Case Explained: Exclusive: Two more alleged war crime victims identified – Legal Perspective

Gesturing to the side of the head, Jamaluddin Rouhani recalls the death of his son, Mawla Dad. “He was shot by one bullet … near the ear,” Rouhani explains. Mawla Dad was in his early 20s when he was killed alongside another villager, Hayatullah.

On November 5, 2012, the men were shot by Australian forces after the pair were pulled from a Toyota HiLux in Fasil village, Uruzgan province, Afghanistan. Villagers later found their bodies sprawled in the open, bleeding on bags of figs.

Rouhani’s allegations are part of a new body of evidence about war crimes linked to the Special Air Service Regiment (SASR), that were previously examined during Ben Roberts-Smith’s defamation proceedings against Nine newspapers. The media respondents alleged the veteran was involved in the deaths of two Afghan men in Fasil and one in Chinartu in late 2012.

In late 2025, The Saturday Paper interviewed victims’ relatives and other witnesses in Fasil and Charmistan – a village 90 minutes from Chinartu town centre – visiting the sites where the deaths are alleged to have occurred. These sites matched incident locations mentioned in operations summaries (OPSUM) produced by Australia’s Special Operations Task Group.

At trial, there was insufficient evidence to determine whether Roberts-Smith was involved in the deaths of the two men at Fasil. However, Person 16, an SASR medic, told the court he intercepted the HiLux, and handed two men over to Roberts-Smith’s patrol. Roberts-Smith denied taking custody of any prisoners, which the judge did not accept, stating this was false.

No Afghan witnesses from Fasil gave testimony during the defamation trial.

In 2023, Justice Anthony Besanko ruled that, on the balance of probabilities, the veteran was “complicit in and responsible for murder” of an Afghan man in Chinartu on October 12, 2012. The media had alleged that Roberts-Smith instructed an Afghan soldier to execute the man after a weapons cache was discovered in the area. The Saturday Paper identified the victim as Abdul Ahad, a local imam in Charmistan village.

Justice Besanko also ruled that Roberts-Smith was complicit in three other murders: the killing of Ali Jan, a villager in Darwan in 2012, and two men at “Whiskey 108”, a residential compound in 2009. In September 2025, the High Court refused Roberts-Smith’s request for special leave to appeal, ending his bid to overturn the defamation ruling.

The Fasil and Chinartu incidents are believed to be of interest to the Office of the Special Investigator (OSI), the agency responsible for investigating Australian war crimes in Afghanistan.

The work of the OSI, now in its sixth year of operation, has only resulted in one Australian soldier, Oliver Schulz, being charged with war crimes, a first in Australian history. Schulz will face trial in 2027 and has pleaded not guilty. The OSI’s spokesperson says that it continues to investigate 13 matters.

Despite pleas by Afghans, including victims’ relatives, the OSI refuses to take witness statements directly from Afghanistan. When the OSI was asked why, the response was that “it does not comment on operational matters”.

Victims’ family members now have legal representation through Blair Arthur & Associates and Motley Legal Services. These lawyers are assisting Afghans seeking compensation from the Australian government under the Afghanistan Inquiry Compensation Scheme. Legal representation now provides formal structures to facilitate the provision of statements and assist ongoing investigations, should the OSI permit this.

“Objective Sole Inheritance”, undertaken in Fasil, was the last mission conducted during Ben Roberts-Smith’s rotation in Afghanistan. At the defamation trial, the respondents presented evidence that Roberts-Smith allegedly told another patrol member in late October or early November 2012: “Hey fellas, we’re on 18, we need two more to get to 20.” This allegedly implied that two more Afghan deaths needed to be added to a “kill board” kept by Roberts-Smith.

The two men killed at Fasil were passengers in a HiLux, driven by Mosakalim, the owner of the local taxi, which was headed to Tarin Kowt, the provincial capital. To support his impoverished family, Mawla Dad had gone looking for work in Chinar district’s poppy fields. Hayatullah, accompanied by his wife, was taking their sick son, Habib Ulrahman, for medical treatment. Other passengers present were Zia Ulddin and his niece, along with Abdul Hadi, who was in his early 20s, about the same age as Mawla Dad.

Bumping along the gravel road, the HiLux entered Fasil – home to some 145 families. In his rear-view mirror, Mosakalim saw three helicopters approach and land. Several soldiers disembarked, stopped the vehicle, checked the men for weapons and detained them.

