International Law as Process: Reflections on the Roberts-Smith Arrest

At a moment when international law feels increasingly under existential pressure –  when states use force without attempting legal justification, when international institutions are openly delegitimised, and when the architects of the post-war legal order signal their indifference to it – last Tuesday morning at Sydney Airport offered a different kind of story.

On 7 April 2026, Ben Roberts-Smith, Australia’s most decorated living soldier and recipient of the Victoria Cross, was arrested by the Australian Federal Police (AFP) and subsequently charged with five counts of war crime – murder under the Criminal Code Act 1995 (Cth). The charges relate to the deaths of Afghan nationals between 2009 and 2012, with allegations that the victims were unarmed and under ADF control at the time of their deaths. Roberts-Smith has consistently denied allegations of wrongdoing and is entitled to the presumption of innocence. This piece does not engage with the facts of the case or its likely trajectory. It reflects instead on what the arrest demonstrates about how international law continues to have effect.

The Brereton Process

The arrest is the product of a series of institutional decisions, each one giving effect to the normative framework of international humanitarian law (IHL). In 2016, the Chief of the Australian Army requested the Inspector-General of the Australian Defence Force (IGADF) to inquire into allegations of war crimes by the Special Operations Task Group in Afghanistan. The IGADF, in turn, appointed then NSW Supreme Court Justice Paul Brereton as an Assistant IGADF to lead the inquiry. The resulting Brereton Report, released in November 2020, found credible information of 23 incidents in which 39 individuals were killed unlawfully, and recommended referral of 36 matters for criminal investigation. The Office of the Special Investigator (OSI) was established to act on those referrals. Joint AFP/OSI investigations followed. Roberts-Smith is the second person to be charged pursuant to these processes, following criminal proceedings against Oliver Schulz, which began in 2023.

Much of the work leading to the arrest – investigative and institutional work – was invisible to the public. On Tuesday morning, it suddenly became visible. To some, this news was unwelcome. However, for scholars and advocates of international law, and the rule of law more generally, it reflects a modest bright point.

At the Vanishing Point

Hersch Lauterpacht observed in 1952 that ‘if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law’ (p 382), operating as it does in conditions of extreme violence where restraint and enforcement seem most unlikely. The challenges of regulating armed conflict reflect broader, recurrent debates about whether international law is really law, as evident in the US Secretary of State’s recent description of international law as ‘abstractions’.

The Roberts-Smith case speaks directly to this debate and points to the importance of process in giving effect to international law. Rosalyn Higgins’ conception of international law as process conceives of international law as ‘a continuing process of authoritative decisions’; that is, ‘the entire decision-making process, and not just the reference to the trend of past decisions which are termed “rules”’ (p. 2). This perspective offers a useful lens here. International law, on this view, is not a static body of rules mechanically applied, but a continuing series of decisions and processes by states, institutions, and actors operating within a normative framework.

The IHL norms prohibiting the murder of civilians and persons hors de combat – those outside the fighting due to wounds, surrender or capture – are among the most fundamental rules of armed conflict. They are codified in the 1949 Geneva Conventions and their Additional Protocols, to which Australia is a party. They have been incorporated into Australian domestic law through Division 268 of the Criminal Code Act 1995 (Cth).

However, these rules are not self-executing and require implementation through a series of processes and institutions. The arrest and charging of Roberts-Smith represents the execution of international and domestic law through several actors, including the OSI and the AFP. It reveals international law working as a process, invisibly and incrementally, until suddenly it becomes visible.

The Victims/Survivors

It is important not to lose sight of why the legal architecture exists. The IHL prohibition on murdering civilians and persons hors de combat is not an abstraction. It exists to protect persons who find themselves in situations where they are rendered vulnerable – generally unarmed and under the control of an adverse party – and who are entitled by law to humane treatment. The charges indicate the deceased Afghan nationals were entitled to such treatment. While prosecuting those alleged to be responsible for their deaths cannot repair the harm, it is an important measure towards achieving justice and accountability. Providing victims/survivors with reparations for alleged offences under the Defence (Afghanistan Inquiry Compensation Scheme) Regulations 2024 would provide a fuller conception of justice.

The normative effect of enforcement extends beyond the direct victims/survivors. Impunity is not merely a failure of justice for those who have been killed; it is also a danger to those who have not yet been harmed. Every time IHL violations go uncondemned, uninvestigated, and unprosecuted, the message sent to combatants is that the rules do not apply under pressure. But when accountability follows – even slowly and imperfectly – the normative force of the rules is reinforced. The soldier in a future conflict who hesitates before killing a prisoner may not be consciously thinking about the Geneva Conventions. But the culture that shapes their training, their rules of engagement, and their sense of identity is built both formally and informally through such processes.

A Modest Bright Point

Some will find the arrest discouraging or frustrating. Those who see Roberts-Smith primarily as a decorated soldier – a man who was awarded the Victoria Cross for ‘most conspicuous gallantry’ – may experience his arrest as a loss, a disincentive, or an injustice to be rectified. Others will find the process itself inadequate: slow, incomplete, and limited relative to the findings in the Brereton Report.

But if we foreground the normative purpose of IHL, the arrest looks different. While it does not repair the harm done, it is a reminder that process matters. International law does not operate only through the dramatic and the visible. It operates through the accumulation of institutional decisions made by people doing their jobs within a framework of rules, through domestic legislation that gives international norms teeth in national legal systems, and through investigations and prosecutorial decisions made without fanfare. And occasionally, it surfaces – at an airport on a Tuesday morning – in a way that makes the invisible visible.

That the Prime Minister declined to comment on the arrest, citing the importance of keeping political engagement out of legal proceedings, and the Opposition Leader similarly said the matter should take its course, is itself a small illustration of the rule of law in action. This is a pointed contrast with States where heads of government assert the right to direct or override legal processes involving other branches of government or their allies. By upholding the rule of law – not through grand gestures, but through the accumulation of institutional decisions made within a framework of rules – Australia is contributing to reinforcing the international legal order.

At a time when it is easy to despair about the state of international law, that is worth noticing. The wheels of justice continue to turn.