Editorial: Dissenter threatens war effort

From the Nuremberg Trials, which decided the fate of many of Germany's World War II leaders, came a new set of principles. Most fundamentally, these decreed that when an illegal act was committed, it was no longer a defence to say the perpetrator was only following orders. Ever since, military leaders have grappled with the consequences.

They worried not so much about crimes committed by individual soldiers or units; the Nuremberg principles, as enshrined in service law, have accommodated outrages such as occurred at My Lai and Abu Ghraib prison. Of more concern to them was the cohesiveness of the armed services and the ability to wage a successful war if officers were to disregard or disobey government orders.

This explains the strong reaction to Flight Lieutenant Malcolm Kendall-Smith, a New Zealander serving in the Royal Air Force who has refused to do a third tour of duty in Iraq because he believes the war is illegal. Court-martial proceedings have begun on the grounds of his "refusing to obey a lawful command".

Flight Lieutenant Kendall-Smith's lawyer says he will contest the charges by seeking a judicial ruling on whether the war is illegal. That, in turn, will raise issues that appeared to perplex the British Attorney-General, Lord Goldsmith, during the lead-up to the Iraq conflict. He puzzled over the sometimes ambiguous wording of United Nations resolutions aimed at Saddam Hussein's regime and managed, shortly before the invasion, to change his mind over the legality of the war.

On March 7, 2003, Lord Goldsmith concluded the position was unclear and suggested the pursuit of a new UN resolution authorising war. Ten days later, virtually on the eve of the invasion, his uncertainty disappeared. It was plain, he assured the British Cabinet, that Iraq was in material breach of three UN resolutions and that war was justified.

This switch has led to accusations that Lord Goldsmith succumbed to pressure from White House representatives. Whether that is true or not, it impinges on Flight Lieutenant Kendall-Smith's case by illustrating the interpretations that can be applied to the UN resolutions. Added to that are the nuances of international law. This is an area where nothing is cut and dried and nothing can be taken for granted. As much was emphasised when Germany and France, opponents of the war, declined to support UN Secretary-General Kofi Annan's assertion that the invasion breached the UN Charter.

Also relevant is the fact that Britain's Chief of Defence Staff sought and received from the Government a definitive declaration that the war was legal. Admiral Sir Michael Boyce was concerned that not only would British troops be potentially liable to face prosecution by an international war crimes tribunal but that legal action could be taken against the Ministry of Defence by injured soldiers or relations of troops.

This goes to the nub of Flight Lieutenant Kendall-Smith's argument. Under the Nuremberg principles, he had a right and a duty to disobey illegal orders. But what if the Government and his senior commanding officer had been advised the war was legal? Was he not then obliged to follow the dictates of that elected Government?

Flight Lieutenant Kendall-Smith's fate rests on a judicial ruling on the legality of the war. Given the nuances involved, an unequivocal decision in his favour seems unlikely. Most of all, however, it is easy to see why the RAF is pursuing his case so assiduously. This is one of its worst fears realised. It must be able to wage war without distractions of this sort. As such, it is in Britain's interests that this practice does not take root.