Fighting war on new front

All soldiers know they have a duty to disobey illegal orders, such as shooting refugees or torturing prisoners, but now there is a new dilemma: what if the war itself is illegal?

New Zealand doctor Malcolm Kendall-Smith, 37, is facing a court martial for refusing to obey the orders of his Royal Air Force superiors to return to duty in Iraq, even though he has already served two tours there and one in Afghanistan.

His defence is that Britain cannot order his participation in an unlawful war.

Legal experts say this unprecedented case highlights a novel legal problem; that individual combatants must now consider the risk of prosecution in the International Criminal Court if they take part in illegal conflict.

Since 1945, when Nazi officials on trial at Nuremberg failed to defend themselves on the grounds that they were simply following orders, military personnel have known they had a duty to disobey illegal commands.

But until the ICC was formed in 2002, there was little risk that soldiers would be prosecuted in the international jurisdiction, unless they were involved in conflicts so horrific that the United Nations created ad-hoc war crimes tribunals, such as Rwanda or the Balkans.

Before the ICC, military personnel really only had to worry about whether any action on the battlefield (or refusal to fight) would be a breach of domestic military or civilian laws.

Now, ICC prosecutors can go after individual combatants in countries which signed the ICC statute, including Australia, New Zealand and Britain - and that makes war a tricky legal situation for any thinking soldier, says University of Sydney law professor Don Rothwell, director of the Sydney Centre for International and Global Law.

"Any serving defence personnel that has any degree of nous about them, and who thinks carefully about these matters and knows their country has signed up to the ICC statute, would probably think twice about becoming involved in a conflict which might be illegal, or which might see them asked to perform certain tasks which would potentially constitute a war crime," Rothwell says.

It makes war, more than ever, a "terrifying situation", says Kendall-Smith's lawyer, Justin Hugheston-Roberts.

"Soldiers now have to consider what do they pack in their rucksack? Do they pack their bayonet, their grenade and their lawyer's telephone number?"

So is the war legal? UN Secretary-General Kofi Annan said it was not, and the invasion in 2003 went ahead despite the absence of UN resolutions endorsing the use of force.

None of the states involved has formally declared war, and British Attorney-General Peter Smith warned the Blair Government there was no legal basis for invasion.

But since then, UN resolutions and the new Iraqi government have agreed that coalition forces can remain in Iraq - a situation Rothwell believes might hamper Kendall-Smith's case. "Whereas the original intervention in Iraq in 2003 is exceptionally problematic, I don't think the same can be said for the current military operations in Iraq in 2005." He believes, however, that the "illegal war" defence will become more common.

But military historian Professor John Cookson of Canterbury University thinks Kendall-Smith's lawyers can contest the legality of present Iraq operations.

"There is an argument that can be sustained that the United Nations has not sanctioned this war. Some people would argue there was no formal resolution actually sanctioning the [start of hostilities]," Cookson says, though he believes Kendall-Smith has little chance of success.

"The military authorities will try to keep the question confined to the obligations of a soldier under national military law. They'll try to avoid the idea that a soldier has obligations under international humanitarian law, because you can't have an army operating as a group of independent citizens."

Kendall-Smith is not claiming an objection to all wars, just this particular conflict. Born in Australia to New Zealand parents, he grew up in Dunedin and trained in medicine at Otago University before joining the RAF for a six-year term in 2000.

Now a flight lieutenant, he was suspended on full pay in June after telling his commanders he would not return to Iraq.

CONSCIENTIOUS objection, usually defined as claiming a religious or moral objection to all war, has traditionally been invoked by civilians seeking to avoid conscription.

But the horrors of Iraq are prompting thousands of US personnel to seek escape, says American soldiers' rights activist Steve Morse of the Central Committee for Conscientious Objectors.

Last year, the GI Rights Hotline at the Central Committee took 32,000 calls from military personnel worried about the war. Many of those were absent without leave or wanted to become conscientious objectors to get out of the military, Morse says.

He hopes Kendall-Smith can persuade the court martial to even consider the war's legality. That course was tried and rejected in the cases of US servicemen Kevin Benderman, now in jail for refusing to return to Iraq, and Jeremy Hinzman, who has fled to Canada and is appealing for refugee status.

"At least in the UK case they will be able to introduce all these arguments as evidence and create a public forum - public opinion plays a part in any court proceeding," Morse says.

In New Zealand, the Armed Forces Discipline Act provides a penalty of up to five years' jail for anyone who disobeys a lawful command.

Some orders are clearly illegal, such as torturing prisoners, says Brigadier-General Kevin Riordan, director-general of the New Zealand Defence Forces legal service, but others are not so clear.

"A service member who is uncertain about the legality of an order may question that order [and] if informed that the order is lawful he or she must comply with it, but can make a formal complaint about the order.

"There are no prescribed procedures relating to conscientious objection. If a service member sought to be relieved of his or her duties on the grounds of objection to the particular conflict, the case would fall to be resolved on its particular merits.

"Generally speaking, a refusal to deploy by a service member would be a breach of the oath of allegiance and would result in disciplinary action."

SO does a soldier or conscripted civilian have a right to refuse to go to a particular war, even if they do not claim to abhor all conflict?

The answer is yes in Australia, where a 1992 law allows conscientious objection by potential conscripts to individual conflicts, except when the Australian mainland is threatened with invasion.

But in Britain, New Zealand or the US, conscientious objectors must prove they reject the very concept of war.

Soldiers cannot choose their own battles, says Neil James, a former Australian Army officer now running the think-tank Australian Defence Association.

"When you join the defence force you join to serve on an unlimited basis. It's not a limited liability company.

"Military people also have to consider that if you let one person off, you open the floodgates and then you'll have people picking and choosing between what they do all the time."

Major Peter Brock, a legal staff officer with the New Zealand Territorial Force, agrees. "If a person joins and takes the oath of allegiance, lawful orders must be obeyed irrespective of personal viewpoint."

Victoria University law lecturer Alberto Costi, who teaches the law of armed conflict, says use of force is always illegal except in cases of self-defence from armed attack, or clear UN Security Council mandate.

"No war is legal, only in a limited number of instances is use of force tolerated, but the Iraqi intervention would not fall under any of these exceptions."

But he believes Kendall-Smith is "not pursuing the right course of action.

"Even if the war is illegal, this does not mean that the order to go back to Iraq is illegal as such", Costi says.

"It would be a different cup of tea if he was asked to go to Iraq with the order to participate in a genocide campaign or to kill civilians randomly."