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RAF Officer Faces Jail - Refuses to Go To Iraq

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Old 16th Oct 2005, 01:15
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RAF Officer Faces Jail - Refuses to Go To Iraq

From the Sunday Times 16 Oct

"RAF officer faces jail over ‘illegal war’

David Leppard



AN RAF officer could be jailed for refusing to serve in Iraq because he believes that the war there was illegal.
Flight-Lieutenant Malcolm Kendall-Smith is to be court-martialled for “refusing to obey a lawful command” after he told his commanding officer that he would not go to Basra.

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

Kendall-Smith, 37, unit medical officer for RAF Kinloss in Morayshire, has been decorated for his role in support of military operations in Afghanistan and for two previous tours in support of the RAF in Iraq.

However, after studying the legal position, including the advice of Lord Goldsmith, the attorney-general, he decided this year that the war was unlawful and it would therefore be wrong for him to return.

Justin Hugheston-Roberts, his solicitor, said preliminary court martial proceedings were expected to begin this year. He said that Kendall-Smith did not object in principle to serving in any war, provided it was legal.

“This is the first case of its kind involving Iraq. My client has considered this very carefully and in great depth. He is not arguing that he is a conscientious objector. He is arguing that the war is manifestly unlawful,” he said.

Kendall-Smith, as a serving officer, is barred by military regulations from talking to the media. A colleague said: “Malcolm joined the RAF out of a spirit of idealism. He felt he wanted to do something good, to make a difference. It was good old battle of Britain stuff, helping the good guys fight the fascists.

“When he first went to the Gulf in 2003, his awareness of the legal position was far less than it is now. He is now in no doubt that the war was illegal and that the government has spun its position on the evidence. He takes the view that this is something which is worth going to prison for.

“When he explained to his commanding officer that he thought the war was unlawful, he was told that the attorney-general had declared it legal. Malcolm simply replied that the attorney-general had said one thing, then later said more or less completely the opposite.”

A central part of Kendall-Smith’s legal case will be the manual of RAF law which states that a serving officer is justified in refusing to obey a command if it is illegal. His lawyers will also argue that his commission, granted by the Queen, requires him to act according to “the rules and discipline of war”.

International lawyers have argued that there was no legal justification for invading Iraq because Britain and America failed to wait for the United Nations to pass a second resolution specifically sanctioning military force.

Kendall-Smith was born in Australia but brought up in New Zealand where he studied to become a doctor. He has dual British-New Zealand citizenship and was commissioned as an officer in 2000. He earns about £40,000 a year.

He is posted with a staff of four at the regional medical centre at Kinloss, which employs more than 3,000 military personnel and is home to the Nimrod Maritime Reconnaissance Aircraft fleet.

He was suspended on full pay after being interviewed by the Royal Military Police in June. On October 5 he was charged after being served with court martial papers by the RAF prosecuting authority in Innsworth, Gloucestershire.

The Ministry of Defence said: “An RAF officer is due to appear before a general court martial on a date and location yet to be confirmed. The officer will be charged with four counts of disobeying a lawful command. It would be inappropriate to give further details.”

Hugheston-Roberts said: “We will be seeking a judge’s ruling on a huge volume of jurisprudence as to the legality of the armed conflict.”

The court martial will be heard at a military base by a senior judge and a board of at least five high-ranking officers, with an air commodore as president. There will be no jury and the case will be heard on a military base. The RAF will pay his defence costs but the reserves the right to reclaim the money if he is convicted.

Two years ago Leading Aircraftsman Mohisin Khan, a Muslim reservist from Ipswich, was disciplined after he refused to serve in Iraq because of his religious beliefs. "



This ones going to be interesting then!! How many folks will be volunteering to be officer under instruction on this one?

The consequence of this chap continuing through the courts and setting precedence in Brussels would be very interesting. I think it might be dropped somehow.

