Airman who refused to go to Iraq appears in court

ALDERSHOT, UK - A Royal Air Force doctor who refused to go to Iraq because he believed the war to be illegal pleaded his case before a military court overnight.

Flight Lieutenant Malcolm Kendall-Smith, a 37-year-old New Zealander, had earlier already served in Iraq and Afghanistan. But he faces five counts of disobeying lawful orders for refusing to go on training assignments and deploy back to Basra last year.

Government lawyers told a preliminary hearing in Aldershot, England, that nothing Kendall-Smith was asked to do could have amounted to a crime, and he therefore had no right to disobey.

The case has received considerable publicity as the first case of its kind since the 2003 invasion that toppled Iraqi leader Saddam Hussein.

Kendall-Smith was born in Australia, raised in New Zealand and holds dual British-New Zealand citizenship.

"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 Jack Bayliss.

Kendall-Smith nodded.

His lawyers have argued that the decision to go to war in 2003 amounted to the crime of "aggression" under international law.

"He, by going as a doctor, is entitled to say: 'I would be sharing responsibility by demonstrating complicity'," defence lawyer Philip Sapsford told the hearing.

"We would submit that this flight lieutenant is entitled to ask himself, 'Should I be there in the first place? We submit that there is an affirmative duty to disobey an unlawful order."

But prosecutor David Perry said that at the time Kendall-Smith refused to go, the invasion itself was over and British forces were in Iraq with the authority of UN Security Council resolutions passed after Saddam's fall.

Opponents of the war have called it illegal because it began without a UN resolution specifically authorising invasion, although the British government's top lawyer Lord Goldsmith advised Prime Minister Tony Blair that military action was lawful.

The orders given to Kendall-Smith: to train how to use a pistol; to have his helmet fitted or to work as a doctor in Basra, did not ask him to break any laws, Perry said.

"Telling a flight lieutenant to attend in Basra as a doctor could not involve any illegality, either in the giving of the order or in complying with it," he added.

"In May 2005, at the time when these orders were given, multi-national forces were present in Iraq at the request of that sovereign nation. They were also authorised by UN security council resolutions.

"Any suggestion that the presence of British forces in Iraq was unlawful has no basis," he said.

Judge Bayliss is expected to decide after preliminary hearings whether Kendall-Smith can argue that the orders he disobeyed were illegal.

The case is due to go to a full court martial next month.

- REUTERS