“If the judge rules in Flt-Lt Kendall-Smith’s favour, the case will have wide implications for all members of British armed forces serving or preparing to serve in Iraq.”
By Robert Verkaik in The Independent
An RAF officer who refused to serve in Iraq because he believed the war was unlawful was told that his concerns were “irrelevant” and that he should now face a court-martial.
Flight-Lieutenant Dr Malcolm Kendall-Smith, a doctor in the RAF, disobeyed an order to return to Iraq even though he had served two tours of duty there. Yesterday, his barrister told a pre-trial hearing in Aldershot that he “honestly” believed the war breached international law and therefore the orders he was asked to obey were unlawful.
Philip Sapsford QC, for the defence, said the officer believed that, because Iraq had not attacked the UK or one of its allies, there was no lawful reason to enter Iraq. Mr Sapsford said he now proposed to call a former SAS soldier to give evidence to support the doctor’s position. Ben Griffin, who left the SAS this year, has said he expected to face a court martial for his refusal to serve in Iraq but instead was discharged with a glowing testimonial.
But David Perry, for the prosecution, said the questions surrounding the legality of the invasion were irrelevant as the case centred solely around the orders given to Flt-Lt Kendall-Smith.
The defendant faces charges that: he failed to comply with an order on 1 June 2005 to attend RAF Kinloss for pistol and rifle training; failed on 6 June to attend a helmet fitting; and between 12 and 24 June failed to attend a training course. He is also charged with failing to attend a deployment briefing at RAF Lyneham on 30 June and failing to comply with an order to replace a squadron leader for Operation Telic in Basra, southern Iraq, by 12 July.
Mr Perry said: “To suggest that sending a member of the armed forces for pistol training is in some way unlawful would be an astonishing, if not startling, conclusion.” He added that the international war crime of aggression was not relevant to the case as the charges relate to the period of May to July last year.
But Mr Sapsford said that although Flt-Lt Kendall-Smith would, as a doctor, take a non-combatant role, he feared he could be asked to oversee legally ambiguous situations such as interrogations of prisoners. He said: “The flight-lieutenant has been to Iraq, he knows in his own mind what it is like being there. As a doctor, he is entitled to say: ‘I will be sharing responsibility by even demonstrating complicity’.”
Mr Sapsford added that the defence team was prepared to produce expert evidence to show that UN resolution 1546, relied upon by the British and American governments to justify the invasion, was no defence in international law.
If the judge rules in Flt-Lt Kendall-Smith’s favour, the case will have wide implications for all members of British armed forces serving or preparing to serve in Iraq.
The judge advocate, Jack Bayliss, adjourned the hearing until next Wednesday.
I can't recall my military law these days – mercifully it was a long time ago – but I thought there was a difference between a normal deployment (in the UK, for example) and deployment and actions within a theatre of war. If so, then that could weaken Kendall-Smith's position. It's not entirely clear as to the legal status of action in Iraq anyway, given that we have not declared war on an identifiable enemy.
All but the charge of 'failing to replace' would probably stand. However it may be that other legislation – Human Rights etc – may supercede much of this. But there should be a clear division/separation between training or preparing for action and action itself. That's probably where the argument should go.
Likely that some of the debate revolves around whether all orders were given as part of the (illegal, strictly?) Operation Telic or whether the orders related to what might be considered routine training etc.
Whatever, I wish Flt-Lt Kendall-Smith good luck.