A central part of Kendall-Smith’s legal case will be the manual of RAF law which states that a serving officer is justified in refusing to obey a command if it is illegal. His lawyers will also argue that his commission, granted by the Queen, requires him to act according to “the rules and discipline of war”

International lawyers have argued that there was no legal justification for invading Iraq because Britain and America failed to wait for the United Nations to pass a second resolution specifically sanctioning military force..

Any Comments??

Last edited by Tigs2; 16th Oct 2005 at 01:25.
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Old 16th Oct 2005, 07:02
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Rock on!!!!

Docs are few and far between..... I think we should pull out of any possible war/combat/hostile area until we can afford to bring them back on time and get serco to provide medical cover... (Which I know will never happen).
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Old 16th Oct 2005, 07:57
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OK here's a thought which the crewroom lawyers might like to argue around.

The original invasion of Iraq may or may not have been illegal.

However - we are no longer at 'war' as we are now in support of the recognisied Iraqi administration.

The MO has been given an order to deploy and administer medical services to British Servicemen - he is not prosecuting a war of any kind - legal or illegal.

Therefore the order to deploy is legal and must be complied with.

Points! questions?

And for the record: Trench dodging is trench dodging no matter how many lawyers you have on your side.
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Old 16th Oct 2005, 08:15
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We are not at war now so the legality of it is not relevant to his case.

And a posting order can scarcely be construed as illegal.

His action, in refusing the order to go to Iraq, is intolerable and indefensible, however much one may sympathise with his views of the legality of the second Gulf War and our reasons for being there now. He volunteered to serve his country and has been well rewarded for doing so. Soldiers (and I include sailors and airmen) cannot cherry-pick the orders they will obey or we may as well contractorise the whole of our Armed Services.

If he feels that strongly, good for him but he should have resigned his commission. He could then have gone public. There will be no winners from this. He has disgraced us all.
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Old 16th Oct 2005, 09:31
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However, NuLabour lawyers are quick to analyse and pick over Servicemen's actions committed in the heat of their illegal war from the quiet comfort of a Fiscal's office, and to bring charges against the men who serve Queen and Country.

The 'Nuremberg Defence' is denied to those Servicemen and, I have to say, this chap's action looks to me like a principled stand. By bringing lawyers onto the battlefield, the Government have only themselves to blame. It was only a matter of time before individual Servicemen started to think:

"If the Govt lawyers will happily crap all over me if I shoot back while I'm under a hail of petrol bombs / being fired upon, then why should I put myself at risk from lawyers by going to a war that many lawyers say is illegal? Under the current regime, I have an absolute duty not to obey an unlawful order."

Last edited by An Teallach; 16th Oct 2005 at 09:46.
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Old 16th Oct 2005, 10:03
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Yes but what order is he failing to obey and is that order legal?

I believe the order to deploy to Basra to be legal.

If the individual wishes to disregard he should resign/PVR on a matter of principle and make his stand in that way. This smacks of the opponents of military engagement using him to publicise their point - no matter how valid their point this method of publicising it damages us all.
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Old 16th Oct 2005, 10:08
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The doc in question appears to be looking for a fight over the Iraq issue.

The verdict of the court-martial is a foregone conclusion for a number of reasons but primarily because there is a UN resolution regarding the rebuilding of Iraq and a continued military presence which is permitted by the interim Iraqi government. However, his lawyers will be looking towards the House of Lords and Strasbourg for the real action. I doubt this action will achieve anything - if the doc has a moral objection towards UK foreign and military policy then he should resign his commission - he is two years too late to use the illegal war argument.

