Air force man and judge clash at court martial

Malcolm Kendall-Smith

ALDERSHOT, UK - A New Zealander being court martialled for refusing to go to Iraq last year has been barred from explaining why he believed the Iraq war was illegal.

Royal Air Force Flight Lieutenant and doctor Malcolm Kendall-Smith, 37, took the stand in his own defence, the only witness called in a case that could see him jailed indefinitely for refusing to go to Iraq.

But judge advocate Jack Bayliss has already ruled at pre-trial hearings last month that orders for troops to go to Iraq in 2005 were legal, and said Kendall-Smith could not dispute that from the witness stand.

The trial, the first of its kind in Britain over Iraq, led to ill-tempered exchanges after the judge refused to allow Kendall-Smith to read from a collection of documents.

"I am not going to allow diatribes on international law," the judge said. "I will not allow this court to be used as a grandstand."

"I am not grandstanding," Kendall-Smith replied, adding that he wanted only to correct "misconceptions".

"I have already ruled on whether they are misconceptions or not," the judge replied. "I am not prepared to be argued with by a defendant witness in my court."

Kendall-Smith told his superiors in May 2005 that he would not go to Iraq because he believed the war was illegal and that to go there would violate British and international law.

He faces five counts, one of refusing to go to Iraq and four of refusing to attend pre-deployment training sessions.

"For me to comply with an order which I consider to be illegal places me in breach of domestic and international law, something that I am not prepared to do," he said in a statement to military police which was read out to the court.

"I have two great loves in life: medicine and the Royal Air Force. To take this decision saddens me greatly, but I have no other choice."

Bayliss ruled in pre-trial hearings that British forces were in Iraq in 2005 with the permission of the United Nations Security Council and an elected interim Iraqi government.

A civilian judge advocate, he oversees the hearings before a panel of five military officers who act as a jury.

"The presence of British forces in Iraq was not unlawful. No question of any unlawful order being given arises in this case," prosecutor David Perry told the panel of five.

"Objectively viewed, the orders were lawful, and, as was put to the defendant on interview, he cannot pick and choose whether to obey."

Kendall-Smith said he initially tried to resign from the military after hearing he was going to be sent to Iraq, but later decided "duty demanded" he stay in the air force and refuse the order.

"I should indeed refuse the order as a duty under international law and the Nuremberg principle of the law of armed conflict."

Opponents of the war have argued that the 2003 US and British invasion of Iraq was illegal because it was not explicitly endorsed by the United Nations.

But the judge has ruled that the legality of the 2003 invasion is not relevant in Kendall-Smith's case, because by the time he was ordered to go there in 2005, the Security Council had explicitly authorised the presence of foreign troops in Iraq.

- REUTERS