Prisoner of conscience: RAF doctor who refused Iraq service is jailed
Doctor. RAF officer. And now war criminal. Flt Lt Malcolm Kendall-Smith was yesterday jailed for refusing to serve in Iraq
Friday 14 April 2006
An RAF doctor who refused to serve in Iraq because he believed the war to be illegal was jailed for eight months yesterday.
The conviction and imprisonment of Flight Lieutenant Malcolm Kendall-Smith, the first member of the armed forces to be charged with disobeying orders to deploy in Iraq, has provoked widespread condemnation. Anti-war groups declared that a man who had shown great moral courage and acted according to his conscience was being pilloried for his beliefs.
MPs said that the high-profile case illustrated the "legal quagmire" created by Tony Blair's decision to follow George Bush and take part in the conflict.
Kendall-Smith's lawyers said they had received more than 500 messages of support, many of them from serving and former members of the forces.
Bitter accusations and recriminations dominated the trial, which took place at Aldershot barracks. At an earlier hearing, Assistant Judge Advocate Jack Bayliss had ruled the doctor could not use the defence that in refusing military orders he had acted according to his conscience. The judge maintained that the US and British forces were now in Iraq at the invitation of the Iraqi government.
Judge Advocate Bayliss also refused to allow the defence to call as witnesses, among others, Ben Griffin, a member of the SAS who resigned from the Army because he believed the Iraq war was illegal and who refused to serve alongside US forces because of the excesses they committed. Also barred was an Iraqi doctor who had flown to Britain to describe his experience of what has happened to the country following the invasion.
During the hearing Kendall-Smith repeatedly expressed his view that an order for him to deploy to Basra was illegal. He also described the actions of the Americans in Iraq as being akin to the Nazis.
It took the military jury of five RAF officers just one hour and 28 minutes to find Kendall-Smith guilty on all five charges of disobeying orders.
Judge Advocate Bayliss accused Kendall-Smith, a former university tutor of moral philosophy, of "amazing arrogance" and seeking to be a "martyr". The sentence was intended to make an example of him and serve as a warning to others in the forces.
"Obedience of orders is at the heart of any disciplined force. Refusal to obey orders means the force is not a disciplined force but a rabble. Those who wear the Queen's uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences," he said.
"We have considered carefully whether it would be sufficient to dismiss you from the Royal Air Force and fine you as well. We do not think that we could possibly be justified in taking such a lenient course. It would send a message to all those who wear the Queen's uniform that it does not matter if they refuse to carry out the policy of Her Majesty's government."
A spokeswoman for the Royal Air Force Prosecuting Authority said: "It is right that Flt Lt Kendall-Smith was prosecuted for disobeying legal orders. British troops are operating in Iraq under a United Nations mandate and at the invitation of the Iraqi government."
As well as the sentence, which will be served in a civilian prison, Kendall-Smith was ordered to pay £20,000 towards his defence costs which were covered by legal aid. The court heard that he had personal savings of £20,000. His solicitor, Justin Hughston-Roberts said the intention was to appeal against both conviction and sentence.
Nick Harvey, the Liberal Democrat spokesman on defence, said "Hostility to the war is not just confined to the public at large, many members of the armed forces share their concern and have genuine moral objections to serving in Iraq.
"This case illustrates the legal quagmire that has developed over the Government's decision to go to war. The Government has repeatedly had to hunt around to find legal justification for this war."
The former Labour MP Tam Dalyell said: "Any servicemen has obligations, but a doctrine was laid down at Nuremberg [trials of Nazis for war crimes] that when orders seem to be a crime against humanity, it was not a sufficient excuse to say simply: 'They were orders and I was doing what I was told.'"
Kate Hudson, chairwoman of the Campaign for Nuclear Disarmament, said: "Many people believe the war in Iraq was an illegal war and therefore we would consider he was quite within his rights and it was indeed commendable he believed it was right to stand up to what he considered to be an illegal instruction to engage in an illegal war. We have full sympathy for him and he has our full support. We consider it to be a commendable and moral act."
Lindsey German, convener for the Stop the War Coalition, said: "The majority of public opinion agree this war was not based on international law."
Why he sacrificed his career and his liberty
"I have been convicted and sentenced, a very distressing experience. But I still believe I was right to make the stand that I did and refuse to follow orders to deploy to Iraq - orders I believe were illegal. I am resigned to what may happen to me in the next few months. I shall remain resilient and true to my beliefs which, I believe, are shared by so many others."
"Iraq was the only reason I could not follow the order to deploy. As a commissioned officer, I am required to consider every order given to me. Further, I am required to consider the legality of such an order not only as to its effect on domestic but also international law. I was subjected, as was the entire population, to propaganda depicting force against Iraq to be lawful. I have studied in very great depth the various commentaries and briefing notes, including one prepared by the Attorney General, and in particular the main note to the PM dated 7 March 2003. I have satisfied myself that the actions of the armed forces with the deployment of troops were an illegal act - as indeed was the conflict. To comply with an order that I believe unlawful places me in breach of domestic and international law, something I am not prepared to do."
"The invasion and occupation of Iraq is a campaign of imperial military conquest and falls into the category of criminal acts. I would have had criminal responsibility vicariously if I had gone to Iraq. I still have two great loves in life - medicine and the RAF. To take the decision that I did caused great sadness, but I had no other choice."
'Criminals' in Blair's Britain
She became the first person to be convicted under the Serious Organised Crime and Police Act (SOCPA) 2005 last December. She had been arrested with Milan Rai at the Cenotaph in Whitehall, for reading out the names of British soldiers killed in Iraq. She was given a conditional discharge by Bow Street magistrates and ordered to pay £100 costs.
Mr Haw, 56, has held a protest against Britain's involvement in Iraq in Parliament Square since 2001, sleeping in the square. He was the intended target of SOCPA, which states that anyone demonstrating in a half-mile zone in central London must have police permission, but he won a legal battle to continue because his protest began before the law was introduced. The Government has taken the matter to the Court of Appeal.
On Wednesday, Mr Rai was fined £350 and ordered to pay £150 in costs for his unauthorised demonstration at the Cenotaph, where he read out the names of UK soldiers killed in Iraq. He pleaded guilty to breaching SOCPA.
The 72-year-old former RAF pilotfrom Purton, near Swindon, was found guilty of withholding 10 per cent of his income tax in protest at the Iraq war. He had sent a note to the Inland Revenue explaining that he would give the money to charity. But in February magistrates at Chippenham, Wiltshire, dismissed his protest. Bailiffs will take property to cover the £1,215.45 Mr Barker is said to owe.
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