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WORLD CITIZEN LETTER: 502
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WCL 502 November 2005
Disobeying international laws
Few things are more important for world citizens than to have international laws that forbid war and war crimes and protect peace and peace-making. As a consequence, a current legal case in Britain that involves crucial questions of the legality or illegality of the war against Iraq and the subsequent Anglo-U.S. occupation should be among the forefront of concerns for world citizens.
A RAF Flight Lieutenant, Malcolm Kendall Smith, employed at the Royal Air Force base Kinloss in the north of Scotland has been brought before a court-martial for refusing to serve once again in Iraq, now that it is clear how illegal is the war and occupation. At a the preliminary hearing held earlier in the autumn at Camp Bulford in Wiltshire he denied charges on four counts of refusing to follow orders, and the case was adjourned until December. There will be another private preliminary pre-trial and a public hearing in March 2006. The full trial will happen after that.
Kendall-Smith, a 37-year old, holds dual New Zealand and British citizenship, and is five years into a six-year contract with the British Royal Air Force. He has a medical degree and a postgraduate qualification in philosophy from Otago University and has served in Afghanistan and the Middle East. A senior office from the Ministry of Defence in London, is reported as saying that Kendall-Smith remained on the base but was suspended from work. "Clearly if an individual is facing court martial procedures it's going to be playing on your mind. And if you are a doctor ... same as if someone is a pilot or driving a car... you shouldn't be doing it." Kendall-Smith, who was employed as general medical practitioner for the base's 2000 personnel, was able to perform minor administration tasks.
News of this case has had much resonance in New Zealand already. Former colleagues and lecturers there describe Kendall Smith as a "thinker". His philosophy thesis, a 65-page bound critique on the philosopher Immanuel Kant, grapples with ethics, human freedom and morality. Grant Gillett, an Otago neurosurgeon and biomedical ethics professor, taught and worked with Kendall Smith. "He had a very informed conscience," said Gillett. "He's a thoughtful individual, quite intense in some ways. One felt like saying to him `lighten up'." Said Gillett: "You don't do philosophy as a doctor, unless you're keen to think through issues. I think Malcolm has conscientiously taken to heart the need to think carefully through what one is involved in and its legality and its moral qualities."
Kendall-Smith's academic records show he scored A-grades in subjects such as metaphysics and critical thinking, and A-pluses in the history of philosophy and an introduction to epistemology – the philosophy of knowledge. Charles Pigden, the senior lecturer in philosophy who marked Kendall-Smith's thesis, said: "Kant was the philosopher who makes doing the right thing of critical importance...people who are interested in Kant's ethics, they're keen on morality. "Maybe Dr Kendall-Smith thought that in joining the British Army he wouldn't be getting into morally dubious stuff. Which sadly proved not to be the case."
Justin Hugheston-Roberts, the flight-lieutenant's main legal spokesman said the ramifications of the case were "quite awesome". "This is the first case to question the constitutional legality of the invasion. The fax machine hasn't stopped. It's quite extraordinary. They're saying things like: `Good on you, mate.' Everyone from politicians to little old ladies."
Hugheston-Roberts said his client was a "highly astute young man" who was bearing up well while spending most of his time sitting in his room reading. He confirmed Kendall-Smith would be helping with his own defence. "He is very bright, very switched on, very learned. He is a very valued client. We are looking at as many as five lawyers from this firm working full time on this case until the court martial. I don't expect that to be before January."
It may well be that the prosecution will have a difficult time: if they rely on the standard stuff, such as the Attorney-General's "defence" of the legality of the war and this is accepted the case will surely go to appeal. As the government must be very apprehensive of a reference to any international court it may happen that their only recourse is to cease the prosecution on the grounds of the public interest and give the flight-lieutenant am honourable discharge. Not very brave, but the alternative would look much worse.
The morality of the invasion of Iraq is a separate issue to legality and one open to argument. The despicable nature of Saddam Hussein's rule makes is possible to believe military action better than permitting it to continue. But the legal case against war is vastly simpler and clearer: apart from the lies and propaganda used to justify the American and British attack, the fundamental flouting of the UN Charter makes this a test case of the rule of law. However flawed the law may be, it is not as flawed as the actions of those who disregard it. Kendall-Smith's lawyers have said their client did not object in principle to serving in any war, provided it was legal. "He is not arguing that he is a conscientious objector. He is arguing that the war is manifestly unlawful," Hugheston-Roberts told the Sunday Times.
It would be of assistance to the defence and even more to the aiding of the evolving international law if Kendall Smith gets wide support from many parts of the world. Please add your own voice to the general condemnation of the attemtpt to compel obedience to illegal orders and an illegal war.
The address for support is via his solicitor Hugheston-Roberts at justin@roselaw.co.uk
John Roberts
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