UK: Prisoner of conscience released and tagged
01 May 2006
In April Flight Lieutenant Malcolm Kendall-Smith was jailed for eight months and discharged from the military for refusing to fight in Iraq after being found guilty of failing to comply with "lawful orders". The RAF officer and doctor, who is based at RAF Kinloss in Morayshire, Scotland, was convicted on five charges, including refusing to serve in Basra, by a court martial panel of five officers. He is the first member of the armed forces to be charged with disobeying an order to deploy to Iraq and the ruling has generated widespread criticism. Kendall-Smith had argued that he was acting on moral grounds established at the Nuremberg Tribunal and was not prepared to participate in an "act of aggression" that was contrary to international law. He likened the US-led invasion of Iraq to a nazi war crime and has lodged an appeal against the decision. The RAF officer received widespread support for his arguments, including more than 500 letters that were sent to his solicitor. Civil liberties groups argue that he is being criminalised for acting according to his conscience, (see
Statewatch Vol. 15 no 5 & 6).
The military panel of five RAF officers took only one and a half hours to reach their guilty verdicts. The court martial panel accepted that Kendall-Smith had acted on moral grounds but asserted that his actions in questioning military authority were "arrogant", (at a previous hearing Judge Advocate Jack Bayliss had instructed the doctor not to use this defence). Bayliss also refused to allow Kendall-Smith to present witnesses, including a fellow soldier and an Iraqi doctor, who would have described the collapse of the Iraqi state's infrastructure as a direct consequence of the invasion. Bayliss said that the eight month sentence was intended to make an example of Kendall-Smith and to serve as a warning to others who might follow his example. Kendall-Smith countered that after studying the legal advice given to the prime minister:
I satisfied myself that the actions of the armed forces in Iraq were in fact unlawful, as was the conflict...I believe that the current occupation of Iraq is an illegal act and for me to comply with an act which is illegal would put me in conflict with both domestic and international law.
Bayliss' remarks concerning obedience to orders ignores the long-standing principal established at the Nuremberg war trials that obeying illegal orders was no defence against charges of war crimes.
In July Kendall-Smith was released from prison and placed under "home detention" until September after serving part of his sentence in the high-security Chelmsford prison. There was no explanation from the authorities as to why he should have been detained in a high-security jail. The conditions imposed on him mean that he has been tagged and placed under a curfew; he also has been ordered to pay £20,000 in court costs. The Military Families Against the War Campaign has set up a special fund to help cover some of these cost (see contact details below). Speaking shortly after his release from prison Kendall-Phillips said:
Do not believe government propaganda, the continuing use of force against the people of the formerly independent state of Iraq is motivated by political corruption, corporate profits and aggressive capitalism.
Military Families Against the War: http://www.mfaw.org.uk/mkspage.html; Guardian 13.7.06; Independent 14.7.06.