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The Afghan family who say they witnessed the murders of their father and son by war veteran Ben Roberts-Smith are still waiting for the Australian government to contact them. By Michelle Jasmin Dimasi.
Murdered Afghans’ families await justice from Australia
In his courtyard where the dairy cows are tied, Esmatullah is reliving his father’s final moments. He squats on the ground, recalling that Mohammed Essa “was begging and crying, ‘Don’t kill me.’ ”
“They all stood here … and kicked him on his head. They took us out of the yard, and then killed him here, and people [later] found him under the soil.”
Esmatullah then guides me outside the mudbrick compound, close to the almond orchard. “They also took my brother to another yard from that gate … There was a wall, the front gate was here ... My brother was martyred here, and they [later] drank from his prosthetic leg. They destroyed the houses and flattened all this area,” he says.
Last month, the full bench of the Federal Court of Australia upheld a civil finding that Australian war veteran Ben Roberts-Smith was responsible for the murders of the two men in April 2009. The killings occurred at their family home in the village of Deh Jauz, Uruzgan Province – codenamed “Whiskey 108” by Australian forces – during operations against Taliban insurgents in southern Afghanistan.
Esmatullah, who was a child at the time, says he was briefly detained alongside Mohammed Essa and Ahmadullah. His mother, Bibi Rabia, fought desperately with the Australian soldiers, while his father pleaded with them “in the name of Allah” to release him. Shortly afterwards, Esmatullah and other family members were separated from Mohammed Essa and Ahmadullah. It was the last time the boy saw them alive.
The killings of the elderly Afghan farmer and his son became central to one of Australia’s most notorious defamation trials, between Roberts-Smith and Nine Entertainment, which played out in 2021. In 2023, Justice Anthony Besanko ruled, on the balance of probabilities, that Roberts-Smith murdered the men referred to in court as Afghan Male 1 and Afghan Male 2.
Despite subsequent efforts by Roberts-Smith’s lawyers to “construct uncertainty” over Justice Besanko’s approach, Justices Nye Perram, Anna Katzmann and Geoffrey Kennett dismissed the appeal as “unpersuasive”.
The appeal court affirmed that Roberts-Smith’s conduct was part of a larger disturbing culture within the Special Air Service Regiment (SASR), in which junior soldiers were ordered to kill prisoners as part of a “blooding” initiation. On the murder of Ahmadullah, which one soldier described as an “exhibition execution” during the 2021 trial, the appeal court noted that Roberts-Smith’s conduct showed “a certain recklessness or perhaps even brazenness”. As they observed: “The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder.”
Cross-examination of anonymised witnesses at the defamation trial corroborate Esmatullah’s account of Ahmadullah being taken outside the family compound before being executed. Person 41, a key witness, testified that a younger man with a prosthetic leg was frogmarched out of the compound. In the appeal judgement, the justices concluded that Person 24 saw Roberts-Smith “walk out of the compound holding a man … before he dropped the man and immediately began to fire a machine gun burst into his back”.
Person 41 also testified that he saw Roberts-Smith throw an Afghan male to the ground, flip him onto his stomach and fire three to five rounds into his back. He said Roberts-Smith then saw him standing there and said, “Are we all cool? Are we good?”
Roberts-Smith was ordered to pay legal costs exceeding $25 million. The war veteran stated he would challenge the dismissal in the High Court, but lawyers familiar with the case are sceptical that the High Court will be interested in hearing further submissions.
Many years have passed since the executions, and Esmatullah’s family remains at a loss, haunted by their recollections. Those who say they were present claim that Australian forces moved them from the courtyard to another house, barefoot in the pouring rain. They included Malika, Ahmadullah’s wife, and her two young sons, Samiullah and Nabiullah. Malika was four months pregnant with their third child, Shamsullah.
Malika said they spent the night at a nearby house. In the morning, they went to a relative’s home, afraid that their own house would be bombed again. She recounts: “When we came back to our home, everything was destroyed and flattened. The cows and sheep were killed. We didn’t even think that there was a house here.”
According to Esmatullah, about 10am the following day, villagers gathered around the rubble, searching for Ahmadullah and Mohammed Essa’s bodies. The family buried them nearby in Kakarak cemetery. Malika said Mohammed had been shot in the head, while Ahmadullah had been shot in the chest and his prosthetic leg removed.
The Federal Court found that Australian soldiers removed the murdered civilian’s prosthetic leg and took it back to their base at Tarin Kowt, where it was used as a novelty drinking vessel. The leg was later flown to Campbell Barracks in Perth, where it was mounted on a wall. Glass replicas were distributed to soldiers in the squadron responsible.
During the defamation trial, Roberts-Smith swore under oath that he had not drunk from the prosthetic leg. However, last month it was reported that the Office of the Special Investigator (OSI) had been provided video footage allegedly showing Roberts-Smith doing so. The OSI was established in early 2021 to investigate potential Australian war crimes in Afghanistan, in line with Australia’s responsibilities under international humanitarian law.
Esmatullah and his family members say they know that Australian soldiers drank alcohol from Ahmadullah’s prosthetic leg. Malika says it gives her “heart-pain”, and for Esmatullah, “it was heartbreaking … I was very young, a child when this happened.” Ahmadullah had lost his leg in a vehicle accident.
The OSI has so far made no referrals to the Commonwealth director of public prosecutions. According to the Australian government, “The fall of Kabul to the Taliban in August 2021 has created practical difficulties for the collection of evidence in Afghanistan.” Zabihullah Mujahid, the Taliban’s spokesperson, told The Saturday Paper that Australian war crimes investigators are welcome in the country. The Taliban also stated that victims’ family members are allowed to travel to a third country to provide evidence.
“By limiting engagement with the Afghan side, the OSI is missing numerous opportunities to collect crucial evidence,” says Dr Christopher Elliott, a war crimes researcher at the British Columbia Institute of Technology and a former Australian soldier. “For example, in special circumstances, it is permissible to exhume a corpse under Islamic law. In this case, forensically establishing whether Mohammed Essa was shot in the back of the head could prove decisive in a criminal trial. It is difficult to understand why no attempt has been made to visit these crime scenes.”
The OSI’s investigation involves several cases relating to alleged murders by Roberts-Smith, including the Whiskey 108 incident. Last month, the OSI conducted raids in Perth for the first time since the agency began its investigations, but it is unclear if the raids were in connection to Roberts-Smith.
On July 18, 2024, the Australian government enacted the Defence (Afghanistan Inquiry Compensation Scheme) Regulations 2024, establishing a formal process for the Australian Defence Force to assess compensation claims by Afghans affected by alleged war crimes – including unlawful killings and property destruction.
Almost a year has passed since the scheme was introduced. Despite court findings that the two Afghan men were murdered, Esmatullah says no one from the Australian government has contacted him or his family to provide information about the scheme.
The Australian Defence Force did not respond to requests for comment from The Saturday Paper.
This article was first published in the print edition of The Saturday Paper on June 28, 2025 as "Silent witness".
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