Officer to test Iraq war
Peter Wilson, Europe correspondent
October 24, 2005
A BRITISH court martial will begin on Thursday against a Brisbane-born Royal Air Force officer for refusing to return to Iraq because of his belief that the invasion of the Middle Eastern country was illegal.
Flight Lieutenant Malcolm Kendall-Smith, a 37-year-old RAF doctor, could be jailed over the first criminal charges brought against any full-time British officer for refusing to serve in Iraq.
The preliminary hearing at a military base in Bulford, 120km southwest of London, will set the timetable for the full court martial of Flight Lieutenant Kendall-Smith, a joint British-New Zealand citizen who has been in the RAF for five years.
Flight Lieutenant Kendall-Smith's lawyer, Justin Hugheston-Roberts, said the case "is possibly the biggest case to come before any British court in living memory", as he believed the court could rule that the war in Iraq was illegal.
Flight Lieutenant Kendall-Smith, who has served twice in Iraq, has not declared himself a conscientious objector to all wars, arguing instead that this particular conflict was illegal.
Some British reservists have refused to serve in Iraq as conscientious objectors but no one has challenged the legality of the whole conflict in this way.
Gerry Simpson, a specialist in international law at the London School of Economics, said Flight Lieutenant Kendall-Smith's argument was sometimes called the "Nuremberg defence".
"The judges at the Nuremberg war crime trials said the (Nazi) defendants should have refused their orders because those orders were illegal in the first place," he said.
"To defend yourself on that basis, you would have to convince the court that the war itself was illegal so you should be excused from service.
"Courts in the UK are reluctant to interfere with the (Government's) prerogative to go to war but it is not inconceivable that the court might examine whether the war is, in fact, in breach of international law."
Timothy Garden, a former assistant chief of the British Defence Staff, told The Australian he believed it would be extremely difficult to convince a British court that the current military activities by US-led forces in Iraq were illegal.
Flight-Lieutenant Kendall-Smith will argue that the Attorney-General's declaration that the war was legal does not settle the issue and that the court must reach its own conclusion as to whether international law was breached by the invasion, which began without authorisation by any UN Security Council resolution.
Link Here
October 24, 2005
A BRITISH court martial will begin on Thursday against a Brisbane-born Royal Air Force officer for refusing to return to Iraq because of his belief that the invasion of the Middle Eastern country was illegal.
Flight Lieutenant Malcolm Kendall-Smith, a 37-year-old RAF doctor, could be jailed over the first criminal charges brought against any full-time British officer for refusing to serve in Iraq.
The preliminary hearing at a military base in Bulford, 120km southwest of London, will set the timetable for the full court martial of Flight Lieutenant Kendall-Smith, a joint British-New Zealand citizen who has been in the RAF for five years.
Flight Lieutenant Kendall-Smith's lawyer, Justin Hugheston-Roberts, said the case "is possibly the biggest case to come before any British court in living memory", as he believed the court could rule that the war in Iraq was illegal.
Flight Lieutenant Kendall-Smith, who has served twice in Iraq, has not declared himself a conscientious objector to all wars, arguing instead that this particular conflict was illegal.
Some British reservists have refused to serve in Iraq as conscientious objectors but no one has challenged the legality of the whole conflict in this way.
Gerry Simpson, a specialist in international law at the London School of Economics, said Flight Lieutenant Kendall-Smith's argument was sometimes called the "Nuremberg defence".
"The judges at the Nuremberg war crime trials said the (Nazi) defendants should have refused their orders because those orders were illegal in the first place," he said.
"To defend yourself on that basis, you would have to convince the court that the war itself was illegal so you should be excused from service.
"Courts in the UK are reluctant to interfere with the (Government's) prerogative to go to war but it is not inconceivable that the court might examine whether the war is, in fact, in breach of international law."
Timothy Garden, a former assistant chief of the British Defence Staff, told The Australian he believed it would be extremely difficult to convince a British court that the current military activities by US-led forces in Iraq were illegal.
Flight-Lieutenant Kendall-Smith will argue that the Attorney-General's declaration that the war was legal does not settle the issue and that the court must reach its own conclusion as to whether international law was breached by the invasion, which began without authorisation by any UN Security Council resolution.
Link Here
posted by Kangaroo Brisbane Australia at 10:15 PM
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