NZer faces jail in Britain after refusing to serve in Iraq

A New Zealander serving in the Royal Air Force faces jail in Britain for refusing to serve in Iraq, a war he thinks is illegal.

Flight-Lieutenant Malcolm Kendall-Smith, 37, is to be court-martialled for "refusing to obey a lawful command" after telling his commanding officer he would not return to Iraq.

He is the first British officer to face criminal charges for challenging the legality of the war, the Sunday Times reported.

Flt Lt Kendall-Smith is an RAF medical officer.

He was born in Australia, raised in New Zealand and has dual British-New Zealand citizenship.

He has been decorated for his service in Afghanistan and for two tours to Iraq.

After studying the legal position, and the advice of British Attorney-General Peter Goldsmith, he decided the war was unlawful and it would be wrong for him to return.

His solicitor, Justin Hugheston-Roberts, told the Sunday Times preliminary court-martial proceedings were expected to begin this year.

Flt Lt Kendall-Smith did not object in principle to serving in any war, provided it was legal.

"He is not arguing that he is a conscientious objector. He is arguing that the war is manifestly unlawful," Mr Hugheston-Roberts said.

Flt Lt Kendall-Smith is barred by military regulations from talking to the media.

A colleague told the newspaper he was in no doubt the war was illegal and the Government had spun its position on the evidence.

"He takes the view this is something which is worth going to prison for."

His defence will be based on the manual of RAF law stating a serving officer is justified in refusing to obey a command if it is illegal.

Britain was part of a United States-led force that invaded Iraq without a United Nations mandate -- an action that could be argued to mean there was no legal justification for the war.

Flt Lt Kendall-Smith was suspended on full pay in June. He was charged on October 5 and served with court-martial papers.

He faces four counts of disobeying a lawful command.

His case was today reported by Islam Online.

Lord Goldsmith raised doubts over the legality of the invasion in 13 pages of legal advice to British Prime Minister Tony Blair in March 2003.

Flt Lt Malcolm Kendall-Smith is based at Kinloss in Scotland.

- NZPA