RAF doctor jailed for refusing to go to Iraq

A Royal Air Force (RAF) doctor who refused to go to Iraq on the grounds that the war there was illegal was jailed for eight months on Thursday in what the judge described as a message to the armed forces about the consequences of rejecting "the policy of Her Majesty's government."

Flight Lieutenant Malcolm Kendall-Smith, 37, of dual British and New Zealand citizenship, was found guilty on five counts of disobeying orders after a trial marked by bitter exchanges, in which he compared the actions of US forces to those of Nazi Germany.

Addressing the military court after a board of five RAF officers delivered their unanimous guilty verdicts, judge advocate Jack Bayliss told Kendall-Smith: "You have ... sought to make a martyr of yourself. You have shown a degree of arrogance which is amazing."

The judge acknowledged that the RAF doctor had refused to go to Basra last year in the belief "that what was being done in Iraq was morally wrong," adding: "No doubt many things have been done in Iraq which were wrong and many things which are wrong continue to be done."

But he said where unlawful acts had been shown to be the responsibility of British forces, "the appropriate authorities and these courts have been fearless in seeking to bring to justice those responsible" -- a reference to previous court martials of soldiers accused of abusing Iraqi civilians.

Bayliss had already ruled that the legality of the invasion of Iraq was irrelevant to the case. He said on Thursday: "Legal opinion may be divided as to the correctness or otherwise of the advice given by the attorney general [on the legality of the war]. But when such advice has been given, members of the armed forces cannot go behind it."

If an officer disagreed with the moral position of the government, the judge said, the honorable thing to do would be to resign. Kendall-Smith should have done that in 2004 after deciding the presence of British troops in Iraq was illegal.

The judge continued: "Obedience of orders is at the heart of any disciplined force. Refusal to obey orders means that the force is not a disciplined force but a rabble." A non-custodial sentence "would send a message to all those who wear the Queen's uniform that it does not matter if they refuse to carry out the policy of Her Majesty's government."

In a statement outside the court at Aldershot, in southern England, defense lawyer Justin Hugheston-Roberts said Kendall-Smith, who was also dismissed from the RAF on Thursday, felt his actions were "totally justified. He would do the same thing again [and] will appeal against the conviction and the sentence."

Kendall-Smith said in a statement: "I have a very long way yet to travel and I have a great deal of further work yet to do And I will now concentrate my efforts on that task."

He repeated what he said at his trial -- that his two great loves were medicine and the RAF, and that he felt he had no other choice but to refuse to go to Iraq.

Asked if the sentence came as a shock, Hugheston-Roberts replied: "It would be a shock to anybody."

He said Kendall-Smith had received nearly 500 messages of support, including some from serving members of the armed forces.

It was clear even before it began that Kendall-Smith had a difficult case to prove. Bayliss had already ruled that he could not argue that the presence of British forces in Iraq was unlawful last year -- the year he refused the order to go to Basra. By that time, the prosecution said, the presence of British -- and US -- troops in Iraq had been authorized by UN resolutions and backed by a democratically elected Iraqi government.

Yesterday the judge said that Kendall-Smith's understanding of the crime of aggression under international law was "seriously flawed."