RAF Officer Faces Jail - Refuses to Go To Iraq
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Twonston Pickle, I don't see how politics can remain out of this trial. The Officers on the CM are being asked to decide 3 things:
1) Was the man given an order? Yes
2) Did he carry the order out? No
3) Was the order lawful? Hmmm....
Point 3 seems to me to be the crux of the issue - we swear to carry out "all lawful orders" (not "all orders") when we are attested.
I can't see how they can consider the case without considering the legality of the order. And in so doing, they are being asked to decide on whether what our chain of command has told us from 2003 (from the PM and CDS down) is in fact correct, i.e. that our continued presence/occupation (depending on your point of view) is lawful.
Those on the CM are being asked to judge their superiors (including our political leaders). Therefore who in their right mind thinks that the outcome of the CM is not a foregone conclusion? How on earth can the trial be seen to be impartial? (let alone actually be so...)
The political and military ramifications of a not guilty verdict are potentially massive. Because if they decide that the order wasn't legal, do we then have to withdraw all our forces from Iraq unilaterally? Certainly I cannot see how we would possibly get anyone to serve in Iraq again. How many of us that have been over there would like to go back to that Godforsaken country if we were given the choice? Not me, for one. Unless they offered the same rates of pay as Blackwater Consulting...
I think the outcome of the trial is a foregone conclusion because of the potential consequences if he is found not guilty, but I guess the man in the dock will wait for the trial to leave the hands of the military, and appeal his conviction in the Lords/Europe.
Whatever the outcome of the case, I admire the man for his courage in making a stand for what he believes in.
SBW
1) Was the man given an order? Yes
2) Did he carry the order out? No
3) Was the order lawful? Hmmm....
Point 3 seems to me to be the crux of the issue - we swear to carry out "all lawful orders" (not "all orders") when we are attested.
I can't see how they can consider the case without considering the legality of the order. And in so doing, they are being asked to decide on whether what our chain of command has told us from 2003 (from the PM and CDS down) is in fact correct, i.e. that our continued presence/occupation (depending on your point of view) is lawful.
Those on the CM are being asked to judge their superiors (including our political leaders). Therefore who in their right mind thinks that the outcome of the CM is not a foregone conclusion? How on earth can the trial be seen to be impartial? (let alone actually be so...)
The political and military ramifications of a not guilty verdict are potentially massive. Because if they decide that the order wasn't legal, do we then have to withdraw all our forces from Iraq unilaterally? Certainly I cannot see how we would possibly get anyone to serve in Iraq again. How many of us that have been over there would like to go back to that Godforsaken country if we were given the choice? Not me, for one. Unless they offered the same rates of pay as Blackwater Consulting...
I think the outcome of the trial is a foregone conclusion because of the potential consequences if he is found not guilty, but I guess the man in the dock will wait for the trial to leave the hands of the military, and appeal his conviction in the Lords/Europe.
Whatever the outcome of the case, I admire the man for his courage in making a stand for what he believes in.
SBW
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SBW wrote:
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The political and military ramifications of a not guilty verdict are potentially massive. Because if they decide that the order wasn't legal, do we then have to withdraw all our forces from Iraq unilaterally? Certainly I cannot see how we would possibly get anyone to serve in Iraq again.
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You've hit the nail on the head. However, as stated earlier, I think that the answers to your questions at the GCM will be as follows:
Q1. Was the Officer given an order? Yes.
Q2. Did he carry the order out? No.
Q3. Was the order legal? Yes, because UNSCR 1546 mandates the position of UK and allied forces.
Therefore, guilty as charged.
However: if these questions were asked before the passage UNSCR 1546 - ie, anytime between commencement of operations and 08 Jun 2004 - then the answers would be more difficult, because they would have to consider the international legal position in consideration of the legality of the orders.
Irrespective of the result in this case, in any future operation, this case has underlined that if the war is not legal - as we've seen, either self-defence, UN Security Council Authorisation, or humanitarian intervention to stop genocide and crimes against humanity, then I believe the orders will be to commit the crime of aggression, and therefore would be illegal.
So, we agree that everyone should always follow all legal orders: but that we're obligated to refuse illegal ones; and what this case has highlighted is a small, obscure and developing corner of international law that needs to be addressed - and soon.
