1st May 2006
Flight Lieutenant Malcolm Kendall-Smith is 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.”
A Court-martial in Aldershot in April 2006 found Kendall-Smith guilty on all five charges of disobeying orders, and sentenced to a penalty of eight months in prison. As well as the jail sentence, which he serves in a civilian prison, Kendall-Smith was ordered to pay £20,000 towards his defence costs which were covered by legal aid. The court heard that he had personal savings of £20,000. Kendall-Smith will also be dismissed from the Service.
As part of the campaign to have Kendall-Smith realeased from Prison, a petition has been set up at:
To: JOHN REID – Secretary of state for Defence
We the undersigned condemn the prison sentence passed on Flight Lieutenant Dr Malcolm Kendall-Smith and offer our full solidarity and support.
The sentence of eight months passed on him for refusing to serve in Basra is an outrage, we demand his immediate release.
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.
The judge’s remarks that orders have to be obeyed also give cause for concern.
The Nuremberg trials after the 2nd World War established that obeying illegal orders was no defence against charges of war crimes.
It is even more unjust that Kendall-Smith has been jailed while the advocates and perpetrators of this war have never been held to account.
After his conviction Malcolm Kendall-Smith made the following statement:
“I have been convicted and sentenced, a very distressing experience. But I still believe I was right to make the stand that I did and refuse to follow orders to deploy to Iraq – orders I believe were illegal. I am resigned to what may happen to me in the next few months. I shall remain resilient and true to my beliefs which, I believe, are shared by so many others.
Iraq was the only reason I could not follow the order to deploy. As a commissioned officer, I am required to consider every order given to me. Further, I am required to consider the legality of such an order not only as to its effect on domestic but also international law. I was subjected, as was the entire population, to propaganda depicting force against Iraq to be lawful. I have studied in very great depth the various commentaries and briefing notes, including one prepared by the Attorney General, and in particular the main note to the PM dated 7 March 2003. I have satisfied myself that the actions of the armed forces with the deployment of troops were an illegal act – as indeed was the conflict. To comply with an order that I believe unlawful places me in breach of domestic and international law, something I am not prepared to do.
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.”
Militiary Families Against the War is camjpaigning for Malcolm Kendall-Smith’s release and have organised a fund to pay his court costs.