Of the four murders found proven by Besanko,one involved an allegation the former Special Air Service corporal kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11,2012,before procuring a soldier under his command to shoot him.
Under the rules of engagement that bound the SAS,killing unarmed prisoners is a war crime.
Roberts-Smith’s barrister,Bret Walker,SC,told the Full Court of the Federal Court on Tuesday that there was insufficiently cogent evidence available to Besanko to make such a grave finding.
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Roberts-Smith told the Federal Court during the defamation trial that there was “no cliff” and “no kick”. The man in question was not a farmer but a suspected Taliban “spotter” reporting on the movement of coalition forces,he said,and both he and a soldier dubbed Person 11 lawfully fired shots at the man in a cornfield. Person 11,a friend of Roberts-Smith,supported this account.
Two other soldiers,along with three Afghan villagers who gave evidence via an audiovisual link from Kabul,gave a different account in evidence called by the newspapers.
The newspapers alleged that either Roberts-Smith or Person 11 planted a Taliban-issued radio known as an ICOM on Ali Jan’s body after the killing,in an action known as a throwdown,to make the killing appear legitimate.