S41
---------------------------
The political and military ramifications of a not guilty verdict are potentially massive. Because if they decide that the order wasn't legal, do we then have to withdraw all our forces from Iraq unilaterally? Certainly I cannot see how we would possibly get anyone to serve in Iraq again.
---------------------------
You've hit the nail on the head. However, as stated earlier, I think that the answers to your questions at the GCM will be as follows:
Q1. Was the Officer given an order? Yes.
Q2. Did he carry the order out? No.
Q3. Was the order legal? Yes, because UNSCR 1546 mandates the position of UK and allied forces.
Therefore, guilty as charged.
However: if these questions were asked before the passage UNSCR 1546 - ie, anytime between commencement of operations and 08 Jun 2004 - then the answers would be more difficult, because they would have to consider the international legal position in consideration of the legality of the orders.
Irrespective of the result in this case, in any future operation, this case has underlined that if the war is not legal - as we've seen, either self-defence, UN Security Council Authorisation, or humanitarian intervention to stop genocide and crimes against humanity, then I believe the orders will be to commit the crime of aggression, and therefore would be illegal.
So, we agree that everyone should always follow all legal orders: but that we're obligated to refuse illegal ones; and what this case has highlighted is a small, obscure and developing corner of international law that needs to be addressed - and soon.
S41
Ecce Homo! Loquitur...
In which case the operations in the Balkans were an illegal order and members should refuse to obey any order which involves similar operations?
If, for example, another case of genocide such as Rwanda occurred, the majority of the U.N., security council and OAS pleaded for action, but the Chinese used their veto because it "was an internal security matter", then it would be illegal and the members of the armed forces would be entitled to disobey any order to take part?
A few years ago I saw a list of the number of "actions" the UK had taken part in since 1947, Borneo, Indonesian confrontation etc, it was over 50 long. None were approved by the UN, (the USSR or China would have vetoed all of them), none were declared as a war.
If, for example, another case of genocide such as Rwanda occurred, the majority of the U.N., security council and OAS pleaded for action, but the Chinese used their veto because it "was an internal security matter", then it would be illegal and the members of the armed forces would be entitled to disobey any order to take part?
A few years ago I saw a list of the number of "actions" the UK had taken part in since 1947, Borneo, Indonesian confrontation etc, it was over 50 long. None were approved by the UN, (the USSR or China would have vetoed all of them), none were declared as a war.
Last edited by ORAC; 27th Oct 2005 at 15:02.
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ORAC, you say:
If, for example, another case of genocide such as Rwanda occurred, the majority of the U.N., security council and OAS pleaded for action, but the Chinese used their veto because it "was an internal security matter", then it would be illegal and the members of the armed forces would be entitled to disobey any order to take part?
It didn't happen like that at all. Suggest you click on google and type in Rwanda and the UN. All will be properly revealed.
NC43
ORAC, you say:
If, for example, another case of genocide such as Rwanda occurred, the majority of the U.N., security council and OAS pleaded for action, but the Chinese used their veto because it "was an internal security matter", then it would be illegal and the members of the armed forces would be entitled to disobey any order to take part?
It didn't happen like that at all. Suggest you click on google and type in Rwanda and the UN. All will be properly revealed.
NC43
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ORAC,
This highlights the point that satisfying one of these three requirements is not a high hurdle to cross: Former Yugoslavia was covered by a slew of UN Security Council resolutions from 1991 onwards, (e.g. IFOR covered by UNSCR 1031 of 1995 http://www.un.org/Docs/scres/1995/scres95.htm; Kosovo, UNSCR 1244 of 10 Jun 99, http://www.un.org/Docs/scres/1999/sc99.htm). East Timor by UNSCR 1262 (27 Aug 99) and 1264 (15 Sep 99) amongst others.)
Sierra Leone was a case of coming to the aid of a sovereign government, and in any event would have been legal to stop the crimes against humanity being perpetrated by the RUF.
As Kosovo shows, if the Security Council is deadlocked, humanitarian intervention was a legal - though controversial - basis for intervention. Happy to provide more detail if reqd.
As a result, UK operations since 1990 (GW1, Former Yugoslavia and Sierra Leone) have been clearly legal - except GW2.
