British LT Refuses Deployment Siting "Unlawful Orders"

An RAF doctor facing charges over his refusal to serve in Iraq has told a court martial that he disobeyed orders "as a duty under international law".

Flt Lt Malcolm Kendall-Smith, 37, who was based at RAF Kinloss in Scotland, has already served twice in Iraq but last year defied an order to return.

He claimed his actions were justified as the UK involvement was illegal.

But the prosecution says:

"The presence of British forces was not unlawful and as a regular serviceman he could not pick and choose those orders he did or did not wish to obey and no question of any unlawful order being given to him arises in this case," he told the Aldershot hearing.

There is another question hanging over this proceeding, but I believe that this question is interesting to discuss among military men and afficianados. For instance, does the fact that he did not find a problem with his two prior deployments affect his ability to claim that it is now an illegal operation?

Does being called to be part of invading force or even an occupation force against another nation infer an "unlawful order" or are "unlawful orders" strictly related to direct orders given to a soldier to perform or act in ways that are not acceptable under the law of land warfare and the Geneva Conventions? Such as the rounding up of civilians into concentratrion camps or mass murder or other depravations? Or, extra judicial execution of surrendered opposing forces?

Can the over all act of committing war between two nations or people with subsequent deployment of forces (whoever fires the first shot or is the "invader") be considered an "unlawful order"?

This lieutenant stated in a letter of resignation after his refusal to be deployed:

"I refused the order out of duty to international law, the Nuremberg principles and the law of armed conflict," he told the hearing.

Which I believe points to several problems. The first is the attempt to push "international law" as superceding the sovereignty and laws of a nation or even superceding that nations national security interests. The second is that he points to the "Nuremburg principles" which hark back to charges against Goering and others of having committed "aggressive war" against Poland and its neighbors. This I believe is what the Lieutenant is charging against his own government.

From my perspective, it has little similarity to the acts of Nazi Germany.

The Lieutenants case has other problems as well:

He said the officer applied for early release from the RAF in May 2005 but was informed he would normally be expected to serve about another 12 months.

"The background to this case appears to be a sense of grievance felt by the defendant, firstly that he could not immediately resign from the RAF, and secondly that he remained eligible for deployment overseas," Mr Perry said.

The Lieutenant is going to try to argue this point by arguing the dateline for his resignation and refusal to deploy v. notification of deployment.

BBC NEWS | UK | Iraq service refusal 'justified'