyond a reasonable doubt.
"The OSI has to independently gather all the evidence it needs to put on a criminal prosecution ... They could well be interviewing certain kinds of witnesses - Australian and Afghan - and gathering other evidence," Dr Saul said.
"They may find more evidence; they have more coercive powers to bring witnesses to the stand."
But allegations of this severity require a jury trial, and Dr Saul said finding an unbiased jury may be complex in the short-term given the media coverage of Thursday's ruling.
"There now is so much widespread belief that he's a war criminal and a murderer, so there would need to be very careful instructions from a judge to a jury to ensure that jurors aren't swayed," he said.
"One important factor will be a gap in time between this judgement and the criminal trial, to allow some of that media coverage to subside, so that fairness to Mr Roberts-Smith can be ensured."
Defence minister Richard Marles declined to comment on the ruling, noting the prospect of an appeal. And Opposition leader Peter Dutton was also wary of weighing in, warning it could prejudice a future case.
"For a lot of us as former defence ministers, we need to be careful. If there is a criminal investigation on, we may well be called as witnesses," Mr Dutton told Nine's Today Show on Friday.
Members of the Australian Defence Force can access the Defence All-hours Support Line on 1800 628 036. Open Arms provides free and confidential counselling and support for current and former serving ADF members and their families on 1800 011 046.
