From The Guardian
A Royal Air Force doctor who refused to be sent to Iraq after arguing that the conflict was illegal today pleaded not guilty to five charges of failing to comply with orders at a court martial.
Flight Lieutenant Malcolm Kendall-Smith, 37, said he had studied the judicial advice given to the prime minister, Tony Blair, ahead of the war and other reports about its legality before making his decision.
“As a commissioned officer I am required to consider each and every order that is given to me and I am required to consider the legality of each order in domestic and international law,” Flt Lt Kendall-Smith said in a statement to police last year.
“I have satisfied myself that the actions of the armed forces in Iraq were in fact unlawful, as was the conflict,” he said. “I believe that the current occupation of Iraq is an illegal act and for me to comply with an act which is illegal would put me in conflict with both domestic and international law.
“I have two great loves; medicine and the RAF. To take the decision I have taken saddens me greatly but I feel I have no choice.”
Prosecutors insist that Flt Lt Kendall-Smith’s defence is irrelevant. Opening the prosecution case, David Perry told the court martial in Aldershot, Hampshire, that Flt Lt Kendall-Smith, who has joint British-New Zealand nationality, had applied for early release from the RAF a month before his alleged refusal to carry out orders.
“The background to this case appears to be a sense of grievance felt by the defendant, firstly that he could not immediately resign from the RAF, and secondly that he remained eligible for deployment overseas,” Mr Perry said.
After handing in a letter of resignation in May last year, Flt Lt Kendall-Smith was told by his commanding officer that medical officers applying for early release normally had to wait about a year to leave the RAF. Later that month he was told he would be going to Iraq, the court heard.
Mr Perry said the prosecution’s case was also that the orders given to Flt Lt Kendall-Smith dated from June last year, by which point British forces were in Iraq at the invitation of the Iraqi government, meaning their deployment could not be illegal.
Additionally, it was not Flt Lt Kendall-Smith’s responsibility to judge the legality of orders given to him, Mr Perry said.
At a pre-trial hearing last month, Judge John Bayliss ruled that at the time of the doctor’s refusal to go to Iraq, British forces had full justification to be there under UN resolutions.
The charges faced by the doctor allege he failed to comply with five lawful orders in June and July last year related to his departure for Iraq and preparations for it, such as weapons training and a helmet fitting.
The principles of the Nuremberg Charter provide the underpinning to parts of the defence case and can be read here
I'm not sure whether Flt Lt Kendall-Smith will win his appeal, in that his objections – well founded though they may be – ought to have been made plain at the time of receipt of the various orders. If he refused a lawful order and his superiors then chose to ignore the matter that would appear to be a dereliction of their duty.
It would seem that MOD's case hinges on a repeated failure to comply with orders given over a period of time, and the detail of the contract between the Defendant and the Crown. What his CO apparently was describing was the 'normal' waiting period of one year. One has to ask whether this is a contractual point or merely routine administrative procedure.
Maybe the civil servants have not read Heller's Catch 22, but in any event, sending an unwilling officer under some duress to Iraq is not conducive to the best standards of medical care. Why did the MOD bother to make an issue of this? Perhaps 'pour encourager les autres'? This is hardly indicative of a confident and professional man-management operation.
I think the appeal will revolve to some extent on the contractual nature of Flight Lieutenant Malcolm Kendall-Smith’s commission. And many points of detail should be considered by the appeal court.
The fact that he apparently repeatedly refused to obey orders is also pretty complex. If his commanders were confronted with an officer who refused to carry out an order they should have taken immediate disciplinary action. To do otherwise would have been a dereliction of duty on their part. To fail to take action on five occasions over a period of two months betrays an incompetence and compounds their own failure and culpability. And it could be argued that this failure essentially condoned the Flight Lieutenant’s actions. Presumably this inability to command their subordinates effectively will be shown in their own service records.
I think the appeal will revolve to some extent on the contractual nature of Flight Lieutenant Malcolm Kendall-Smith's commission. And many points of detail should be considered by the appeal court.
The fact that he apparently repeatedly refused to obey orders is also pretty complex. If his commanders were confronted with an officer who refused to carry out an order they should have taken immediate disciplinary action. To do otherwise would have been a dereliction of duty on their part. To fail to take action on five occasions over a period of two months betrays an incompetence and compounds their own failure and culpability. And it could be argued that this failure essentially condoned the Flight Lieutenant's actions. Presumably this inability to command their subordinates effectively will be shown in their own service records.
I think the appeal will revolve to some extent on the contractual nature of Flight Lieutenant Malcolm Kendall-Smith's commission. And many points of detail should be considered by the appeal court.
The fact that he apparently repeatedly refused to obey orders is also pretty complex. If his commanders were confronted with an officer who refused to carry out an order they should have taken immediate disciplinary action. To do otherwise would have been a dereliction of duty on their part. To fail to take action on five occasions over a period of two months betrays an incompetence and compounds their own failure and culpability. And it could be argued that this failure essentially condoned the Flight Lieutenant's actions. Presumably this inability to command their subordinates effectively will be shown in their own service records.