However, if there was another war (against a certain neighbouring country beginning with "I" for example) following a similar pattern to the Iraq invasion, then a refusal to obey an illegal order to participate may have a significant chance of success. It is clear from the evidence to Hutton and Butler that the Iraq invasion (no UN resolution, lies over WMD) was emphatically not legal and the leaked advice of the Attorney General blew apart any remaining credibility of the case made for war. In the unlikely event of such military action against Iran, I can forsee quite a few cases of service personnel refusing to participate on the grounds that there is no legal authority for military action and that any such action is in breach of international law, and that orders arising from such operations are likely to be illegal. Back in 2003, no one really thought that HMG would lie over an illegal war but we know better now.
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Old 16th Oct 2005, 10:20
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Clockwork Mouse, you say,

"Soldiers (and I include sailors and airmen) cannot cherry-pick the orders they will obey".

NO, NO, NO and NO! A serviceman is OBLIGED to ensure that an order is legal before he carries it out. Mindless obediance is something that sent the Germans down the wrong route a few years ago. If I felt I truly served in a Service that did not wish its officers and men to be independent thinking human beings, my resignation would have been submitted a long time ago.

I make no judgement on the merits of the case involved here - although it is clear that the Government cannot afford to lose it. But I disagree with Impinger - Kendall-Smith is right to act the way he has, while still remaining an officer. He appears to be acting on principle, so why should he relinquish the Queen's uniform while he persues what he (apparently) believes is right?
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Old 16th Oct 2005, 10:31
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AT

I support your disgust at the way our troops are now being forced to include possible legal action by their own side in their tactical threat assessment.

However, that situation is not relevant to this officer's case. Despite the on-going violence we are not now at war. He cannot plead illegality in respect of his posting or detachment order.

He has decided to pick a political fight with the system. He has chosen the wrong fight and in the process has done no-one, himself included, any favours. He has left the RAF no other choice but to prosecute him with all the attendant damage and bad publicity for us all. If publicity for his views is what he wants, why on earth didn't he resign first before going public? He is a commissioned officer in the RAF but has has not behaved appropriately. He has shown himself to be miguided and disloyal and must now face the inevitable consequences.

I'm afraid he must go.

RLE

This is not a question of blind obedience to illegal orders. And he has not picked a fight with the Government, even if that was his misguided intention. He has taken on the RAF, and for all our sakes he cannot and will not win. The government is probably laughing its collective socks off.

Tim Collins handled it correctly.
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Old 16th Oct 2005, 10:57
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Angry

Perhaps I have missed something here, but you lot seem to be arguing the toss over points of law. Who cares about that cr@p right now? The bottom line is that our guys and girls are getting shot at, wounded and killed on a daily basis. I joined up along time ago now with dreams of the Battle of Briatin, serving my country etc. Quite often it seems that many people in my country aren't that grateful any more, but what makes it all worthwhile are the friends and colleagues that I work with. I lost a lot of my idealism a long time ago but I replaced it with a loyalty to the common cause of looking after each other. I hope that this is the same for most people out there. I am still undecided about the rights and wrongs of Tony's war but I can tell you that plays little on my mind when I go there (Iraq) every year. I am trying to do my best for the people who are in the dwang - our troops.
This guy is a disgrace to his country, his uniform, his service and more important than all of that he is letting down those that need him most - his comrades. What he is doing is unforgiveable, politically motivated, cynical and selfish. I am quite happy to tell him that to his face if he wishes. He can be a big hero going to Colchester for a few weeks so that the Guardian readers can crow, but he is only giving the bird to the other people who have the sense and the understanding to get on with the job and not whine about it.
I don't have much time for Tony Blair, but guess what most of the other guys and girls would rather not be there either. Because of this idiot someone else has to go, or do back to back tours, someone elses husband/wife/daughter/son has to do more time in the line of fire. This man is supposed to be a medical professional but is effectively refusing to treat British troops who may need his help. His attitude that he seems to be making a 'stand' for the silent majority is patronising and selfish in the extreme.
Stop dancing around the issue and tell it how it is - think about your friends and colleagues out there who are on a daily basis struggling with a very difficult and dangerous situation and then take a look at this immature self-publicist who should never have got past the interview stage for joining the military. I am so angry about this. Why should he even still get paid? Does he not realise that it isn't Tony B that is relying on him, its his peers? This 'stand' will not affect anything - Tony B and his friends could care less. It hurts all of the rest of us.
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Old 16th Oct 2005, 11:03
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Clockwork

Wasn't one good officer charged with "Negligently performing a duty" or some such?