Waving down the HiLux with hand signals, Person 16 told the court that he was on one side of the road and Person 34 was on the other. Person 16 recalled that he checked two men for concealed weapons, then placed them in handcuffs. He was unsure what happened to the other two male passengers.

Abdul Hadi recalled the soldiers approaching the HiLux: “They opened the doors; they didn’t let us come out of the car by ourselves. There was an old man with us. They took him out of the car, and they hit him in the face. They grabbed us by the shoulders and threw us down from the car … They immediately blindfolded our eyes.”

Person 16 remembered the patrol coming over and collecting the two men who’d been placed under constraint. He said the two prisoners were walked over to another compound, apparently for tactical questioning.

“First, they took Mawla Dad to a room and fired against him and shot him,” recalled Mosakalim, who says that Mawla Dad, Hayatullah and he were detained separately from the other villagers.

“Then they came and took Hayatullah also to that room and again I heard the sound of gunfire, then I believed that Hayatullah is also no more alive.”

Mosakalim said he was then beaten with a rifle butt until he was unconscious.

Fifteen to 20 minutes after handing the men over, Person 16 claims he heard a soldier telling someone over his radio that there were two “EKIAs”, which stands for enemies killed in action.

The OPSUM produced after the incident claimed two insurgents were “moving rapidly into cover within the compound”, with one “wearing a chest rig” and the other identified as having “an AK-47”. The OPSUM claims an explosive breach to the compound’s outer wall was carried out before the two men were killed.

During the trial, the media contended that a “throwdown” occurred, with an AK-47 placed on the young Afghan male body to make the killing appear consistent with the Geneva Convention’s rules of engagement. This is consistent with the findings of an ADF inquiry that found “throwdowns” were used by Australian special forces in Afghanistan.

The Afghan passengers say neither Mawla Dad nor Hayatullah was armed. “These people were not a part of the Taliban’s community or the party,” said Mohammed Shafiq, the local imam and a witness to the raid. “[Hayatullah] wasn’t a member of the Taliban … They weren’t terrorists … They were just simple people.”

As the helicopters departed Fasil with Mosakalim, Zia Ulddin and Abdul Hadi on board – consistent with the OPSUM’s account of three men being taken to the base – Mohammed Ibrahim, a Fasil resident, found Mawla Dad’s and Hayatullah’s bodies on his property, about 150 metres from where locals say the car was intercepted.

“They bombarded the two other rooms. Everything burned … The only room that was left was the room where the guys were there,” Mohammed Ibrahim tells The Saturday Paper. “The two guys were martyred … They were lying on the figs, and bleeding.”

The OPSUM states that the owner of the compound was paid $600 in damages. Mohammed Ibrahim claimed he never received payment from the Australian forces.

When the raid was over, villagers made plans to return Hayatullah’s and Mawla Dad’s bodies to their families. In Tangai, about 15 minutes from Fasil, a car arrived with Hayatullah’s body.

Esmatullah, Hayatullah’s son, explains: “We asked the people who came with the car who this was – then they told us this is your father. I said, ‘How is it possible? He went toward the bazaar.’ ”

Esmatullah says his family is still traumatised and that they were severely impacted by the loss of their breadwinner.

Jamaluddin Rouhani and his son Mohammed Ibrahim travelled to Fasil to collect Mawla Dad’s body. When they returned to Khalifa Karez, his mother, Naz Bibi, screamed. Her mental health has since deteriorated and she often takes odd household items to his grave. “I can’t forget him even a night or a day; I always miss him,” she tells The Saturday Paper. “Like, how can you forget the shadow of your soul? He was like the shadow of my soul.”

As burial preparations were under way, Rouhani unwrapped the bloodied cloths covering his son. He saw a single gunshot to his son’s head.

After the raid, Person 16 asked Roberts-Smith about the young Afghan man from the HiLux. He said Roberts-Smith responded: “I shot that cunt in the head. [Person 15] told me not to kill anyone on the last job, so pulled out my nine mill, shot the cunt in the side of the head, blew his – blew his brains out, and it was the most beautiful thing I’ve ever seen.”

The OPSUM records that an Afghan adolescent was released during the Fasil raid. However, Justice Besanko said this occurred in “unusual circumstances”, noting the absence of photographs despite standard practice to photograph fighting-age males. The only possible adolescent was Mawla Dad or Abdul Hadi, who was taken to the base. Villagers reported no other young male at the raid.

