Malcolm Kendall-Smith
Encyclopedia
Malcolm Kendall-Smith is a former medical officer
in the British
Royal Air Force
. He was born in Australia
, raised in New Zealand
and has dual British-New Zealand citizenship.
He was the first British officer to face criminal charges for challenging the legality of the war against Iraq
. On 5 October 2005 he was charged with five counts of disobeying a lawful command between 1 June and 12 July 2005. Four of these relate to him refusing to carry out preparatory training with the final charge relating to his refusal to deploy to Iraq.
In October 2005 his solicitor, Justin Hugheston-Roberts, told the Sunday Times
"He is not arguing that he is a conscientious objector
. He is arguing that the war is manifestly unlawful."
Kendall-Smith was found guilty on all five charges of disobeying orders, sentenced to a penalty of eight months in prison and ordered to pay £20,000 costs.
, on 15 March 2006, Kendall-Smith said: "I am a leader. I am not a mere follower to whom no moral responsibility
can be attached."
Philip Sapsford, QC
, defending, told the court martial: "The flight lieutenant is entitled to advance before this tribunal that the use of force in Iraq was unlawful in international law," essentially reasoning that Kendall-Smith should be allowed to argue that any participation in the war effort was therefore unlawful. Sapsford added that the defence team was prepared to produce expert evidence to show that UN Resolution 1546, relied upon by the UK and US governments to justify the 2003 Invasion of Iraq
, was no defence in international law. Sapsford also said he was considering calling former SAS soldier Ben Griffin
, who recently resigned because of his objections to the war, to give evidence.
Prosecutors argued that the legal questions surrounding the invasion of Iraq were irrelevant and that the case should centre only around the official orders given to Kendall-Smith. Prosecutor David Perry argued that at the time Kendall-Smith refused to deploy, the invasion itself was over and British forces were in Iraq with the authority of U.N. Security Council resolutions passed after Saddam's fall.
A ruling on 22 March 2006, by the judge advocate Jack Bayliss, concurred. Bayliss dismissed Kendall-Smith's argument, ruling that he must face trial by court martial and would not be allowed to argue that the order to deploy was illegal. Obviating Kendall-Smith's argument that any participation in the war effort was unlawful on the basis of an illegal invasion, Bayliss asserted that British forces had full justification under UN resolutions 1511
and 1546 to be in Iraq at the time the charges were filed against Kendall-Smith in June and July, 2005.
The judge advocate also rejected Kendall-Smith's claim that by serving in Iraq he could be complicit in a crime of aggression. Such a crime "cannot be committed by those in relatively junior positions such as that of the defendant. If a defendant believed that to go to Basra would make him complicit in the crime of aggression, his understanding of the law was wrong," Bayliss said.
Combat medic
Combat medics are trained military personnel who are responsible for providing first aid and frontline trauma care on the battlefield. They are also responsible for providing continuing medical care in the absence of a readily available physician, including care for disease and battle injury...
in the British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
Royal Air Force
Royal Air Force
The Royal Air Force is the aerial warfare service branch of the British Armed Forces. Formed on 1 April 1918, it is the oldest independent air force in the world...
. He was born in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, raised in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
and has dual British-New Zealand citizenship.
He was the first British officer to face criminal charges for challenging the legality of the war against Iraq
2003 invasion of Iraq
The 2003 invasion of Iraq , was the start of the conflict known as the Iraq War, or Operation Iraqi Freedom, in which a combined force of troops from the United States, the United Kingdom, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of major combat operations...
. On 5 October 2005 he was charged with five counts of disobeying a lawful command between 1 June and 12 July 2005. Four of these relate to him refusing to carry out preparatory training with the final charge relating to his refusal to deploy to Iraq.
In October 2005 his solicitor, Justin Hugheston-Roberts, told the Sunday Times
The Sunday Times
The Sunday Times is a British Sunday newspaper.The Sunday Times may also refer to:*The Sunday Times *The Sunday Times *The Sunday Times *The Sunday Times...
"He is not arguing that he is a conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
. He is arguing that the war is manifestly unlawful."
