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IBAHRI applauds victory for media freedom in landmark war crimes defamation trial

International Bar Association’s Human Rights Institute Media Release

The International Bar Association’s Human Rights Institute (IBAHRI) commends the Federal Court of Australia’s recent ruling in the case of Roberts-Smith v Fairfax Media as affirmation of international human rights standards upholding media freedom and freedom of expression. The ruling comes at a time when, globally, respect for the right to freedom of expression and media freedom are in a state of dangerous decline, as warned in a 2022 report to the United Nations Human Rights Council by Irene Khan, the UN-appointed Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

Ben Roberts-Smith, a former member of Australia’s Special Air Service Regiment (SASR), sued three newspapers – The Sydney Morning Herald, The Age and The Canberra Times – for defamation after 2018 reports alleged that he was involved in the murders of unarmed civilian Afghans during his time in Afghanistan between 2006 and 2012. Mr Roberts-Smith denied the allegations and brought a multi-million-dollar defamation case against the media outlets.

After two years of proceedings, Federal Court Judge Anthony Besanko ruled that the media outlets had proven the bulk of their allegations to be ‘substantially true’ – evidentiary burden required by Australian civil law procedure – and dismissed the case against them. In his full judgement, released on Monday 5 June, Judge Besanko found Roberts-Smith to be ‘complicit in and responsible for the murder’ of three Afghan men on deployment. IBAHRI acknowledges this is not a finding of criminal guilt against Mr Roberts-Smith and that no criminal charges have been filed.

IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc commented:

‘The IBAHRI commends the recent victory for media freedom in the Australian Federal Court. It is imperative that journalists be allowed to serve their legitimate function as truth-tellers and shine a light on the activities of their governments and armed forces. Media freedom is in retreat around the world, and now, more than ever, we stand with all journalists who dare to seek and report the truth in an increasingly hostile and dangerous environment. We call on all governments to repeal criminal defamation and ensure that civil defamation laws are fit for purpose and are not weaponised against journalists in vexatious lawsuits, including SLAPP (strategic lawsuit against public participation) actions. Our legal systems must be able to protect the truth, and the truth tellers.’

Journalists continue to face unacceptable criminal penalties and intimidation, such as sanctions, imprisonment, and litigation, for reporting on war crimes allegedly committed during the wars including in Afghanistan, Iraq and Ukraine. So, Judge Besanko’s judgement is important for Australia, and beyond, because it demonstrates that the work of journalists investigating and reporting on war crimes is of legitimate public interest and must be protected under domestic and international law.

IBAHRI Co-Chair Mark Stephens CBE stated:

‘The IBAHRI congratulates the journalists named as defendants in the recent defamation proceedings of Roberts-Smith v Fairfax Media. It is partly due to the fearless reporting of journalists like these, and others around the world, that our democratic principles and the rule of law can be maintained. I also congratulate dear friend and past IBA Chair of the Legal Practice Division Peter Bartlett, Partner, MinterEllison, the head lawyer acting for the media in this case, for his extraordinary effort in defence of his clients. The IBAHRI hopes that this judgement goes towards urging other jurisdictions to protect freedom of expression from spurious defamation claims, aimed at silencing the truth. The IBAHRI echoes the sentiments of the Special Rapporteur Irene Khan in calling for greater protections for whistle-blowers and journalists at state-level, to match the strong protections guaranteed by international law. We urge governments everywhere to provide the necessary protections to allow journalists to perform their legitimate function without hindrance, intimidation, or sanction.’

In its General Comment No 34, the UN Human Rights Committee (UNHRC) stressed that the press must be ‘free, uncensored and unhindered’ in democratic societies to ensure that all citizens may enjoy the rights contained within the International Covenant on Civil and Political Rights (ICCPR), as ratified by Australia. Specifically, Article 19 of the ICCPR guarantees freedom of expression and the existence of a free media.

Ms Ramberg Dr Jur hc concluded:

‘Journalists and the independent media, by virtue of their vital function in democratic society to serve as independent watchdogs and provide trusted and fact-based information in the public interest, must be protected by special laws from arbitrary restraints on their reporting. To the extent that non-criminal defamation laws are permitted by international law as a legitimate limitation on speech, they must conform to the narrow circumstances set out in Article 19(3) of the ICCPR. The UNHRC has been emphatic that defamation laws must be ‘crafted with care’ so as not to pose an unacceptable encumbrance on freedom of expression. Particular care should be exercised where the impugned speech involves matters of legitimate public interest. Allegations of war crimes committed by coalition troops during the war in Afghanistan certainly fall within such concern.’


