Roberts-Smith and Australians Serving in the IDF in Gaza

I. A PRECEDENT AND ITS IMPLICATIONS

The arrest of Ben Roberts-Smith on 7 April 2026 marks more than the fall of one of Australia’s most decorated soldiers. Charged with five counts of the war crime of murder, the former SAS corporal now faces the prospect of life imprisonment following a decade-long process that began with investigative journalism, culminated in a landmark defamation trial, and was crystallised by the Brereton Report’s findings of credible evidence of 39 unlawful killings by Australian special forces personnel in Afghanistan. The prosecution does not exist in a vacuum.

Its significance as a statement about the reach of the rule of law is only as durable as the consistency with which that rule is applied. And in this respect, a parallel question – one that Australian public discourse has been reluctant to examine with equivalent rigour – now presses with increasing legal urgency: what are the obligations of the Roberts-Smith precedent for Australian citizens who have served with the Israel Defence Forces in Gaza?

This is not a hypothetical inquiry. Following the Hamas attacks of 7 October 2023, which killed approximately 1,200 Israelis and foreign nationals and saw over 250 taken hostage, substantial numbers of Australian citizens – many of them dual Australian-Israeli nationals – returned to Israel to serve as IDF reservists. Estimates vary: the Australian Centre for International Justice has suggested up to 1,000 Australians may have been involved, while figures obtained by Declassified UK indicate over 600 have served or are serving. The Australian Border Force has confirmed questioning a small number of individuals suspected of attempting to join the IDF, yet no systematic public investigation has materialised.

II. THE LEGAL ARCHITECTURE

The legal framework that could govern the conduct of returning reservists is identical to that applied to Roberts-Smith. In 2002, the Howard government enacted the International Criminal Court Act and inserted Division 268 into the Criminal Code Act 1995 (Cth). This comprehensive suite of provisions criminalises genocide, crimes against humanity, and war crimes, with universal jurisdiction extending to conduct wherever it occurs, by whomever, against whomever. Then-Attorney-General Daryl Williams stated explicitly that the legislation ensured Australia would never become a safe haven for the perpetrators of the most serious international crimes.

Division 268’s extraterritorial reach was deliberate: to domesticate the Rome Statute’s obligations and affirm Australia’s commitment to complementarity – the principle that states investigate and prosecute domestically so the International Criminal Court need not intervene. Dual citizenship offers no shield; Australian law treats its nationals as subject to its criminal jurisdiction irrespective of where they serve or under whose flag.

Under the doctrine of command responsibility – codified in Division 268 – soldiers and officers can be liable not only for acts they personally commit but for those they order, facilitate, or fail to prevent when in a position to do so. Superior responsibility attaches where a commander knew or had reason to know of crimes and failed to take reasonable measures to repress or report them. This principle was central to the Brereton framework and applies with equal force to foreign nationals serving in the IDF.

III. THE INTERNATIONAL CONTEXT

International proceedings concerning Gaza have escalated in gravity since October 2023. On 21 November 2024, the ICC Pre-Trial Chamber issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant for war crimes and crimes against humanity committed from at least 8 October 2023 to 20 May 2024, including starvation as a method of warfare, murder, and persecution. The ICC’s investigation into the Situation in Palestine, opened in 2021, remains active and broadening.

In September 2025, the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory concluded on reasonable grounds that Israeli forces had committed acts amounting to genocide against Palestinians in Gaza, citing mass killing, serious bodily and mental harm, the deliberate infliction of conditions calculated to bring about physical destruction, and measures intended to prevent births. These findings carry significant political and moral weight, though they are not binding judicial determinations. The International Court of Justice has issued provisional measures in South Africa’s case against Israel, ordering prevention of genocidal acts and ensuring humanitarian access.

