RAF doctor faces court martial over stand on Iraq

An RAF doctor who has refused to serve in Iraq "honestly" believes the war is illegal, a court martial hearing was told today.

Flight Lieutenant Dr Malcolm Kendall-Smith refused to return to Iraq even though he had served two tours of duty in the country.

He faces five charges of failing to comply with a lawful order.

At a pre-trial hearing in Aldershot, Dr Kendall-Smith's defence counsel Philip Sapsford QC 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.

He said that an attack on the UK or one of its allies was not imminent and so therefore the war was not lawful.

"The flight lieutenant's case is that Iraq was and remains under occupation," said Mr Sapsford.

"If the UK is not entitled in international law to use force against Iraq, the flight lieutenant is entitled to say to this tribunal 'I hold that belief honestly and in these circumstances it's my duty to disobey these orders'."

Mr Sapsford told the hearing, presided over by Assistant Judge Advocate Jack Bayliss, that the case for Dr Kendall-Smith was not just a question of law.

Dr Kendall-Smith, who is now based at RAF Kinloss in Scotland, faces five charges of failing to comply with a lawful order.

Four of these relate to him refusing to carry out preparatory training with the final charge relating to his refusal to deploy.

The prosecution says that at the time of the officer's alleged offences the deployment of British forces in Iraq was and still is lawful and so the orders he was given should have been obeyed.

The five-day pre-trial hearing is likely to centre on the issues of the legality of the war in Iraq.

If the Judge Advocate rules that the war was lawful then the officer will go before a court martial next month to face the charges.

Dr Kendall-Smith's solicitor Justin Hugheston-Roberts has said earlier that if his client was justified in his concerns about the legality of the war then any ruling by the court in his favour could have wide reaching implications.

Mr Sapsford said that Ft Lt Kendall-Smith faced a legal rather than a moral dilemma when he was asked to return to Iraq.

He explained that the defendant believed that the invasion of Iraq had not complied with legal obligations to protect British citizens or allies.

He said that Ft Lt Kendall-Smith said to himself 'We did nothing to protect British lives but what it will do is everything to destroy the lives of many thousands of Iraqis.

'Like today, what do you read in the newspapers every day, what am I being asked to share responsibility for?'

Mr Sapsford explained that although Ft 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 UK and US governments to justify the invasion, was no defence in international law.

Mr Sapsford also said he was considering calling former SAS soldier Ben Griffin, who recently resigned because of his objections to the war, to give evidence.

The 28-year-old told The Sunday Telegraph that he had expected to face a court martial for his refusal to serve but instead was discharged with a glowing testimonial.

David Perry, prosecuting, said the questions surrounding the legality of the invasion of Iraq were irrelevant as the case centred solely around the orders given to Kendall-Smith.

The defendant faces charges that he failed to comply with an order on June 1, 2005, to attend RAF Kinloss for pistol and rifle training, failed on June 6, 2005, to attend a helmet fitting and between June 12 and 24, 2005, failed to attend a training course.

He is also charged with failing to attend a deployment briefing at RAF Lyneham on June 30, 2005, and failing to comply with an order to replace a squadron leader for Operation Telic in Basra, Iraq, by July 12, 2005.

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.

He said: "Firstly, the international customary war crime of aggression is not an offence in domestic law.

"Secondly, as from May 2003, the multi-national force in Iraq was present in that jurisdiction at the request of the provisional government and present under the authority of the UN security council to assist in restoring peace and stability in Iraq and to assist in the move to a democratic government."