The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, with the aim of protecting and promoting the rule of law globally, the IBA was born out of the conviction that an organisation made up of the world’s bar associations could contribute to global stability and peace through the administration of justice. The IBA acts as a connector, enabler, and influencer, for the administration of justice, fair practice, and accountability worldwide. The IBA has collaborated on a broad range of ground-breaking, international projects with the United Nations, the European Parliament, the Council of Europe, The Commonwealth, the Organisation for Economic Co-operation and Development (OECD), the World Trade Organization, the International Monetary Fund and the World Bank, among others.

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  1. New England Cocky

    Now follow the Jacquie Lambie lead and court marshall the senior officers who had knowledge of, or covered up, or failed to expose, these illegal actions and strip them of any medals.

  2. Canguro

    And to misappropriate a quote from the erstwhile prime minister and minister for everything, when he said the following in relation to women protesting against sexism and assaults and their March 4 Justice;

    “Not far from here, such marches, even now are being met with bullets, but not here in this country,” Mr Morrison told Parliament. “This is a triumph of democracy when we see these things take place.”, one might equally observe something similar in regard to the fate of the hapless psychopathic thug & murderer Ben Roberts-Smith, that how fortunate he is to be in Australia and not a citizen of many other countries where his public excoriation and exposure of criminality may indeed have led to his meeting with a bullet or two, surely justice served in the context of the behaviour he meted on innocents with his judge, jury & executioner mentality.

  3. Barry

    I suspect the IBAHRI commendation of the Federal Court and Fairfax is more to do with maintaining the status quo as it relates to delivery of ‘truth’ by trusted MSM messengers and the decision-making capacity of the Court to get it right. It’s probably also a shot across the bow of the ADF to get their house in order. While there’s merit in this case, as NEC points out, what about other matters that deserve a balanced inquiry?
    Where has MSM and our BAR been hiding in relation to Julian Assange, still languishing in custody for exposing corruption?
    More recently, the government response to the covid debacle was the use coercion tactics, denial of services, QR entry restrictions to shops, voiding of informed consent for medical protocols, restrictions on movement including unlawful border closure, etc.
    The illusion being dumped on the public by this article released by the IBAHRI is that the Courts and mainstream media are your savior, trust the system. It’s a pretty selective interpretation of honest journalism if you ask me.
    Of concern in terms of the future of freedoms is a ‘Combatting Misinformation and Disinformation Bill 2023’. At the end of the day a bunch of bureaucrats will be deciding what opinion the public is allowed to voice or hear and what is not. The criteria from what I can make out is that if your thoughts disagree with the government of the day, you are a dis-info or mis-info person of interest, possibly a criminal.
    Freedom of speech is a fundamental right.
    If that is lost forget all other freedoms. What are members of the BAR in Oz saying about the above mentioned Bill? 0?

  4. Clakka

    Oh yes, all well and good. But where is IBAHRI’s flag waving regarding Julian Assange – it’d be interesting to know what they are actually doing in that regard. And ….

    What have IBAHRI been doing? What representations have they made? And where is their flag waving? Regarding the ‘worst in the world’ hundreds of Oz internecine, scattergun, uncoordinated, ill-defined, loosely drafted, oppressive, draconian and seriously prone to corruption, largely hidden laws pertaining to state secrets, terrorism and whistle-blowing? Laws that ignore and breach international laws and covenants, facilitate the obtaining of warrants from almost anyone without demonstrating reasonable cause, mandate trials in secrecy, usurp other laws, facilitate arbitrary police actions, deny defendant’s access to evidence and even the nature of allegations, enable arbitrary incarceration, and permit all those actions against anyone else including media that may have knowledge of the matter, discuss it or report on it.

    Laws that callously redefine ‘Kangaroo Court’ as long as it is on behalf of the state. Laws worse than those in play in the UK and USA. A despicable irony in the face of Oz jurists and MPs whining that in the Assange matter, “enough is enough, it has gone on for too long.”

    Perhaps IBAHRI in their awareness of ‘parliamentary supremacy’ are awaiting commentary from the UK and US governments and wig-wearing jurists, the ICC and the East Timorese government ….. I don’t think.

    Looking forward to their update on their bravery regarding the above matters, and the plethora of others.

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