S41
This highlights the point that satisfying one of these three requirements is not a high hurdle to cross: Former Yugoslavia was covered by a slew of UN Security Council resolutions from 1991 onwards, (e.g. IFOR covered by UNSCR 1031 of 1995 http://www.un.org/Docs/scres/1995/scres95.htm; Kosovo, UNSCR 1244 of 10 Jun 99, http://www.un.org/Docs/scres/1999/sc99.htm). East Timor by UNSCR 1262 (27 Aug 99) and 1264 (15 Sep 99) amongst others.)
Sierra Leone was a case of coming to the aid of a sovereign government, and in any event would have been legal to stop the crimes against humanity being perpetrated by the RUF.
As Kosovo shows, if the Security Council is deadlocked, humanitarian intervention was a legal - though controversial - basis for intervention. Happy to provide more detail if reqd.
As a result, UK operations since 1990 (GW1, Former Yugoslavia and Sierra Leone) have been clearly legal - except GW2.
S41
Ecce Homo! Loquitur...
The Times:
An RAF doctor who has been charged with disobeying orders to serve in Iraq is at the heart of a legal test case over the validity of the war. Flight Lieutenant Malcolm Kendall-Smith, 37, whose court martial is expected to start next March on four charges of “disobeying a lawful command”, said through his lawyer that he believed the decision to go to war in Iraq was “manifestly illegal”.
At a private hearing at Bulford Camp in Wiltshire, Justin Hugheston-Roberts, the RAF doctor’s lawyer, said there would be a long legal argument about the war’s legality before the court martial was opened.
Guardian:
.......Mr Hugheston-Roberts said the case had been adjourned until the first week of December for another private preliminary hearing. He added: "There will be a very lengthy legal argument taking place some time in March 2006. That hearing will be open to the public. That will precede the trial proper." Issues such as the legality of the Iraq war would arise at the hearing in March.......
An RAF doctor who has been charged with disobeying orders to serve in Iraq is at the heart of a legal test case over the validity of the war. Flight Lieutenant Malcolm Kendall-Smith, 37, whose court martial is expected to start next March on four charges of “disobeying a lawful command”, said through his lawyer that he believed the decision to go to war in Iraq was “manifestly illegal”.
At a private hearing at Bulford Camp in Wiltshire, Justin Hugheston-Roberts, the RAF doctor’s lawyer, said there would be a long legal argument about the war’s legality before the court martial was opened.
Guardian:
.......Mr Hugheston-Roberts said the case had been adjourned until the first week of December for another private preliminary hearing. He added: "There will be a very lengthy legal argument taking place some time in March 2006. That hearing will be open to the public. That will precede the trial proper." Issues such as the legality of the Iraq war would arise at the hearing in March.......
Last edited by ORAC; 28th Oct 2005 at 06:31.
Short Blunt Shock
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The 'legality' of GW2 is totally irrelevant to this case. The bottom line here is that this disgrace of an individual was ordered to deploy to Basrah. There cannot possibly be anything 'illegal' about getting on an aircraft and flying into theatre. Once there, IF the war was illegal, and IF he recieved orders to partake in some capacity, he may then have argued about the legality of THOSE orders, NOT the initial order to deploy (which was perfectly legal regardless of circumstance). This view is further reinforced by the fact that this chimp is a NON COMBATANT, and as such could not under any circumstances be ordered to carry out a 'crime of aggression'.
The various applicable conventions, treaties and statutes lay out specifically what constitutes 'legal' and 'illegal' orders during the conduct of warfare - simply arriving in a well-established and ongoing theatre of operations cannot possibly constitute an 'illegal act'.
If you are of the opinion that the war was 'illegal', it is just that - an OPINION, NOT a legal fact. There exists a legal justification for the war in UNSCRs 678 & 687. Some are of the OPINION that this justification may be suspect. The only body that can rule effectively on this is the UNSC - they haven't, so the justification remains. (forget the ICC - they have no jurisdiction over the USA, so any ruling from them would be largely meaningless). One could even argue that UNSCR 1546 lent some legitimacy to the view re. 678 / 687.
