Kiwi in UK courtmartial drama

Somehow, in the undisciplined hubbub as the courtroom emptied for the lunch break, one man went unnoticed. Alone, of the uniformed Air Force personnel in the room, he stood and saluted the judge.

That man was Flight Lieutenant Malcolm Kendall-Smith, the New Zealander who has put the British armed forces and Government on edge with his studied conclusion that the war in Iraq breaches international law - and so he will not serve in it.

Amid the barracks and parade grounds of England's Aldershot garrison town, southwest of London, the officer stood almost a head above others in the cramped military courtroom, his Cossack-blue dress uniform crisp, his back unrelentingly straight like the portrait of a youthful Queen Elizabeth II on the wall behind him.

Kendall-Smith's explanation can be made public for the first time: he believes that by serving in an "illegal war" on Iraq, he would be complicit in acts such as the torture of prisoners at Abu Ghraib prison.

"Personal responsibility accrues vicariously by the participation in acts of aggression," he is prepared to tell a full general court-martial next month.

"I am a leader. I am not a mere follower to whom no moral responsibility can be attached."

His evidence was disclosed by defence barrister, Philip Sapsford, QC, in a last attempt to persuade Judge Advocate Jack Bayliss to drop five charges of disobeying orders.

Kendall-Smith sat silent and serious as prosecution and defence lawyers cited the Nuremberg war crimes trials in argument as to whether an officer could legitimately excuse himself from responsibility by saying, "I was only following orders".

He did not flinch as Sapsford argued that American President George W. Bush and British Prime Minister Tony Blair could not be relied upon to tell the truth about the illegality of their war.

Judge Advocate Bayliss will announce his verdict on Thursday, but seems almost certain to order a full court-martial hearing before a jury.

That trial would be at the big new court martial centre at Bulford on the Salisbury Plains, before the world's media. In Aldershot, by comparison, it seemed almost as if the Ministry of Defence had chosen to forget the public interest in the precedent-setting case.

Only an hour down the railway line from Waterloo, Aldershot was dismal, as military bases often are. The ground was grey; the trees were thin and grey; the clouds were thick and grey. Standing outside the brick courthouse, the only real colour was the yellow flag hanging above the Division 4 HQ next door.

Kendall-Smith is based at the even chillier Kinloss base in Scotland, where he has been living in virtual seclusion, eating alone, entering the barracks by a separate door, since he was charged in May last year.

Born and schooled in Brisbane, he moved to New Zealand to study medicine at Otago University. He took the country to his heart: he became a New Zealand citizen, and his parents remain in Dunedin. Concurrent with his medical degree, he took diplomas in philosophy, writing on the secular and rational morality of Immanuel Kant.

He travelled to Britain where he joined the RAF as a Flight Lieutenant in August 2000 on a six-year short-service commission. He served in Oman in 2002, supporting the Afghanistan operation; then was stationed at the RAF's Kuwait and Qatar bases supporting the Iraq invasion the following year.

After returning to Scotland, he read a legal opinion from Britain's Attorney-General, Lord Goldsmith, that challenged the legal basis for the invasion of Iraq. Perturbed, he kept schooling himself in the laws of war, and became convinced he could not participate any further in the conflict. And so, when the Air Force doctor was ordered in May last year to attend pistol and rifle training, in preparation for deployment to Basra, he refused. In the following days, he refused further orders to attend a helmet-fitting session, an initial response training session, and a deployment briefing.

And finally, he refused an order to replace a squadron leader in Basra, arriving no later that July 12.

He was present and punctual this week at his Aldershot hearing: he rose early at his central London hotel and then travelled to Aldershot. He walked in the front gate of the court, eyes front past the television cameras, carrying his uniform jacket in a suit bag.

"Please would the service members remove their head dress if they wish to do so," the judge said. Kendall-Smith, seated on a straight-backed chair in the middle of the room, adopted the posture that he would maintain for a long day of dry legal arguments: knees apart, as if in a rugby team photo. And back ramrod straight.

At the lunch break, the flight lieutenant retired to a back room with his legal team, where he nibbled on a couple of nectarines.

By four o'clock, the hearing - set down for four days - was over. The Judge Advocate had heard all he needed. Kendall-Smith stood, saluted, packed his jacket back into its suit bag, and walked out the gate.

Next month, he may not be so fortunate. Though there are signals that the prosecution could hold back from pressing for a jail sentence in such a politically explosive case, the court will nonetheless have the power to impose one.

Some politicians might be happy to sweep such an embarrassing case quietly under the carpet. But Kendall-Smith's comrades-in-arms may not be so forgiving of a New Zealand flight lieutenant, a doctor, a philosopher, who wields not a standard-issue rifle but his own moral compass.

- HERALD ON SUNDAY