April 13, 2006

British officer jailed for refusing to go to Iraq

By Peter Graff

ALDERSHOT (Reuters) - A British Air Force doctor was
sentenced to eight months jail on Thursday for refusing orders
to go to Iraq.

Australian-born Flight-Lieutenant Malcolm Kendall-Smith,
37, was convicted by a five-member panel of officers of what
the judge called "calculated and deliberate disobedience" of
five orders to train, prepare and deploy to Iraq last year.

Kendall-Smith said he viewed the war as a crime and could
not participate in any form.

But judge Jack Bayliss ruled British troops were in Iraq in
2005 with the permission of the United Nations, and that
Kendall-Smith's view of the war's legality was no defense.

"Obedience to orders is at the heart of any disciplined
force. Refusal to obey orders means that force is not a
disciplined force but a rabble," he said.

"Those who wear the queen's uniform cannot pick and choose
the orders they follow."

His lawyer, Philip Sapsford, described him as a "man of
great moral courage" who had taken his step out of principle.

But Bayliss said Kendall-Smith had had the opportunity to
resign from the military earlier if he opposed the war.

"If they disagree with the moral position of the
government, the recourse of an officer in a volunteer service
is to do the honorable thing and to request to resign and to
give his reasons," he said.

"You didn't ask to resign. You continued to draw your
not-inconsiderable salary."

During the tense two-day court martial, on a base in
southern England, Kendall-Smith, who has dual British-New
Zealand citizenship, testified on his own behalf. He was the
only witness to be called.

In frequently abrasive exchanges from the witness stand, he
described the United States as the moral equivalent of Nazi
Germany, and the prosecutors themselves as complicit in crimes.

As an officer, he must serve his prison term in a civilian
jail. He was also expelled from the Air Force and ordered to
pay 20,000 pounds toward the cost of his defense.

In passing down his sentence, the judge said
Kendall-Smith's own testimony had hurt his case.

"You have in the view of this court sought to make a martyr
of yourself," he said. "You have shown a degree of arrogance
which is amazing."

The case was the first of its kind in Britain, with war
opponents viewing it as a landmark test of whether the decision
to invade Iraq in 2003 was lawful.

But Bayliss ruled before the trial began that the question
of the legality of the invasion itself was irrelevant, and that
British troops had a right to be in Iraq in 2005 under U.N.
resolutions passed after the fall of Saddam Hussein.

Defense lawyer Justin Hugheston-Roberts issued a statement
after the verdict, saying Kendall-Smith would appeal.

"He feels that his actions were totally justified and he
would not, if placed in the same circumstances, seek to do
anything differently," he added.