March 15, 2006

UK airman in court for refusing to go to Iraq

By Peter Graff

ALDERSHOT (Reuters) - A British Air Force doctor who
refused to go to Iraq because he believed the war to be illegal
pleaded his case before a military court on Wednesday.

Flight Lieutenant Malcolm Kendall-Smith, 37, had earlier
already served in Iraq and Afghanistan. But he faces five
counts of disobeying lawful orders for refusing to go on
training assignments and deploy back to Basra last year.

Government lawyers told a preliminary hearing that nothing
Kendall-Smith was asked to do could have amounted to a crime,
and he therefore had no right to disobey.

The case has received considerable publicity in Britain as
the first case of its kind since the 2003 invasion that toppled
Iraqi leader Saddam Hussein.

Kendall-Smith was born in Australia, raised in New Zealand
and holds dual British-New Zealand citizenship.

"It seems to be the thrust of your argument that the
initial invasion of Iraq was unlawful, and that nothing that
was done subsequently has made the presence of British forces
lawful," said presiding judge Jack Bayliss.

Kendall-Smith nodded.

His lawyers have argued that the decision to go to war in
2003 amounted to the crime of "aggression" under international

"He, by going as a doctor, is entitled to say: 'I would be
sharing responsibility by demonstrating complicity,"' defense
lawyer Philip Sapsford told the hearing.

"We would submit that this flight lieutenant is entitled to
ask himself, 'Should I be there in the first place? We submit
that there is an affirmative duty to disobey an unlawful

But prosecutor David Perry said that at the time
Kendall-Smith refused to go, the invasion itself was over and
British forces were in Iraq with the authority of U.N. Security
Council resolutions passed after Saddam's fall.

Opponents of the war have called it illegal because it
began without a UN resolution specifically authorizing
invasion, although the British government's top lawyer Lord
Goldsmith advised British Prime Minister Tony Blair that
military action was lawful.

The orders given to Kendall-Smith: to train how to use a
pistol; to have his helmet fitted or to work as a doctor in
Basra, did not ask him to break any laws, Perry said.

"Telling a flight lieutenant to attend in Basra as a doctor
could not involve any illegality, either in the giving of the
order or in complying with it," he added.

"In May 2005, at the time when these orders were given,
multi-national forces were present in Iraq at the request of
that sovereign nation. They were also authorized by UN security
council resolutions.

"Any suggestion that the presence of British forces in Iraq
was unlawful has no basis," he said.

Judge Bayliss is expected to decide after preliminary
hearings whether Kendall-Smith can argue that the orders he
disobeyed were illegal.

The case is due to go to a full court martial next month.