Malcolm Kendall-Smith

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Malcolm Kendall-Smith (b. 1968/1969) was a medical officer in the British Royal Air Force. He was born in Australia, raised in New Zealand and has dual British-New Zealand citizenship.^[1]

He was the first British officer to face criminal charges for challenging the legality of the war against Iraq. On 5 October 2005 he was charged with five counts of disobeying a lawful command between 1 June and 12 July 2005.^[2] Four of these relate to him refusing to carry out preparatory training with the final charge relating to his refusal to deploy to Iraq.^[3]

In October 2005 his solicitor, Justin Hugheston-Roberts, told the Sunday Times "He is not arguing that he is a conscientious objector. He is arguing that the war is manifestly unlawful."^[1]

Kendall-Smith's last place of duty was at RAF Kinloss in Scotland and prior to his discharge from the RAF, he held the rank of Flight Lieutenant.

1 Pre-trial hearing
2 Court-martial
3 Post-Trial Statement
4 Debate and comment
5 Imprisonment and Release
6 See also
7 References
8 External links

[edit] Pre-trial hearing

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In a statement to the court martial at a pre-trial hearing in Aldershot, on 15 March 2006, Kendall-Smith said: "I am a leader. I am not a mere follower to whom no moral responsibility can be attached."^[2]

"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 advocate Jack Bayliss. Kendall-Smith nodded.^[4]

Philip Sapsford, QC, defending, told the court martial: "The flight lieutenant is entitled to advance before this tribunal that the use of force in Iraq was unlawful in international law," essentially reasoning that Kendall-Smith should be allowed to argue that any participation in the war effort was therefore unlawful.^[2] Sapsford added that the defence team was prepared to produce expert evidence to show that UN Resolution 1546, relied upon by the UK and U.S. governments to justify the 2003 Invasion of Iraq, was no defence in international law.^[3] 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.^[3]

Prosecutors argued that the legal questions surrounding the invasion of Iraq were irrelevant and that the case should centre only around the official orders given to Kendall-Smith. Prosecutor David Perry argued that at the time Kendall-Smith refused to deploy, 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.^[4]

A ruling on 22 March 2006, by the judge advocate Jack Bayliss, concurred. Bayliss dismissed Kendall-Smith's argument, ruling that he must face trial by court martial and will not be allowed to argue that the order to deploy was illegal.^[5] Obviating Kendall-Smith's argument that any participation in the war effort was unlawful on the basis of an illegal invasion, Bayliss asserted that British forces had full justification under U.N. resolutions 1511 and 1546 to be in Iraq at the time the charges were filed against Kendall-Smith in June and July, 2005.^[6]

Although Principle IV of the Nuremberg Principles states that acting under orders of a "Government or of a superior does not relieve him from responsibility under international law," the judge advocate also rejected Kendall-Smith's claim that by serving in Iraq he could be complicit in a crime of aggression. Such a crime "cannot be committed by those in relatively junior positions such as that of the defendant. If a defendant believed that to go to Basra would make him complicit in the crime of aggression, his understanding of the law was wrong," Bayliss said.^[6]

The authority for a ruling such as this (whether or not cited at this trial) is the High Command case of 1953: Template:Copy to section Wikiquote

"If and as long as a member of the armed forces does not participate in the preparation planning, initiating, or waging of aggressive war on a policy level, his war activities do not fall under the definition of crimes against peace. It is not a person's rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of crimes against peace.:

International law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. Bu: we do not find that, at the present stage of development, international law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers. Anybody who is on the policy level and participates in the war policy is liable to punishment. But those under them cannot be punished for the crimes of others. The misdeed of the policy makers is all the greater in as much as they use the great mass of the soldiers and officers to carry out an international crime; however, the individual soldier or officer below the policy level is but the policy makers' instrument, finding himself as he does, under the rigid discipline which is necessary for and peculiar to military organization.:

We do not hesitate to state that it would have been eminently desirable had the commanders of the German armed forces refused to implement the policy of the Third Reich bv means of aggressive war. It would have been creditable to them not to contribute to the cataclysmic catastrophe. This would have been the honourable and righteous thing to do; it would have been in the interest of their State. Had they done so they would have served their fatherland and humanity also. But however much their failure is morally reprimandable, we are of the opinion and hold that international common law, at the time they so acted, had not developed to the point of making the participation of military officers below the policy making or policy influencing level into a criminal offence in and of itself.":

The prosecution could also have argued that an order to deploy to Iraq could not have been illegal for Kendall-Smith, as he was a medical officer, not a combatant or involved in activities in support of combat. Indeed, it could have been argued that his refusal to deploy prejudiced the duties of the United Kingdom under the Geneva Conventions to see that the sick and wounded are collected and cared for.

[edit] Court-martial

A Court-martial in Aldershot acted from 11 April to 13 April 2006. Kendall-Smith was found guilty on all five charges of disobeying orders, and sentenced to a penalty of eight months in prison. As well as the jail sentence, which he serves 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. Kendall-Smith also received a discharge from the Service.

[edit] Post-Trial Statement

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Shortly after the Court-Martial passed sentence, Kendall-Smith made the following statement:

"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."

[edit] Debate and comment

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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. Nick Harvey, 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."

At the centre of the debate on the Iraq war lies legality and the invasion's questionable basis in international law. Leading the argument for the British Government is Lord Goldsmith, the Attorney General. He told the Prime Minister that UN Security Council Resolution 1441, which found Saddam Hussein to have failed to disarm, could be used to justify war without a second resolution being passed, if it could be shown that Iraq was still in direct breach.

It is now clear, however, that even Lord Goldsmith had his reservations about the Government's position because of worries that 1441 did not explicitly set out the conditions upon which military action could be taken.

During 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 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 force, citing the importance of conformance to orders:

"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 serious consequences.

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 Flight Lieutenant 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."

He has been followed by the similar case of Trooper Ben Griffin.

Parallels and contrasts have been drawn between Kendall-Smith and Air Commodore Charlton who refused to continue serving with RAF Iraq Command in the 1920s.^[7]

Kendall-Smith has recently likened the modern Western world to Nazi Germany.^{[citation needed]}

[edit] Imprisonment and Release

Kendall-Smith was released early from his eight month prison sentence in mid-June 2006. On his release, he was tagged and placed under daily curfew from 6.30 pm. These restrictions continued until September 2006. Kendall-Smith has been banned from having any contact with the media until December 2006.^[8]