My point is this - until any ruling to the contrary, any opinion about the ongoing validity of 678 / 687 is simply that - an OPINION. Given the amount of political furore surrounding the issue, one can quite easily argue it is a POLITICAL OPINION. We are here to serve the Crown, not T. Blair esq. The Crown is an apolitical body, which requires us to serve with disregard to our own personal politics. This medical officer has refused a deployment on the basis of his own political opinion of the legality of the war, something he cannot justify. He will quite rightly be strung up by his b0ll0cks for it.
16B
The various applicable conventions, treaties and statutes lay out specifically what constitutes 'legal' and 'illegal' orders during the conduct of warfare - simply arriving in a well-established and ongoing theatre of operations cannot possibly constitute an 'illegal act'.
If you are of the opinion that the war was 'illegal', it is just that - an OPINION, NOT a legal fact. There exists a legal justification for the war in UNSCRs 678 & 687. Some are of the OPINION that this justification may be suspect. The only body that can rule effectively on this is the UNSC - they haven't, so the justification remains. (forget the ICC - they have no jurisdiction over the USA, so any ruling from them would be largely meaningless). One could even argue that UNSCR 1546 lent some legitimacy to the view re. 678 / 687.
My point is this - until any ruling to the contrary, any opinion about the ongoing validity of 678 / 687 is simply that - an OPINION. Given the amount of political furore surrounding the issue, one can quite easily argue it is a POLITICAL OPINION. We are here to serve the Crown, not T. Blair esq. The Crown is an apolitical body, which requires us to serve with disregard to our own personal politics. This medical officer has refused a deployment on the basis of his own political opinion of the legality of the war, something he cannot justify. He will quite rightly be strung up by his b0ll0cks for it.
16B
16B, if it was that cut and dried, his defending lawyer would have told him he didn't have a cat in hell's chance. As he obviously hasn't, there are clearly some who do not view the case as you do - and perhaps consider the legality of the UK's involvement in the whole GW2 affair as being directly significant.
Short Blunt Shock
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But then again, BEags, lawyers will often take on any case regardless of its merits - many may even see a weak case as a good professional challenge - since they get paid regardless of outcome.
He has no case. Period. But his brief still gets his fat slice of pie. Only blind political ideology could see it any different. But ideology, opinions (even legal ones), or even morality do not make the law.
16B
He has no case. Period. But his brief still gets his fat slice of pie. Only blind political ideology could see it any different. But ideology, opinions (even legal ones), or even morality do not make the law.
16B
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For the record:
If any brown envelope pops through my door with regard to any of the Dear Leader's intended military ventures (admittedly not likely) then I will engage a lawyer to send a response to MoD stating I will not be obeying the mobilisation order as it is illegal, and will continue to disobey it unless:
a. The military undertaking is legal under international law (ie UN resolution or self defence);
b. The Attorney General has declared military action to be lawful;
c. The full decision of the Attorney General has been made public;
d. Parliament has voted to authorise military action after considering the above items.
There are precedents (voluntary and involuntary!) for all the above items. So, Bliar, you can send your ugly missus (in her armoured car) and your wastrel son before knocking on my door!
If any brown envelope pops through my door with regard to any of the Dear Leader's intended military ventures (admittedly not likely) then I will engage a lawyer to send a response to MoD stating I will not be obeying the mobilisation order as it is illegal, and will continue to disobey it unless:
a. The military undertaking is legal under international law (ie UN resolution or self defence);
b. The Attorney General has declared military action to be lawful;
c. The full decision of the Attorney General has been made public;
d. Parliament has voted to authorise military action after considering the above items.
There are precedents (voluntary and involuntary!) for all the above items. So, Bliar, you can send your ugly missus (in her armoured car) and your wastrel son before knocking on my door!
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JtD
Splendid stuff. You know how unlikely a brown envelope is likely to be popping through your door so you can be as stroppy and as full of crap as you like. We all know that were it to happen you would be doing the decent thing.
16B Agree with everything you said, but next time old lad, don't sugercoat it, tell it like it really is with regard to the apology for a doctor.
NC43
Splendid stuff. You know how unlikely a brown envelope is likely to be popping through your door so you can be as stroppy and as full of crap as you like. We all know that were it to happen you would be doing the decent thing.
