Court martial to hear evidence of Iraq atrocities

Malcolm Kendall-Smith could face two years in prison for defying a military order. Picture / Reuters

Explosive first-hand accounts of atrocities committed by coalition forces in Iraq are expected to be given at the court martial of New Zealander Malcolm Kendall-Smith, which begins today in England.

The 37-year-old Dunedin-educated Royal Air Force doctor faces a maximum penalty of two years in prison for defying an order to serve on a military base at Basra in southern Iraq.

A ruling in his case handed down late last month prevents Kendall-Smith's lawyers from arguing the legality of the Iraq war during the court martial.

But they will present witness testimony to back up their case that the conduct of coalition forces in Iraq breaches the United Nations resolutions that legitimise their presence there.

The defence's key witness, 28-year-old former Special Air Service trooper Ben Griffin, joined the elite force in 2003 after a seven-year stint in the Parachute Regiment, but stepped down last June after serving three months in Baghdad.

He refused to fight alongside American soldiers after becoming concerned by what he describes as indiscriminate and disproportionate use of firepower by US forces on a daily basis.

"I reached a line that I wasn't prepared to cross," he told the Herald.

Despite his opposition, he was not punished and was released from the SAS with a glowing reference, treatment he says is in stark contrast to Kendall-Smith's.

"I've agreed to give evidence at Kendall-Smith's trial because I agree with the position he's taken and I don't think it's fair that I've been allowed to leave the Army with my record intact and this man is being court-martialled," said Griffin.

Although Griffin was granted a clean exit from the SAS, Government lawyers have threatened him with legal action if he reveals sensitive information.

Kendall-Smith will also take the stand at the court martial, being held in the garrison town of Aldershot, to explain publicly his decision to refuse orders.

His lawyer, Justin Hugheston-Roberts, said evidence would be called that would be of great public interest. He declined to elaborate, but it is understood to include the first-hand accounts of Griffin and Dr Salam Taha Ismael, an Iraqi doctor and chairman of Doctors For Iraq, an Iraqi non-government organisation.

The Herald has seen Dr Ismael's statement, which outlines many atrocities, crimes and breaches of human rights and the Geneva Convention committed by coalition troops in places such as Fallujah, a hotspot for insurgent attacks since the war ended.