RAF doctor refused to fight 'illegal' Iraq war

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The Independent Online

An RAF doctor on trial for refusing to serve in Iraq told a court martial yesterday that he refused to go because the war was against "international law, the Nuremberg principles and the rules of armed conflict".

Flight Lieutenant Malcolm Kendall-Smith, the first member of the armed forces to be charged with disobeying orders to deploy in Iraq, said he had come to his decision after researching the legal advice given to Tony Blair by the Attorney General, Lord Goldsmith.

The officer, who has dual British and New Zealand nationality, told the hearing that he had "two great loves in my life, medicine and the Royal Air Force. To take the decision that I have saddens me greatly but I feel that I have no other choice."

Flt Lt Kendall-Smith, 37, has been charged with five counts of disobeying lawful commands in 2005 when he was asked to deploy to Basra inIraq. There are no set time limits on any prison sentence he may face if convicted.

The officer, who held a post as a tutor in moral philosophy at a New Zealand university, had previously served in Oman, Kuwait and Qatar in support of operations in Afghanistan and Iraq. After studying the arguments for and against the invasion he declared that he did not want to be complicit in an illegal war and tried to resign from the RAF. Giving evidence at the opening day of the court martial at Aldershot barracks in Hampshire, Flt Lt Kendall-Smith said: "The illegality of the use of force against Iraq was the only reason I could not follow this order."

Asked by his counsel, Philip Sapsford QC, why he had not taken the usual course of shortening his RAF contract and insisted on resigning, he said he could not sign the appropriate form as he had decided that "I would, in fact, refuse the orders as a duty under international law, the Nuremberg principles and the law of armed conflict".

At an earlier pre-trial hearing Assistant Judge Advocate Jack Bayliss had ruled that the doctor could not use the defence that he acted according to his conscience in refusing military orders. The judge maintained that the US and British forces were now there on the invitation of the Iraqi government.

During yesterday's hearing Judge Advocate Bayliss clashed repeatedly with the defendant and his counsel. At one point when Flt Lt Kendall-Smith began to refer to copious notes in front of him on the witness box about the legal standing of the war, the judge snapped: "I will not allow diatribes on international law. It is already clear in your evidence that you believe the war is illegal."

Later the judge stated: "I will not let this court be used as a grandstand." Flt Lt Kendall-Smith replied: "I am not grandstanding. It's in the context of the presentation of my position in my case to outline misconceptions put before this court ... if I am unable to speak how can I put my position to the court?" Judge Advocate Bayliss said: "I am not prepared to be argued with by a witness defendant in my court."

David Parry, opening the case for the prosecution, told the court martial that Flt Lt Kendall-Smith had applied for early release from the RAF a month prior to his refusal to go to Iraq.

"The background to this case appears to be a sense of grievance felt by the defendant, first that he couldn't immediately resign from the RAF, and secondly that he remained eligible for deployment overseas," he said.

Flt Lt Kendall-Smith vehemently denied in the witness box that his decision to leave the RAF was influenced by any other factor than serving in Iraq. He claimed that he had already been verbally notified of the deployment, triggering his decision to resign.

The hearing continues.

His words

As a commissioned officer I am required to consider... every order that is given to me and I am required to consider the legality of each order... Since my initial operational deployments, I have studied... the commentaries and... notes, including one prepared by the Attorney General and in particular the note to the Prime Minister dated 7 March 2003.

I believe the occupation of Iraq is illegal... and for me to comply... would put me in conflict with both domestic and international law. The illegality of the use of force against Iraq was the only reason I could not follow this order... [and] was the only reason for my resignation.

I would, in fact, refuse the orders as a duty under international law, the Nuremburg principles and the law of armed conflict...

To take the decision I have taken saddens me but I feel I have no choice.

I was subjected, as was the entire population, to propaganda depicting force against Iraq to be lawful but it was not until the middle of 2004 that I researched and found that not to be the case.