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‘Code of silence’: Did the ADF threaten a Ben Roberts-Smith witness with criminal charges?

XD Law

August 9, 2023

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Original Source: SBS, Finn McHugh

The Australian Defence Force has been accused of attempting to impose a “code of silence” on a soldier who said he witnessed Ben Roberts-Smith kick an unarmed Afghan man off a cliff.

The Australian Defence Force (ADF) has been accused of threatening an elite soldier, who said he witnessed 

Ben Roberts-Smith murder an unarmed Afghan man, with criminal sanction if he told his story outside the organisation.

The special forces (SAS) soldier – known as Person 4 – ultimately did testify in Federal Court that Roberts-Smith kicked a handcuffed prisoner, Ali Jan, off a cliff before ordering his execution in Darwan in 2012.

An official ADF record shows Person 4 was warned in 2020 that disclosing information to the media or “any third party” could lead to criminal ramifications — and was ordered to report any other soldier for doing so.

The warning came just months after the ABC aired vision of an SAS soldier shooting an apparently unarmed Afghan man in a wheat field, and as rumours about alleged war crimes committed in Afghanistan were gathering pace.

The revelation has prompted a King’s College London war crimes researcher, Chris Elliott, to ask whether the ADF attempted to impose a “code of silence” on subordinates by limiting their ability to report atrocities.

Elliott, who has researched killings of Afghans in Darwan for the ABC, said it was vital to know who had authorised the conversation.

“What this document effectively says is: ‘It is prohibited for soldiers who witness war crimes to make ethical disclosures to entities outside the ADF’,” he said.

“In this case, that would include the International Criminal Court (ICC). Criminal redress is threatened in order to dissuade the soldier from making unauthorised disclosures about war crimes he witnessed.

“It’s a powerful example of a formal, administrative code of silence being imposed on a witness to murder. So the obvious question is: Who knew about and authorised this conversation?”

Justice Anthony Besanko found allegations that Roberts-Smith was involved in four murders, including Ali Jan’s, were substantially true, in a defamation case verdict handed down last month. Roberts-Smith is appealing the verdict.

What does the ADF document show?

The document – a record of conversation – was part of a tranche revealed during the Roberts-Smith defamation trial.

It shows that in June 2020, Person 4 was interviewed with two officers present. The names of those in the room were redacted.

Person 4 confirmed he had been “unofficially” approached by three journalists: Nick McKenzie and Chris Masters, who were writing for the Fairfax/Nine newspapers, and the ABC’s Mark Willacy.

He said he offered no comment and reported the interactions.

“You are reminded that it is an offence under the Commonwealth Criminal Code to disclose Defence information obtained in your official capacity where you are not authorised to do so,” Person 4 is warned in the document.

“Unauthorised engagement with the media or any third party constitutes grounds for criminal, disciplinary and administrative action,” the document reads.

“This may include revocation of security clearances and removal from Special Operations Command.”

“As a member of this unit you have been specifically directed not to engage with the media,” it adds.

The extent to which the ADF was aware of Person 4’s testimony relating to Roberts-Smith is not clear, but he had relayed his story to other SAS veterans in the years prior.

It is also unclear who in the ADF was aware of the June 2020 conversation.

Is the timing significant?

McKenzie and Masters had been reporting allegations related to Roberts-Smith, including that he was a bully and murderer, for more than a year.

Willacy’s Walkley-winning ABC documentary Killing Field had aired just months prior. Former SAS soldier Oliver Schulz has since been charged with murder over an incident covered in the documentary.

Military lawyer Glenn Kolomeitz was alarmed by the warning, which he believed was an attempt to “suppress” Person 4’s ability to disclose war crimes.

It tells me, in no uncertain terms, that they’ve been directed not to tell tales out of school.

“Any junior … reading that, I believe, would be concerned about speaking to anybody about this, including the AFP [or] the OSI, anybody,” he told SBS News.

“The obligation is for commanders at all levels to submit these sorts of matters to the competent authorities, which includes the AFP, the OSI [or] anybody tasked with investigating [them].”

A Defence spokesperson told SBS News: “Defence supports the criminal investigations currently underway by the OSI and is supportive of individuals speaking with the OSI. Criminal investigations and any potential prosecutions as a result of those investigations are being conducted independently of Defence.

“As criminal investigations are still ongoing, it is inappropriate to comment further.”

In June, Kolomeitz joined independent senator Jacqui Lambie in demanding the ICC investigate senior ADF figures, arguing Australia had been “inactive in investigating the higher command”.

Who is Person 4?

A former SAS soldier, Person 4 was subpoenaed to testify and was a key witness during the defamation trial initiated by Roberts-Smith.

He testified that during a mission to Darwan in 2012:

  • Roberts-Smith kicked a handcuffed Ali Jan down an escarpment or cliff
  • Roberts-Smith followed Ali Jan down the cliff with another soldier, dubbed Person 11
  • Roberts-Smith ordered Person 4 and Person 11 to drag Ali Jan, injured but still alive, under a tree
  • Roberts-Smith and Person 11 held a discussion
  • Person 4 heard gunshots and saw Person 11 standing over Ali Jan’s body, with Roberts-Smith still nearby
  • Roberts-Smith later told fellow soldiers who were present to lie about the shooting

The judge ruled Person 4 was an “honest witness” and was not motivated by “ill-will or professional jealousy” towards Roberts-Smith.

Besanko found Person 4’s testimony also corroborated evidence given by Afghans who were detained at the same time as Ali Jan, and who also witnessed the kick.

Roberts-Smith categorically denies the allegations made by Person 4, and has lodged an appeal against the verdict.

But Besanko also found Person 4 executed a prisoner on Roberts-Smith’s orders during a separate mission in 2009. One SAS soldier described Person 4 as apparently “in a bit of a shock” immediately after the killing.

The judge found Roberts-Smith had murdered a second prisoner himself during that mission.

Person 4 was not required to testify about that mission – at a compound dubbed Whisky 108 – over concerns of self-incrimination.

Besanko accepted Person 4 had been suffering multiple mental health issues in the years after his deployment to Afghanistan.

Person 4 testified that media reporting on alleged war crimes in Afghanistan, particularly the death of Ali Jan, had triggered anxiety attacks and night terrors.

In the ruling, the judge noted that Roberts-Smith’s lawyers argued that Person 4’s mental health struggles made him an “unreliable witness”.

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