Person 16 was shown photographs of three prisoners – designated GB-1, GB-3 and GB-4 – but could not confirm they were the men from the HiLux. They are likely to have been Mosakalim, Zia Ulddin and Abdul Hadi, who say they were taken to the base and detained for about a week.

Person 16 was shown seven photographs from the exhibits, including four of a dead Afghan male with an AK-47. He said one of the photographs “looks like the young Afghan male I detained from the Toyota HiLux”, but he could not identify three photographs of an older man.

Esmatullah’s family has kept a photo of Hayatullah in a gold frame. It is wrapped in plastic and “Hayatullah” is written across it.

While these trial exhibits are not available to the public, the photographs of the old man’s corpse could be one avenue for further investigating what happened at Fasil.

“This new Afghan-provided evidence is very important given that the Fasil murder allegation was not previously substantiated during the defamation trial,” says Dr Christopher Elliott, a war crimes researcher and former Australian soldier.

“The precision of the location match and the corroboration that explosives were used during a breach-and-enter are particularly eye-catching. There is a lot for police and prosecutors to work with here if they want to do something about it.”

Several weeks before Mawla Dad and Hayatullah were killed, another man, Abdul Ahad, was allegedly murdered in Charmistan village, near Chinartu. At the end of the defamation proceedings, Justice Besanko ruled Roberts-Smith was responsible for murder during a mission in the Chinartu area. Witnesses and victim family member interviews further substantiate this claim.

At trial, both parties accepted that two Afghans were killed, but the dispute concerned whether an Afghan man was murdered after a weapons cache was discovered. The respondents alleged OPSUM records were falsified as part of a cover-up by Roberts-Smith. Justice Besanko ruled that the OPSUM was “wrong”.

Person 14, who discovered the weapons cache, says Roberts-Smith told Person 13, an interpreter, while pointing at Person 12: “Tell him to shoot him or I will.” Justice Besanko accepted Person 14’s evidence.

It was common practice for the Taliban to hide weapons in or near civilian infrastructure. Mohammed Nasim said: “I think maybe the Taliban put something in the ruins and during the raid maybe the foreigners found it and because of that they killed Mullah Sahib [Abdul Ahad].”

Standing where he found Abdul Ahad, Mohammed Nasim recalled: “[He] was sitting at the end of the room, his eyes were toward the sky, he was just looking at the sky, and he was shot … I saw that four or five bullet cases were stuck in the wall.”

Today, villagers have hung colourful fabric from a fig tree, marking the site where Abdul Ahad was killed.

The imam, his young wife, Muzlifa, and their daughter, Atifa, had only been living in the village for 20 days. Muzlifa remembers foreign and Afghan soldiers entering their house. “They pulled out my husband, and took him out of the home and covered his face and head with a bag or something like clothes,” she tells The Saturday Paper. “I was left alone at home. And they martyred my husband.”

Adam Jan, Abdul Ahad’s brother, who collected the body, said: “He was shot in the head in three or two places. One of his hands was broken. Also, he was shot two or three times in his chest.”

These wounds are consistent with Person 14’s evidence. Justice Besanko noted an Afghan soldier “fired five to eight rounds in the centre mass of the Afghan man and the man dropped to the ground … then fired at least another two rounds into the man up near the head area.”

While families await justice, their lawyers are actively pursuing compensation for them. A Defence spokesperson stated some 100 claims have been submitted. They would not comment on whether anyone had been paid compensation.

About half of these claims have been submitted by Kimberley Motley, an international human rights lawyer, and the first foreign lawyer to litigate in Afghanistan’s courts. She represents victims’ families from the Darwan killings, including Ali Jan’s. She says it is “commendable the taskforce exists but more needs to be done”. Her clients, she says, “have waited nearly 15 years for justice and, sadly, many have lost hope that real accountability will be achieved for their loved ones”.

“All of my clients are the wives and children of noncombatant Afghan men who weren’t members of the Taliban,” she says. “I cannot overstate the generational trauma and damage that these war crimes have caused my clients.”

None of her clients have been paid compensation.

The families of Mawla Dad and the Whiskey 108 victims have legal representation through Natalija Nikolić, a public interest lawyer.

She notes: “The [compensation] scheme shows the Australian government accepts that serious wrongdoing occurred and is taking responsibility for the harm caused by Australian soldiers.

“Compensation is the bare minimum. It cannot undo the violent killing of a son, a brother, or a father. Any real attempt at justice must start with recognising the enormity of that harm. What was taken from these families in a single moment is almost impossible to put into words.”