I would have thought that, standing the legality / illegality of the invasion itself, the current situation to my mind amounts to criminal negligence on the part of those who ordered the war. To invade a country having not the first idea what you are going to do with it once you've conquered it to my mind amounts to criminal negligence.

Perhaps this chap will argue that he did not want to become an accomplice in the furthering of such criminal negligence?

BTW, I'm not saying here that I would have done what he's done. However, I can see where he's coming from.
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Old 16th Oct 2005, 11:09
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In my opinion this guy is using the RAF to play politics. Since the RAF (Should) be non-political, then I find his behavior totally inappropriate. Why doesn't he resign his commission and lobby his local MP if he feels so strongly?
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Old 16th Oct 2005, 12:14
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It's not just a matter of principle and doesn't require resignation.
Whether you agree or disagree with him, he is perfectly entitled to question the legality of his orders.

Once it's pointed out that the order is legal then he is in the wrong. The outcome should be interesting - legally not at war, refusal to obey a legal order - reposted into theatre - refusal - what then?
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Old 16th Oct 2005, 12:19
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Once it's pointed out that the order is legal then he is in the wrong. The outcome should be interesting - legally not at war, refusal to obey a legal order - reposted into theatre - refusal - what then?
Despite my legal musings above, I'd have thought the answer was obvious: Dismissal, possibly followed by prison.
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Old 16th Oct 2005, 12:48
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Siegfried Sassoon criticised a war that he felt was being unjustly prolonged by the politicians without feeling the need to resign his commission (and instead was labelled as suffering from shellshock and bundled off to Craiglockhart). Yet who today would say that his stance was reprehensible?

I appreciate Sassoon was prepared (and keen) to serve back at the front but my point is that his vocal anti-war protests were made while he was still a serving officer.
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Old 16th Oct 2005, 16:16
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I suspect this bloke will be dismissed as quickly and as painlessly as possible to save further embarrassment. Jail time is highly unlikely and, no matter what the officers on the court-marital believe, the word from on high will be "bury this quickly".

Siegfried Sassoon refined his anti-war stance in later life, after the Second World War, and concluded that he may have been wrong.

With regard to the officer at the source of the current controversy, I completely agree with his views regarding the legality of the 2003 outing but disagree with his decision to refuse this order as the order is legitimate because of the post-war UN resolution and the position of the Iraqi government.
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Old 16th Oct 2005, 16:33
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Unbelievable, utterly unbelievable. Hang him for treason at Traitors Gate.

No place in the Armed Forces for this. Wouldn't have happened in my day. Would have shot them. If you can't take the heat then you shoudn't have joined and sworn allegence.

I'm just sitting on the fence of course as I might just get a bit mad at this if I'm not too careful.

Grrrr
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Old 16th Oct 2005, 16:58
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If he does not want to go and fight what he considers to be an 'illegal' war, that's OK with me. He can go and dig latrines for those who are prepared to do their duty

Failing that, he can be shot at dawn and buried in an unmarked grave. He is a traitor to Queen and Country


CC
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Old 16th Oct 2005, 17:20
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Angel

God listen to you lot and you wonder why you are so reviled in Civvy Street!!

It's his conscience and it's his choice, like others before him who have made a brave stand he will pay a price. Luckily for him, unlike Kelly it won’t be with his life!

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Old 16th Oct 2005, 17:31
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Could'nt agree with you more Gorilla, his choice, his decision and you have to admire the courage of his conviction. I happen to think he is wrong but fully defend his right to challenge in this fashion.

Traitor/hang him/shoot him/dig latrines etc Pathetic, absolutely pathetic and "grown up's" should know better.

all spelling mistakes are "df" alcohol induced
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