Kendall-Smith was found guilty on all five charges of disobeying orders, sentenced to a penalty of eight months in prison and ordered to pay £20,000 costs.
Pre-trial hearing
In a statement to the court martial at a pre-trial hearing in AldershotAldershot
Aldershot is a town in the English county of Hampshire, located on heathland about southwest of London. The town is administered by Rushmoor Borough Council...
, on 15 March 2006, Kendall-Smith said: "I am a leader. I am not a mere follower to whom no moral responsibility
Moral responsibility
Moral responsibility usually refers to the idea that a person has moral obligations in certain situations. Disobeying moral obligations, then, becomes grounds for justified punishment. Deciding what justifies punishment, if anything, is a principle concern of ethics.People who have moral...
can be attached."
Philip Sapsford, QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, defending, told the court martial: "The flight lieutenant is entitled to advance before this tribunal that the use of force in Iraq was unlawful in international law," essentially reasoning that Kendall-Smith should be allowed to argue that any participation in the war effort was therefore unlawful. Sapsford added that the defence team was prepared to produce expert evidence to show that UN Resolution 1546, relied upon by the UK and US governments to justify the 2003 Invasion of Iraq
2003 invasion of Iraq
The 2003 invasion of Iraq , was the start of the conflict known as the Iraq War, or Operation Iraqi Freedom, in which a combined force of troops from the United States, the United Kingdom, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of major combat operations...
, was no defence in international law. Sapsford also said he was considering calling former SAS soldier Ben Griffin
Ben Griffin (former British soldier)
Benjamin Griffin is a former British SAS soldier who refused to return to Iraq and left the Army, citing not only the "illegal" tactics of United States troops and the policies of coalition forces but also that the invasion itself was illegal, being contrary to international law...
, who recently resigned because of his objections to the war, to give evidence.
Prosecutors argued that the legal questions surrounding the invasion of Iraq were irrelevant and that the case should centre only around the official orders given to Kendall-Smith. Prosecutor David Perry argued that at the time Kendall-Smith refused to deploy, the invasion itself was over and British forces were in Iraq with the authority of U.N. Security Council resolutions passed after Saddam's fall.
A ruling on 22 March 2006, by the judge advocate Jack Bayliss, concurred. Bayliss dismissed Kendall-Smith's argument, ruling that he must face trial by court martial and would not be allowed to argue that the order to deploy was illegal. Obviating Kendall-Smith's argument that any participation in the war effort was unlawful on the basis of an illegal invasion, Bayliss asserted that British forces had full justification under UN resolutions 1511
United Nations Security Council Resolution 1511
United Nations Security Council Resolution 1511, adopted unanimously on October 16, 2003, after reaffirming previous resolutions on Iraq, particularly 1483 and 1500 , and Resolution 1373 on terrorism, the Council urged countries to contribute towards a multinational force to maintain security and...
and 1546 to be in Iraq at the time the charges were filed against Kendall-Smith in June and July, 2005.
The judge advocate also rejected Kendall-Smith's claim that by serving in Iraq he could be complicit in a crime of aggression. Such a crime "cannot be committed by those in relatively junior positions such as that of the defendant. If a defendant believed that to go to Basra would make him complicit in the crime of aggression, his understanding of the law was wrong," Bayliss said.
Court-martial
A Court-martial in Aldershot sat from 11 April to 13 April 2006. Kendall-Smith was found guilty on all five charges of disobeying orders, and sentenced to a penalty of eight months in prison and ordered to pay £20,000 costs.See also
- Ben GriffinBen Griffin (former British soldier)Benjamin Griffin is a former British SAS soldier who refused to return to Iraq and left the Army, citing not only the "illegal" tactics of United States troops and the policies of coalition forces but also that the invasion itself was illegal, being contrary to international law...
- List of Iraq War Resisters
- Ehren WatadaEhren WatadaEhren K. Watada was a First Lieutenant of the United States Army. He was the first commissioned officer in the US armed forces to refuse to deploy to Iraq, in June, 2006...