RAF officer jailed for eight months

[part/time supporter]

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An RAF doctor who refused to serve in Iraq has been sentenced to eight months in jail and dismissed from the service.


Flt Lt Malcolm Kendall-Smith, 37, was found guilty of five charges of disobeying orders after he refused to go to Basra last June.
He claimed his actions were justified as the UK involvement was illegal.

But a court martial panel agreed with prosecution lawyers the doctor, who was based at RAF Kinloss in Scotland, could not "pick and choose" orders he obeyed.

Dr Kendall-Smith was also ordered to pay £20,000 in costs.


The judge told him: "You have, in the view of this court, sought to make a martyr of yourself and shown a degree of arrogance which is amazing.
"Consequently you have lost any credit you might have been given
for guilty pleas."

At least we now know where the judiciary would stand if totalitarianism ever takes hold in the UK,


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[Colr]

Originally Posted by part/time supporter

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At least we now know where the judiciary would stand if totalitarianism ever takes hold in the UK,


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The consequnces of him winning would have rendered the armed forces inopperable - he was never going to win on this.

[part/time supporter]

I know that he was never going to win, but the judge's attitude concerns me. It seems to me that he dismissed the officer's argument on the basis that it wasn't a competent argument. I think the judge should have considered whether the war was legal in his opinion.

[Colr]

Originally Posted by part/time supporter

I know that he was never going to win, but the judge's attitude concerns me. It seems to me that he dismissed the officer's argument on the basis that it wasn't a competent argument. I think the judge should have considered whether the war was legal in his opinion.

If the legality or otherwise of the war was outwith the law on which the charge was based he would not have to. He could only disobey the order if the order itself was illegal.

Soldiers cannot refuse to go to war because they don't agree with the war.

[KABULHIBBY]

Originally Posted by Colr

The consequnces of him winning would have rendered the armed forces inopperable - he was never going to win on this.

He actually had no case for refusal under either UK or International law, individuals are not held accountable for their governments actions only for their own in a conflict situation.

As a small aside and purely IMO, he had less reason to object to going to Iraq because he was/is a doctor. He would not be required to take up offensive arms against the state and would be there to prolong live and prevent suffering(part of his hippocratic oath btw).

Look for him to be struck off from the GMC next

[KABULHIBBY]

Originally Posted by part/time supporter

I know that he was never going to win, but the judge's attitude concerns me. It seems to me that he dismissed the officer's argument on the basis that it wasn't a competent argument. I think the judge should have considered whether the war was legal in his opinion.

Judge can only rule on fact not his opinion, as of the time of the trial the invasion of Iraq has not been ruled illegal, pretty much end of the defences case in that situation.

Think he should think himself lucky he only got 8 months. Had they actually tried him on a charge of cowardice he could have been lookng at life.

[Colr]

Originally Posted by KABULHIBBY

He actually had no case for refusal under either UK or International law, individuals are not held accountable for their governments actions only for their own in a conflict situation.

As a small aside and purely IMO, he had less reason to object to going to Iraq because he was/is a doctor. He would not be required to take up offensive arms against the state and would be there to prolong live and prevent suffering(part of his hippocratic oath btw).

Look for him to be struck off from the GMC next

Would have been more sensible to buy himself out rather than upend his career by throwing the toys out the pram.

[madkink]

Originally Posted by part/time supporter

I know that he was never going to win, but the judge's attitude concerns me. It seems to me that he dismissed the officer's argument on the basis that it wasn't a competent argument. I think the judge should have considered whether the war was legal in his opinion.

the judge is unable to do that, as he would then to put forward charges to say this, he is not allowed to declare if the way was legal or not

[KABULHIBBY]

Originally Posted by Colr

If the legality or otherwise of the war was outwith the law on which the charge was based he would not have to. He could only disobey the order if the order itself was illegal.

Soldiers cannot refuse to go to war because they don't agree with the war.

Happy to see that somebody actually gets it
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[hoagy boy]

Maybe they should have shot him
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[Cowshed Graffiti]

Two points:

1) Courts Martial redefine "kangaroo" and will never issue shock judgments such as the one the good doctor was hoping for.
2) I've a lot of sympathy for this guy but if you don't agree with wars don't join the armed forces.

[Colr]

Originally Posted by Cowshed Graffiti

2) I've a lot of sympaty for this guy but if you don't agree with wars don't joined the armed forces.

