Andrew L. Urban
“There is no dispute Roberts-Smith committed killings in Afghanistan. Indeed, it is for killing that he earned his Victoria Cross. But killing in wartime service is lawful and is not murder,” writes Noel Pearson.
Pearson writes: “The respondent media claimed Roberts-Smith committed killings in Afghanistan amounting to war crimes. They have presented witnesses, including former special forces soldiers who served with Roberts-Smith, who support the allegations against him. But this testimony only confirms the truth of killing. It does not and cannot confirm the truth of murder.”
Writing in The Australian today (April 11, 2026), Pearson has injected an argument that is destined to be part of Roberts-Smith’s defence, opening with an expression no doubt shared by many: “Poor bugger, Ben Roberts-Smith.”
“He is, in the court of public presumption, already guilty. He stands no chance of being afforded what our system of law once called its golden thread: innocence before proof of guilt. Roberts-Smith will be denied the presumption of innocence. There is no way he will receive a fair trial. It simply is not possible now.” Hard to argue with that…
“In 2022, in an opinion piece in this paper (“War crime allegations must be tested in the right forum”), I made the argument that the problem with proceedings before Justice Anthony Besanko in the Federal Court at the time was that, in the words of Melbourne barrister Matt Collins, it was “a war crimes trial masquerading as defamation proceedings”.
But Pearson falls into a political black hole when he says : “My motivations are different from Gina Rinehart, Kerry Stokes and other right-wingers defending Roberts-Smith who are animated by culture war instincts and agendas. My concern is injustice. I should be ashamed to fall silent when injustice is afoot. I know better than most people that these right-wing culture warriors don’t care about injustice.” Culture wars??? That is self-aggrandising, holier-than-thou political/personal smear without merit and unsupported by evidence.
Noel Pearson is a director of Cape York Partnership, Good to Great Schools Australia and Fortescue.
The Pearson Intervention: Legal Clarity or Political Distraction?
The Roberts-Smith saga has long been a lightning rod for Australian tribalism, but Noel Pearson’s recent entry into the fray shifts the battleground. Writing in The Australian, Pearson has bypassed the emotive “hero vs. villain” narrative to strike at the heart of military jurisprudence. However, as Pearson attempts to rescue the “golden thread” of the presumption of innocence, we must ask: is his involvement a masterstroke of legal advocacy or a bridge too far into the culture wars he claims to despise?
The “Killing vs. Murder” Distinction
Pearson’s most potent contribution is his insistence on the distinction between wartime killing and criminal murder. From a military law perspective, this is a vital, if uncomfortable, truth. In the theater of war, the state licenses the use of lethal force. Pearson argues that the testimony provided by special forces soldiers confirms the act of killing, which is inherent to the Victoria Cross recipient’s role; but fails to bridge the evidentiary gap to murder.
By framing the issue this way, Pearson provides a sophisticated defense that transcends partisan cheering. He isn’t just defending a man; he is defending the unique legal status of the combatant.
The Fair Trial Paradox
Pearson’s alarm over the “court of public presumption” is where his “fit” for the defense becomes most apparent. He argues that the “war crimes trial masquerading as defamation proceedings” has poisoned the well, making a fair criminal trial impossible.
For a figure like Pearson—who has built a career on highlighting systemic injustice—this argument carries significant weight. He serves as a moral shield, suggesting that if we abandon the presumption of innocence for a war hero, we abandon it for everyone.
The Friction of Personal Branding
However, Pearson’s “fit” is complicated by his own rhetoric. In the same breath used to defend Roberts-Smith, Pearson launched a scathing attack on fellow supporters, labeling them “right-wing culture warriors” who “don’t care about injustice.”
This is where the defense strategy may falter. For an opinion piece to serve a legal cause, it usually requires a unified front. By alienating the “right-wing” base that forms the bulk of Roberts-Smith’s support, Pearson risks turning a legal defense into a personal manifesto. His “holier-than-thou” framing and positioning himself as the only advocate motivated by pure justice introduces a secondary conflict that distracts from the primary legal hurdles Roberts-Smith faces.
Pearson brings an intellectual gravitas that most commentators lack. He forces the public to confront the brutal legal realities of International Humanitarian Law. But he is a volatile ally. His insistence on distancing himself from other supporters creates a “house divided” dynamic.
Pearson has successfully elevated the conversation to one of high principle, but in doing so, he has ensured that the debate remains as much about his own political standing as it is about the man in the dock. In the high-stakes world of war crimes litigation, such a “loose cannon” ally is a luxury the defense must manage with extreme caution.