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Royal Airforce NZ Doctor Says No to Iraq War

Comment by Larry Ross, October 27, 2005

It's the best news for a long time that an NZ doctor, with a postgraduate qualification in philosophy, has refused further service with the UK airforce in Iraq because he thinks it is illegal. He is a credit to his parents.

New Zealand should be proud that a New Zealander is bringing the first court case in Britain to question the constitutional legality of the Iraq invasion.

His main legal spokesman, Justin Hugheston-Roberts, says "the ramifications of the case were "quite awesome"".
Some of these are:

1. Establishing in court that the war is illegal, because of a multitude of reasons, reflects very badly on all governments involved in the US-named 'Coalition of the Willing'.
2. Most involved military men will question why they are endangering their own lives for an illegal invasion, continuing war and occupation. Some will conclude that if what they are doing is illegal, they will stop doing it and get out of Iraq.
   
3. Thousands of servicemen (and perhaps over 100,000 Iraqis), have been killed fighting for a pre-9/11 planned war based on a litany of lies. Now if military men learn from a court case that it is judged to be illegal, with reasons spelled out as to why it is illegal, they will be very angry. They will realise they have been conned and that Tony Blair lied to them and to every British citizen. I would think that the effect on Blair's political career would be destructive.
   
4. The effect on US military men and the US public would help swell the rising chorus of American dissent about the war. More US soldiers would quit the war, and Bush would be exposed again as one of history's greatest liars.
   
5. An honest trial could be an important step in ending the US-UK occupation of Iraq.
   
6. There are huge profits being made by many people out of this war. These could end, as could further US-UK war plans for Iran, Syria etc if the coalition of the willing has to leave Iraq.

These are some of the reasons I think the case will never go to court. If it does, I doubt if a just verdict will be given. Malcolm Kendall-Smith may be discharged from the UK airforce, thereby allowing the trial to be cancelled.

Or it may be claimed that he committed suicide, because of the strain. This would be like the UK defence intelligence analyst, who allegedly committed suicide in 2003, just before he was to reveal more about the illegal and deceitful aspects of the Tony Blair-led UK entry into the Iraq war.

Malcolm Kendall-Smith seems like a very talented, promising, courageous, idealistic young man with a great future.

Larry Ross

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NZer to argue UK Iraq involvement illegal - from Stuff.

http://www.stuff.co.nz/stuff/0,2106,3455966a12,00.html

26 October 2005

Two New Zealanders will effectively put Britain's involvement in the United States-led "coalition of the willing" in Iraq on trial later this week.

A British court martial of New Zealander Flight Lieutenant Malcolm Kendall-Smith will begin on Thursday (local time), when he will become the first British officer to face criminal charges for challenging the legality of the Iraq war.

But the Royal Air Force (RAF) doctor - who is alleged to have refused to return to Iraq because of his belief that the invasion of the Middle Eastern country was illegal - and his New Zealand-educated Queen's Counsel, Philip Sapsford, are expected to take the fight to the heart of Britain's Government.

Mr Sapsford said a key issue in the case will be whether Britain formally declared war on Iraq, and whether the ubsequent actions of British soldiers were outside the legal confines of an act of war.

Flt Lt Kendall-Smith has already served in Afghanistan and on two tours of duty in Iraq but has refused to travel to the troubled Middle Eastern country for a third time, because he believes the British Government has no legal authority for the war it is waging there.

He refused to return to Basra - where two contingents of New Zealand engineers served - after British Attorney-General Lord Peter Goldsmith claimed that coalition forces were administering Iraq without lawful authority.

Mr Sapsford, who grew up in Christchurch and was educated there before becoming an international expert on human rights law, drew a parallel with the Nuremberg war crime trials at which judges said Nazi defendants should have refused orders which were illegal.

But Timothy Garden, a former assistant chief of the British Defence Staff, told The Australian newspaper he believed it would be extremely difficult to convince a British court that the current military activities by US-led forces in Iraq were illegal.

Flt Lt Kendall-Smith is expected to argue that the court must reach its own conclusion as to whether international law was breached by the Iraq invasion, which began without authorisation by any UN Security Council resolution.

The leader of his up to five-member legal team, lawyer Justin Hugheston-Roberts, said the case was "possibly the biggest case to come before any British court in living memory", as he believed the court could potentially find that the war in Iraq was illegal.

His client had not declared himself a conscientious objector to all wars, arguing instead that this particular conflict was illegal.

Gerry Simpson, a specialist in international law at the London School of Economics, told The Australian: "To defend yourself on that basis, you would have to convince the court that the war itself was illegal so you should be excused from service.

"Courts in the UK are reluctant to interfere with the (Government's) prerogative to go to war but it is not inconceivable that the court might examine whether the war is, in fact, in breach of international law."

Flt Lt Kendall-Smith holds dual New Zealand and British citizenship, and is five years into a six-year contract as a doctor with the RAF. He was born in Brisbane and attended primary school and university in Dunedin, where his parents Ian and Margaret Kendall-Smith still live.

Their son graduated from Otago's school of medicine in 1991 and then worked for a year at Dunedin Hospital before moving to Australia for more hospital experience.

He returned to Dunedin in 1996, studying arts at the university for the next two years.

Flt Lt Kendall-Smith is based at RAF Kinloss at Moray in Scotland, but the preliminary hearing of the court martial will be held at a military base in Bulford, 120km southwest of London, on Thursday night, NZ time. The full trial is likely to be staged early next year.