Opponents of Iraq war angry at jailing of doctor

Malcolm Kendall-Smith

A decision to jail a New Zealand-born Royal Air Force doctor for refusing to go to Iraq has sparked protests from opponents of the American-led invasion.

Flight-Lieutenant Malcolm Kendall-Smith, 37, was convicted by a five-member panel of officers last night and sentenced to eight months in jail.

He had argued that the invasion of Iraq was illegal and that he should not therefore be forced to go.

Nick Harvey, defence spokesman for the opposition Liberal Democrats in the UK, said: "Hostility to the war is not just confined to the public at large, many members of the armed forces share their concern and have genuine moral objections to serving in Iraq.

"This case illustrates the legal quagmire that has developed over the Government's decision to go to war. The Government has repeatedly had to hunt around to find legal justification for this war."

Former British Labour MP Tam Dalyell added that the trials of Nazis for war crimes after the Second world War set down limits on which orders should be obeyed.

He said: "Any serviceman has obligations, but a doctrine was laid down at Nuremberg that when orders seem to be a crime against humanity, it was not a sufficient excuse to say simply: 'They were orders and I was doing what I was told'."

Kate Hudson, chairwoman of the Campaign for Nuclear Disarmament, said: "Many people believe the war in Iraq was an illegal war and therefore we would consider he was quite within his rights, and it was indeed commendable he believed it was right to stand up to what he considered to be an illegal instruction to engage in an illegal war.

"We have full sympathy for him and he has our full support."

Among those who believe the 2003 conflict to be unlawful are some of the world's leading experts on international law, who maintain that without a second UN resolution the American and British forces lacked the authority to invade Iraq.

Leading the argument on the other side for the British Government is Lord Goldsmith, the Attorney General.

He told the Prime Minister that UN Security Council Resolution 1441, which found Saddam Hussein to have failed to disarm, could be used to justify war without a second resolution being passed, if it could be shown that Iraq was still in direct breach.

But it is now clear that even Lord Goldsmith had his reservations about the Government's position because of worries that 1441 did not explicitly set out the conditions upon which military action could be taken.

Senior military staff were so concerned about the possibility of war crimes charges that they approached Lord Goldsmith for firmer reassurances of the legal position just weeks before the conflict began.

In the courts lawyers have tried to show that peace protesters committing criminal damage should not be convicted of any crime because they are trying to prevent a greater wrong - an unlawful war.

The effect of the Kendall-Smith ruling on soldiers who take a similar stand in the future could be even graver.

The Armed Forces Bill - now going through the UK Parliament - will impose harsh penalties, including life imprisonment, on soldiers who refuse to take part in military occupations.

A little-known section introduces a new tougher definition of desertion so soldiers who intend to avoid serving in a "military occupation of a foreign country or territory" can be imprisoned for life.

- INDEPENDENT