British Air force doctor imprisoned for refusing third tour in Iraq

Owen Dyer, London

23 April 2006
A Royal Air Force doctor who refused orders to return to Iraq was last week sentenced by a court martial to eight months imprisonment and dismissal from the air force.

Flight lieutenant Malcolm Kendall-Smith, aged 37, told the court martial at Aldershot that in his first two tours in Iraq he came to believe that he was participating in an "imperial campaign of military conquest" by the United States.
During heated exchanges with prosecuting counsel David Perry, Dr Kendall-Smith accused US forces of "acts of aggression in Iraq and systematically applied war crimes," which, he said, "provide a moral equivalent between the US and Nazi Germany."
But a panel of five air force officers found him guilty on five counts of disobeying orders, after the presiding judge dismissed his arguments about the legality of the war.
Telling Dr Kendall-Smith that his understanding of international law was "seriously flawed," judge advocate Jack Bayliss said that no junior officer could be guilty of the crime of prosecuting aggressive war. Making aggressive war, the judge said, "is a crime which can only be committed by those responsible for the policy of a nation at the top of government or of the armed forces."
Dr Kendall-Smith's defence argued that attorney general Lord Goldsmith had raised doubts about the war's legality in 2003, but the judge ruled that the legality of the invasion was irrelevant. "Legal opinion may be divided as to the correctness or otherwise of the advice given by the attorney general," he said. "But when such advice has been given, members of the armed forces cannot go behind it."
"Obedience of orders is at the heart of any disciplined force. Refusal to obey orders means that the force is not a disciplined force but a rabble," added Judge Bayliss.
The judge also accepted the prosecution's argument that by June 2005, when Dr Kendall-Smith refused to deploy to Iraq, the armed forces had the United Nations' authority to be in Iraq and were there at the new government's invitation.
Sentencing Dr Kendall-Smith to eight months' imprisonment, Judge Bayliss told him, "You have, in this court's view, sought to make a martyr of yourself. You have shown a degree of arrogance that is amazing."
Dr Kendall-Smith's lawyer, Justin Hugheston-Roberts, said that his client plans to appeal both conviction and sentence. Should the appeal fail, the sentence will be served in a civilian prison. Dr Kendall-Smith was also ordered to pay £20 000 ({euro}28 910; $35 440) towards his defence costs.
In a statement read by his lawyer, Dr Kendall-Smith said that he would do the same thing again. He added, "I still have two great loves in life—medicine and the Royal Air Force. To take the decision that I did caused me great sadness, but I felt that I had no other choice."

Owen Dyer, London