These developments do not equate to a final verdict on the conflict as a whole. Israel vigorously contests the ICC’s jurisdiction, denies systemic violations, and maintains that its operations comply with international humanitarian law in the face of Hamas’s deliberate use of civilian infrastructure, tunnels, and urban embedding of military assets. The evidentiary threshold for genocide under the Rome Statute – requiring specific intent to destroy a group in whole or in part – is exceptionally high, and the ICC Prosecutor has not charged it at the leadership level. The Hamas attacks of 7 October, involving indiscriminate killings, sexual violence, and mass hostage-taking, constitute clear war crimes and crimes against humanity that must be acknowledged in any balanced assessment.

The legal question for Australia, however, is not whether the conflict as a whole meets every threshold of international law, but whether individual Australians’ conduct, or their command-level failures, may have crossed into criminality under Division 268.

IV. THE DOUBLE STANDARD

The double standard in Australia’s institutional response is difficult to ignore. Australians who travelled to fight for ISIS faced swift prosecution under foreign fighter laws, public vilification, asset freezes, and the intensive monitoring of their families. By contrast, service with the IDF – despite the identical legal framework engaging Division 268 rather than Division 119’s foreign fighter provisions – has attracted minimal scrutiny upon return.

This asymmetry is not merely political inconvenience; it challenges the coherence of Australia’s commitment to the universal application of the laws of armed conflict. The Australian Centre for International Justice has been compiling a legal dossier on Australians potentially implicated in international crimes for transmission to the Australian Federal Police. Attorney-General Michelle Rowland has stated that all parties to the conflict must comply with international and relevant domestic legal obligations and cautioned citizens to carefully consider their legal obligations. The AFP has confirmed that any Australian suspected of committing a criminal offence while in a conflict zone may be investigated. Yet these statements have been criticised as manifestly insufficient given the scale of allegations and Australia’s complementarity obligations.

Comparisons to other cases deepen the concern. Post-Bosnia and post-Rwanda, Australia prosecuted no nationals for atrocities despite the universal jurisdiction available to it. ISIS cases succeeded partly due to the clear terrorist designation and the domestic security imperatives it generated. Gaza’s geopolitical sensitivities – Australia’s historically strong ties with Israel, Jewish community concerns, and strategic interests in the Middle East – likely temper institutional enthusiasm. But rule-of-law credibility cannot rationally hinge on alliance management.

V. THE COUNTERARGUMENTS CONSIDERED

Critics of this analysis argue that the conflicts are not analogous, and their objections carry genuine weight. Afghanistan involved coalition operations against insurgents with clear command structures, rules of engagement subject to Australian oversight, and a dedicated accountability body – the Brereton Inquiry – equipped with years and substantial resources. Gaza is a dense urban conflict against a non-state actor designated as terrorist by Australia, involving what Israel characterises as existential threats, and allegations of systematic IHL violations on both sides. Israel conducts internal military justice reviews and possesses a sophisticated legal apparatus.

Moreover, many Australians in the IDF are reservists fulfilling civic obligations in their other nationality, not mercenaries. The presumption of innocence must apply equally to them.

There are also practical obstacles. Resource constraints, the difficulty of gathering evidence in a foreign active conflict zone without helmet-cam footage or equivalent documentation, the risk of vexatious complaints overwhelming limited investigative capacity, Israel’s status as a non-party to the Rome Statute, and the potential for overreach to chill legitimate dual-national service or strain community relations – all are legitimate considerations that any fair-minded analysis must acknowledge.

Furthermore, operational context matters in IHL. The distinction, proportionality, and precaution principles require granular evidence of specific decisions and their foreseeable consequences. Proving individual culpability in chaotic urban warfare demands unit records, eyewitness accounts, digital footprints, and contextual military expertise – not guilt by association with a conflict that has attracted adverse findings at the command level.

VI. CONSISTENCY AS THE TEST

These counterarguments do not, however, dissolve the core issue. The Roberts-Smith prosecution was not predicated on blanket condemnation of the Afghanistan campaign or collective guilt for everyone who served there. It arose from specific, evidence-based findings of unlawful killings of detainees and civilians – a process of painstaking granular inquiry. The call here is not for presumptive guilt of every returning IDF reservist, but for the same institutional seriousness: intelligence-led, evidence-based inquiries where credible information suggests involvement in proscribed acts, whether targeting civilians, disproportionate attacks, or failure to prevent subordinates’ crimes.

