Rebel officer calm despite early setback

Malcolm Kendall-Smith

ALDERSHOT - If Malcolm Kendall-Smith is having regrets about the defiant course of action that will culminate in his court martial, he isn't showing it.

The Royal Air Force medical officer maintained his quiet composure in court this week as the legal argument supporting his refusal to serve in Iraq was firmly rejected by a military judge on an Army base in Aldershot, Hampshire.

Judge Advocate Jack Bayliss did not just dismiss Kendall-Smith's claims that the orders he was given in June last year to prepare for deployment to a base in Basra, southern Iraq, and finally disembark were illegal.

He said the Dunedin-raised and educated flight lieutenant's belief that he was a leader rather than foot soldier in his RAF serving capacity was "based on a greatly inflated sense of his own position".

"He was a non-combatant, of relatively junior rank and cannot possibly have been in any way responsible for policy," said Judge Advocate Bayliss.

The ruling is a major setback for Kendall-Smith, who faces five charges of disobeying a command, as he will be unable to argue the legality of the orders he was given at his court martial, to begin on April 11.

He will, however, take the stand to explain his actions, the first time the doctor will publicly speak about his decision to disobey orders.

His defence counsel, Philip Sapsford, QC, has argued that because a second United Nations Security Council resolution was not obtained before the United States and its allies invaded Iraq, the subsequent war was illegal under international law and therefore the continued multinational presence is also illegal.

But Judge Advocate Bayliss affirmed the prosecution's argument that UN resolutions approving the presence of troops in Iraq after the war legitimised the present activities of multinational forces.

"I regard those resolutions as clear authority by the United Nations Security Council for the presence of British forces between the limiting dates in the charges faced by the defendant," he said.

It was unnecessary therefore for the judge to delve into the issue of the legality of the original invasion in 2003, an issue central to Kendall-Smith's defence.

If Kendall-Smith, 37, has failed to have any of his legal standpoints validated, his case has certainly captured public attention.

As he awaited the judgment at the RAF base in Kinloss, Scotland, last Saturday, tens of thousands of people braved the biting cold in London to mark the third anniversary of the invasion of Iraq and protest against the presence of troops there.

Kendall-Smith's case was familiar with several marchers the Weekend Herald spoke to.

The crowd cheered 28-year-old Ben Griffin, a former SAS soldier who was released from service without punishment and with a glowing reference after refusing to return to Iraq.

Griffin created a stir in the British media with his blunt admissions that he refused to return to serve in Iraq after witnessing dozens of illegal acts carried out by US soldiers who, he claims, saw the Iraqis as "subhuman".

Unlike Kendall-Smith, Griffin was released from service without punishment. He may now be called as a witness in Kendall-Smith's court martial.

Kendall-Smith may know his fate around Easter. Potential punishments range from demotion of rank to two years in prison.