Editorial: Heroic Witness

Reprinted from The Common Good, No 37, Pentecost 2006

We have been rejoicing in the witness of New Zealand citizen Flight Lieutenant Malcolm Kendal-Smith, a doctor in the RAF, based in England. As a result of a court martial for refusing to deploy to the war in Iraq, he has been convicted and sentenced to eight months in prison, discharged from the Air Force and ordered to pay 20,000 pounds towards his defence costs.

Kendall-Smith was born in Australia but brought up in New Zealand, where he studied to become a doctor. He returned to work in Australian hospitals before returning to New Zealand in 1996 to complete a post-graduate diploma in philosophy. He went to England, joined the RAF and was commissioned as an officer in 2000. Having served once in Iraq, last year he refused to return and disobeyed five orders to prepare for deployment. He contends the war is illegal and thus so are the orders to serve. However the chief judge ruled before the trial began that British troops were in Iraq in accord with United Nations resolutions, thus preventing Kendall-Smith from presenting evidence based on moral or international law or the necessity defence.

Giving evidence in the first British case of its kind, he told his two-day court martial at a military base in Aldershot near London in April that ‘I refused the order out of duty to international law, the Nuremberg principles and the law of armed conflict.’ The judge interrupted his attempts to give evidence of legal opinion on the legality of the Iraq occupation saying he would not allow his court to be used as a grandstand. The judge had previously ruled the war as legal, refusing to accept argument to the contrary. Kendal-Smith told the judge that ‘as early as 2004, I regarded the US to be on a par with Nazi Germany as regards its activities in the Gulf.’ When cross-examined by the prosecutor who asked, ‘Are you saying the US is the moral equivalent of the Third Reich?’ Kendal-Smith replied, ‘That is correct.’

Speaking after the verdict, he said, ‘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 Prime Minister 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.’ Malcolm Kendall-Smith will serve his time in a civilian prison.

Letters of support can be sent to Malcolm Kendall-Smith, HMP Chelmsford, 200 Springfield Road, Chelmsford, Essex, CM2 6LQ, United Kingdom.

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