Doctor cites Nuremberg in Iraq case (Australia)

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AN Australian-born RAF doctor has cited the Nuremberg war trials in today's court martial over his refusal to serve in Iraq. Flight-Lieutenant Malcolm Kendall-Smith, 37, was also accused by the judge of grandstanding at today's trial in Aldershot where he is facing five charges of refusing a lawful order.

Lt Kendall-Smith refused a call-up in June and July of 2005, arguing the incursion in Iraq by UK forces was illegal and he would be legally complicit with potential war crimes if he served in Iraq. He cited World War II's Nuremberg trials which ruled that the defence of 'just following orders' was an invalid defence against war crimes. "I refused the order out of duty to international law, the Nuremberg principles and the law of armed conflict," he said.

"I have two great loves - medicine and the RAF. "To take the decision I have taken saddens me greatly but I feel I have no choice." The prosecution is arguing the UK presence in Iraq at the time of Lt Kendall-Smith's refusal was at the invitation of the interim Iraqi government and mandated by the United Nations, making the status of the original 2003 incursion irrelevant.

Lt Kendall-Smith studied legal opinion on the legality of the Iraq occupation before informing the RAF he was not willing to serve there. As he attempted to give evidence of that legal opinion today, he was stopped by Judge Bayliss.
"I will not allow this court to be used as a grandstand and I am determined to stick with relevant issues," Judge Bayliss said. Kendall-Smith resigned from the RAF in May of 2005, but resignations typically take 6-12 months to take effect, in which time personnel are subject to deployment.

more
http://www.theaustralian.news.com.au/story/0,20867,18792234-1702,00.html

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1. Mandated by the United Nations!?

What planet are they just in from?

[Barrett808]

2. Bless his heart -- this defense never worked in the US

At least, in the Vietnam era.

[TechBear_Seattle]

3. So war crime prosecutions are not "relevant issues"

How terribly sad. The irony is that Australia was one of the countries behind forcing the prosecutions at Nuremburg.

[Kailassa]

5. As was England. He's RAF, not RAAF.

It's the English government he's fighting on this one.
- not that our government would be any better.

[simonm]

4. Judge is a moron

"I will not allow this court to be used as a grandstand and I am determined to stick with relevant issues,"


The legality of the war is relevant. What an asshole.

[daleo]

6. The doctor has a point

It will be interesting to see how the British finesse it. They're good at that.

[LynnTheDem]

7. Top UK law lords; Iraq invasion ILLEGAL.

October 19, 2005; British Law lord damns "illegal Iraq war'

One of Britain’s most senior judges last night accused ministers of producing “half-baked” criminal justice reforms and then blaming judges for the failings of the system. Lord Steyn, a law lord, also launched a scathing attack on ministers over the Iraq war, accusing them of “scraping the bottom of the legal barrel” to justify their case.

He said it was a “fairytale” to suggest that the Iraq war did not make London a “more dangerous place”.

Lord Steyn echoed the views of Lord Alexander of Weedon, QC, his predecessor at Justice, with a robust attack on the legality of the Iraq war. Lord Alexander’s view that the war was illegal “reflected the overwhelming view of international lawyers and was undoubtedly correct”.

http://www.timesonline.co.uk/article/0,,2-1832270,00.html

And there's more. Much, much more;
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=104&topic_id=5121232&mesg_id=5121232

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8. RAF doctor refused to fight 'illegal' Iraq war

An RAF doctor on trial for refusing to serve in Iraq told a court martial yesterday that he refused to go because the war was against "international law, the Nuremberg principles and the rules of armed conflict". Flight Lieutenant Malcolm Kendall-Smith, the first member of the armed forces to be charged with disobeying orders to deploy in Iraq, said he had come to his decision after researching the legal advice given to Tony Blair by the Attorney General, Lord Goldsmith.

The officer, who has dual British and New Zealand nationality, told the hearing that he had "two great loves in my life, medicine and the Royal Air Force. To take the decision that I have saddens me greatly but I feel that I have no other choice." Flt Lt Kendall-Smith, 37, has been charged with five counts of disobeying lawful commands in 2005 when he was asked to deploy to Basra inIraq. There are no set time limits on any prison sentence he may face if convicted.

The officer, who held a post as a tutor in moral philosophy at a New Zealand university, had previously served in Oman, Kuwait and Qatar in support of operations in Afghanistan and Iraq. After studying the arguments for and against the invasion he declared that he did not want to be complicit in an illegal war and tried to resign from the RAF. Giving evidence at the opening day of the court martial at Aldershot barracks in Hampshire, Flt Lt Kendall-Smith said: "The illegality of the use of force against Iraq was the only reason I could not follow this order."

(snip)
I was subjected, as was the entire population, to propaganda depicting force against Iraq to be lawful but it was not until the middle of 2004 that I researched and found that not to be the case.
http://news.independent.co.uk/uk/legal/article357224.ece