16B Agree with everything you said, but next time old lad, don't sugercoat it, tell it like it really is with regard to the apology for a doctor.
NC43
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Sorry for the very, very late entry to the thread but one point. It has been stated time and again that prevention of serious crimes against humanity/genocide is a legal reason for going to war.
Now I don't pretend to be an expert on middle Easern affairs but wasn't Saddam quite a nasty bloke engaged in some fairly nasty goings on? Wouldn't that make the war legal and thus not give the accused even a stump to stand on, let alone a whle leg.
End of the day we have this moral point plus the UNSCR lending legitimacy to our involvement, he was given a direct order, he refused to obey said order, he's guilty.
Michael Edic QC
Now I don't pretend to be an expert on middle Easern affairs but wasn't Saddam quite a nasty bloke engaged in some fairly nasty goings on? Wouldn't that make the war legal and thus not give the accused even a stump to stand on, let alone a whle leg.
End of the day we have this moral point plus the UNSCR lending legitimacy to our involvement, he was given a direct order, he refused to obey said order, he's guilty.
Michael Edic QC
In which case, why do we hear nothing about taking similar action against the tyrrany of Mugabe?
Is it because there's no oil - or because there are no Americans to help us?
When some pratt from PJHQ once came to visit us and tried to explain what we were doing in Sierra Leone, he was a bit stumped when asked about the situation in Southern Rhodesia.....
Is it because there's no oil - or because there are no Americans to help us?
When some pratt from PJHQ once came to visit us and tried to explain what we were doing in Sierra Leone, he was a bit stumped when asked about the situation in Southern Rhodesia.....
Thread Starter
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Michael
But this was not the reason we were given, we were sold down the swanny with a pack of lies and so far well over 2300 soldiers, sailors and Airmen have died and god only knows how many have been injured (huge amounts i would guess), let alone the 10s or 100s of thousands of Iraqi civilians.
If we take the moral highground and invade because of crimes against humanity and genocide then why have we left the people of Zimbabwee to suffer so much. Answer, - it has got nothing we want. The country was once known as the bread basket of africa. The farms are now in ruins. Wait another 2 years for the largest famine and starvation that africa has ever witnessed. Yet we do nothing and Mugabe is
BEags - couldnt agree more!
It has been stated time and again that prevention of serious crimes against humanity/genocide is a legal reason for going to war.
If we take the moral highground and invade because of crimes against humanity and genocide then why have we left the people of Zimbabwee to suffer so much. Answer, - it has got nothing we want. The country was once known as the bread basket of africa. The farms are now in ruins. Wait another 2 years for the largest famine and starvation that africa has ever witnessed. Yet we do nothing and Mugabe is
quite a nasty bloke engaged in some fairly nasty goings on
BEags - couldnt agree more!
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Please don't get me wrong, I agree that the way the whole affair was handled by the government was far from ideal, equally I agree with Beags that there are other equally tyrannical regimes that we haven't invaded that we probably have an equally strong moral obligation to do something about.
Neither of these change the basic premise of my point though, I think the prevention of crimes against humanity provided a legal reason for the war therefore this doctor can't defend himself.
Whether or not we made the correct tactical/political decision by embroiling ourselves is I think a seperate matter.
Mike
Neither of these change the basic premise of my point though, I think the prevention of crimes against humanity provided a legal reason for the war therefore this doctor can't defend himself.
Whether or not we made the correct tactical/political decision by embroiling ourselves is I think a seperate matter.
Mike
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We haven't become involved in Zimbabwe because we would be setting ourselves against black people - and Blair is so terrified of being accused of the greatest crime committable in his cosy, metropolitan, PC, Islingtonite little world - being a 'Racist'. We are white, and they are black. Despite the fact that the oppressed minority in that country are white, on planet Blair, this makes 'them' automatically right and 'us' automatically wrong. Mugabe shouts 'Racist!' and Blair jumps out of his skin and runs a mile, refusing to even grant refugee status to these poor beleaugered white folk.
Sorry, a bit off-topic.
16B
Sorry, a bit off-topic.
16B
16 blades,
Off topic and totally wrong!
What colur do you think your average Arab is, white????????
Off topic and totally wrong!
What colur do you think your average Arab is, white????????