The Brereton Inquiry, commissioned in 2016 and reporting publicly in 2020, examined 55 incidents and found credible evidence for 39 unlawful killings, recommending AFP referrals. The Office of the Special Investigator, established in 2021, has pursued prosecutions amid significant challenges of classified evidence, jury impartiality risks, and national security sensitivities.

Roberts-Smith’s defamation loss in 2023 – upheld on appeal – established on the civil standard that he was involved in multiple murders; criminal charges followed with the higher beyond-reasonable-doubt threshold. This progression demonstrates what proponents of Gaza accountability argue must now be mirrored: a multi-year, resource-intensive, evidence-driven process.

Selective enforcement erodes legitimacy in ways that compound over time. If Australia prosecutes ISIS fighters vigorously while ignoring potentially analogous conduct in another theatre, it invites accusations of geopolitical hypocrisy that undermine its moral authority on international justice precisely when that authority is most needed. The rule of law is not a selective instrument of convenience; it demands impartial application even when politically uncomfortable, whether the uniform is Australian, Israeli, or any other.

VII. COMPLEMENTARITY AND AUSTRALIA’S OBLIGATIONS

Australia’s obligations under the Rome Statute’s complementarity principle reinforce the case for action. The ICC defers to genuine national proceedings; by enacting Division 268, Australia claimed the primary role in holding its nationals accountable. Failure to exercise that role credibly risks ICC scrutiny or third-state prosecutions under universal jurisdiction – an outcome that would expose Australia’s inaction to far more damaging international scrutiny than a domestic inquiry would.

The government’s cautionary statements are a start, but an insufficient discharge of duty. Systematic monitoring of returnees, review of open-source evidence including footage, unit affiliations, and social media records, active cooperation with the ACIJ dossier, and engagement with allies who may hold relevant intelligence are the minimum requirements for demonstrating that Australia is genuinely willing and able to investigate. Anything less falls short of the complementarity standard Australia accepted when it passed the 2002 legislation.

Home Affairs and Australian Border Force data reveal awareness of only four suspected cases post-October 2023, with interventions in three – figures critics argue are significant undercounts given the scale of open IDF reservist recruitment and call-ups. The AFP’s acknowledgement of the war crimes framework, while formally correct, is not the same as actively exercising it.

VIII. THE MIRROR THE PRECEDENT HOLDS

The Roberts-Smith prosecution, born of painful democratic self-examination after Afghanistan, offers Australia a mirror. Will it reflect consistency – or expose selective blindness? The legal tools exist. Division 268’s universal jurisdiction was constructed precisely for scenarios where Australian nationals may have participated in internationally proscribed conduct abroad. The precedent is now set in the most public and unambiguous terms possible: Australia will prosecute its own citizens for war crimes.

The philosophical stakes extend beyond any single case. A commitment to the rule of law that withstands pressure only when the defendant is convenient is no commitment at all. Public discourse has rightly celebrated the Roberts-Smith process as evidence of democratic accountability in the finest tradition. That celebration is justified – but consistency tests the claim. If the legal architecture is identical, the moral imperative the same, and the only variable political will, then Australia faces a choice: affirm universal principles or risk the precedent becoming a hollow symbol.

The presumption of innocence protects every individual until proven otherwise through fair process. That principle is not in tension with systematic institutional inquiry; it is its precondition. Evidence-driven investigation does not presume guilt. It discharges the obligation to determine whether guilt exists. The Brereton process, at its best, demonstrated that Australian institutions can hold that distinction with rigour and integrity.

Ultimately, the durability of the rule of law rests on equal application. If the Roberts-Smith arrest is to mean what its proponents claim – that no Australian citizen is above the law, and no conflict exempts them from it – then that principle must extend to Gaza as it extended to Afghanistan. Political will, tempered by evidence and fairness, must now bridge the gap. Only then can Australia credibly claim leadership in international justice, honouring both its commitment to its soldiers’ accountability and the universal principles it professes to uphold.