Quite, and the same goes for those who join the terratorials then squeal when they are called up.

[egb_hibs]

You have to wonder at why the guy joined up. However murky iraq is, it's considerably less so than the majority of campaigns that the british army has undertaken throughout it's history!

[part/time supporter]

Appears that I'm in a minority here, but I'm used to that.


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Originally Posted by Cowshed Graffiti

Two points:

1) Courts Martial redefine "kangaroo" and will never issue shock judgments such as the one the good doctor was hoping for.
2) I've a lot of sympaty for this guy but if you don't agree with wars don't joined the armed forces.

What would you do in a conscription or draft situation then?

Originally Posted by KabulHibby

He actually had no case for refusal under either UK or International law, individuals are not held accountable for their governments actions only for their own in a conflict situation.

I'm not comfortable with this distinction. At what point in the chain of command do you distinguish between collective (Government) and individual actions?

[Cowshed Graffiti]

Originally Posted by part/time supporter

What would you do in a conscription or draft situation then?

Well, that doesn't apply in this case. He volunteered. But in a conscription or draft situation I'd be a conscientious objector. In any case, it's unlikely to be a problem as I'm about a 4Z for fitness (in the event of war, I'm a sandbag).
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[Daddy'O'Hibee]

Interesting story, the blokes obviously an intelligent man, im sure he knew himself about a soldiers duty when signing up. Sometimes we feel so strongly about certain issues that we as humans have to stand up and challenge them, looks like his careers finished. I don't believe he's a coward, but then again who knows another mans mind. Every judge in the UK would have come to the same conclusion.


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[KABULHIBBY]

Originally Posted by part/time supporter

I'm not comfortable with this distinction. At what point in the chain of command do you distinguish between collective (Government) and individual actions?

In this situation IF the Iraq war was declared ilegal under international law then individual members of the armed forces are exempt from prosecution for the waging of the war. The military after all is non political,well in this country anyway, and as such are bound by the commmands of the government of the day.

An individuals actions are just that, individual. Being signatory to both Hague and Geneva conventions lays down a legal obligation in the conduction of war, Britain has already modified weapons ballistics and behaviour to ensure that it stays in line with the conventions. Best example I can give to differentiate is this. Order 1, take your section destroy enemy at edge of woods, on completion hold position is a perfectly legal order. However, take these two PWs behind the barn and use them for bayonet practice, isn't.

And as far as I can remember no member of the Iraqi Republican guard or Argentine Commandos has ever been prosecuted by International Tribunal for their part in the first Gulf and Falklands War respectively, they were after all the first troops to breach the countries borders

[KABULHIBBY]

Originally Posted by Cowshed Graffiti

Two points:

1) Courts Martial redefine "kangaroo" and will never issue shock judgments such as the one the good doctor was hoping for.

Is that opinion borne from experience or conjecture
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[Cowshed Graffiti]

Originally Posted by KABULHIBBY

Is that opinion borne from experience or conjecture
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Informed speculation. I was completely innocent, I tell you. I merely took that tank outside to see what it looked like in the light.

[pq123]

If a member of the armed services believes that the action (invasion and occupation) was illegal. Would it not be reasonable to assume, from his perspective, that every order in support of the initial illegal action was a continuation of the that action?

Not that you would get a military tribunal to agree to that line of thinking. The whole military structure is based on obeying and not questioning orders irrespective of the legality.

PQ123

[KABULHIBBY]

Originally Posted by pq123

If a member of the armed services believes that the action (invasion and occupation) was illegal. Would it not be reasonable to assume, from his perspective, that every order in support of the initial illegal action was a continuation of the that action?

Not that you would get a military tribunal to agree to that line of thinking. The whole military structure is based on obeying and not questioning orders irrespective of the legality.

PQ123

First point nohthing to do with us guv but no, every soldier goes into this accepting the prima facia case that the governments orders to wage conflict are legal, there is reams of signed paperwork that absolves their forces from prosecution.

Point 2, wrong whilst there are times that orders are followed without questioning there are also situations that actively encourage the questioning, especially if something is illegal. EVERY soldier goes into a conflict knowing what is a legally constituted order and what is not. Plus if they didn't question orders, then nobody would evolve their knowledge and take the most out of the experience.