Skip to content or view mobile version

Home | Mobile | Editorial | Mission | Privacy | About | Contact | Help | Security | Support

A network of individuals, independent and alternative media activists and organisations, offering grassroots, non-corporate, non-commercial coverage of important social and political issues.

RAF officer faces jail over ‘illegal war’

David Leppard, UK SUNDAY TIMES | 20.10.2005 00:18 | World

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.

David Leppard, UK SUNDAY TIMES

Comments

Upcoming Coverage
View and post events
Upcoming Events UK
24th October, London: 2015 London Anarchist Bookfair
2nd - 8th November: Wrexham, Wales, UK & Everywhere: Week of Action Against the North Wales Prison & the Prison Industrial Complex. Cymraeg: Wythnos o Weithredu yn Erbyn Carchar Gogledd Cymru

Ongoing UK
Every Tuesday 6pm-8pm, Yorkshire: Demo/vigil at NSA/NRO Menwith Hill US Spy Base More info: CAAB.

Every Tuesday, UK & worldwide: Counter Terror Tuesdays. Call the US Embassy nearest to you to protest Obama's Terror Tuesdays. More info here

Every day, London: Vigil for Julian Assange outside Ecuadorian Embassy

Parliament Sq Protest: see topic page
Ongoing Global
Rossport, Ireland: see topic page
Israel-Palestine: Israel Indymedia | Palestine Indymedia
Oaxaca: Chiapas Indymedia
Regions
All Regions
Birmingham
Cambridge
Liverpool
London
Oxford
Sheffield
South Coast
Wales
World
Other Local IMCs
Bristol/South West
Nottingham
Scotland
Social Media
You can follow @ukindymedia on indy.im and Twitter. We are working on a Twitter policy. We do not use Facebook, and advise you not to either.
Support Us
We need help paying the bills for hosting this site, please consider supporting us financially.
Other Media Projects
Schnews
Dissident Island Radio
Corporate Watch
Media Lens
VisionOnTV
Earth First! Action Update
Earth First! Action Reports
Topics
All Topics
Afghanistan
Analysis
Animal Liberation
Anti-Nuclear
Anti-militarism
Anti-racism
Bio-technology
Climate Chaos
Culture
Ecology
Education
Energy Crisis
Fracking
Free Spaces
Gender
Globalisation
Health
History
Indymedia
Iraq
Migration
Ocean Defence
Other Press
Palestine
Policing
Public sector cuts
Repression
Social Struggles
Technology
Terror War
Workers' Movements
Zapatista
Major Reports
NATO 2014
G8 2013
Workfare
2011 Census Resistance
Occupy Everywhere
August Riots
Dale Farm
J30 Strike
Flotilla to Gaza
Mayday 2010
Tar Sands
G20 London Summit
University Occupations for Gaza
Guantanamo
Indymedia Server Seizure
COP15 Climate Summit 2009
Carmel Agrexco
G8 Japan 2008
SHAC
Stop Sequani
Stop RWB
Climate Camp 2008
Oaxaca Uprising
Rossport Solidarity
Smash EDO
SOCPA
Past Major Reports
Encrypted Page
You are viewing this page using an encrypted connection. If you bookmark this page or send its address in an email you might want to use the un-encrypted address of this page.
If you recieved a warning about an untrusted root certificate please install the CAcert root certificate, for more information see the security page.

Global IMC Network


www.indymedia.org

Projects
print
radio
satellite tv
video

Africa

Europe
antwerpen
armenia
athens
austria
barcelona
belarus
belgium
belgrade
brussels
bulgaria
calabria
croatia
cyprus
emilia-romagna
estrecho / madiaq
galiza
germany
grenoble
hungary
ireland
istanbul
italy
la plana
liege
liguria
lille
linksunten
lombardia
madrid
malta
marseille
nantes
napoli
netherlands
northern england
nottingham imc
paris/île-de-france
patras
piemonte
poland
portugal
roma
romania
russia
sardegna
scotland
sverige
switzerland
torun
toscana
ukraine
united kingdom
valencia

Latin America
argentina
bolivia
chiapas
chile
chile sur
cmi brasil
cmi sucre
colombia
ecuador
mexico
peru
puerto rico
qollasuyu
rosario
santiago
tijuana
uruguay
valparaiso
venezuela

Oceania
aotearoa
brisbane
burma
darwin
jakarta
manila
melbourne
perth
qc
sydney

South Asia
india


United States
arizona
arkansas
asheville
atlanta
Austin
binghamton
boston
buffalo
chicago
cleveland
colorado
columbus
dc
hawaii
houston
hudson mohawk
kansas city
la
madison
maine
miami
michigan
milwaukee
minneapolis/st. paul
new hampshire
new jersey
new mexico
new orleans
north carolina
north texas
nyc
oklahoma
philadelphia
pittsburgh
portland
richmond
rochester
rogue valley
saint louis
san diego
san francisco
san francisco bay area
santa barbara
santa cruz, ca
sarasota
seattle
tampa bay
united states
urbana-champaign
vermont
western mass
worcester

West Asia
Armenia
Beirut
Israel
Palestine

Topics
biotech

Process
fbi/legal updates
mailing lists
process & imc docs
tech