Rohan Pearce
"The invasion and occupation of Iraq is a campaign of imperial military conquest and falls into the category of criminal acts. I would have had criminal responsibility vicariously if I had gone to Iraq. I still have two great loves in life — medicine and the RAF. To take the decision that I did caused great sadness, but I had no other choice" — from the post-trial statement of Flight Lieutenant Malcolm Kendall-Smith.
In June and July 2005, Kendall-Smith, an Australian-born medical officer serving in the British Royal Air Force, refused to carry out orders relating to preparing for deployment to, and deploying to, Iraq, on the grounds that the US-led invasion and occupation of that country was illegal under international law. On April 13, the court martial of Kendall-Smith in Aldershot, south-west of London, concluded. He was found guilty on all five charges that he faced.
His lawyer was quoted in the October 16 London Sunday Times explaining: "He is not arguing that he is a conscientious objector. He is arguing that the war is manifestly unlawful." A colleague of Kendall-Smith told the Sunday Times that the soldier was "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."
During a pre-trial hearing in March, judge-advocate Jack Bayliss ruled that Kendall-Smith would not be allowed to argue that the orders he refused to obey were illegal or that serving in Iraq would be a criminal act. According to the Sunday Times, the RAF's law manual "states that a serving officer is justified in refusing to obey a command if it is illegal".
Bayliss said that "The crime of aggression, even if it were a crime of which the domestic courts of the United Kingdom would take cognisance, cannot be committed by those in relatively junior positions such as that of the defendant".
However, Principle IV of the Nuremberg Principles, devised during the trials of Nazis after the end of World War II, states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
Kendall-Smith was sentenced to eight months' jail and forced to pay £20,000 towards the cost of his legal defence.
A statement released by the British Stop the War Coalition on April 13 expressed solidarity with Kendall-Smith: "The sentence of eight months passed on him for refusing to serve in Basra is an outrage. He acted on his conscience in refusing to serve in an illegal war. In doing so, he acted on behalf of many people in this country."
[Messages of support can be sent to <justin@roselaw.co.uk>. An online petition calling for the release of Kendall-Smith can be found at <http://www.mfaw.org.uk>.]
From Green Left Weekly, April 26, 2006.
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