Kiwi rebel gets his day in court

When Malcolm Kendall-Smith joined Britain's Royal Air Force, he could not have imagined the biggest battle he'd face would be with the organisation he swore to serve.

But that's what happened last week, when the flight lieutenant - a Dunedin-educated New Zealander -became the first British officer to be court-martialled for refusing to go to Iraq.

Kendall-Smith, 37, a doctor at an RAF base in the north of Scotland, is not a conscientious objector or a pacifist. He has been decorated for his service during the US-led war in Afghanistan and for two tours of duty in Iraq.

But there's a catch: Kendall-Smith will go to war only if he believes the order to do so is lawful.

Last year, after reading a leaked pre-war report in which Britain's attorney-general told Prime Minister Tony Blair that the invasion of Iraq might violate international law, Kendall-Smith decided it would be wrong to return.

That decision resulted in him being charged with five counts of "refusing to obey a lawful command".

On Wednesday, he appeared before Judge Advocate Jack Bayliss for a preliminary hearing at the British army's huge Aldershot base.

In a low-ceilinged room in a nondescript brick building, prosecutor David Perry and Kendall-Smith's barrister and fellow Kiwi, Philip Sapsford, QC, confronted each other.

The legal issues were many and varied, but Judge Bayliss boiled them down to this: "Mr Sapsford, it seems to me that you're saying the initial invasion of Iraq was unlawful, and that nothing done since has made it or the order (for Kendall-Smith to go there) lawful."

"Correct," said Sapsford.

Kendall-Smith was arguing that British use of force against Iraq would have been justified only if Iraq had attacked Britain or one of Britain's allies, or if the United Nations Security Council had authorised the invasion.

"There is no evidence we are aware of that the war was lawful," Sapsford said. "If the war is illegal, then the fruits of the poisoned tree trickle down to the order itself."

In other words, if Britain had no authority to be engaged in hostilities in Iraq, it was Kendall-Smith's duty to disobey the order to go there.

To be part of an illegal war could lead to him being charged with the international law crime of aggression.

Nonsense, said Perry. The crime was irrelevant. No one was committing it, and it could in any case be committed only by someone in a position of state leadership -not a lowly flight lieutenant.

Perry said a post-war resolution by the Security Council had authorised the presence of coalition forces, which the Interim Iraqi Government had also invited in.

"It's wrong to suggest that any coalition troops involved in the Iraq theatre since this time have been involved in illegal acts just by virtue of their being there."

He and Sapsford fought on through the day, like two heavyweight boxers trying to land the knock-out punch.

Neither succeeded, and the frustration resulted in the occasional legal low blow - all delivered in the most genteel of tones.

"With the greatest respect," said Perry, "everything my learned friend has said today is either (a) wrong, or (b) irrelevant."

Sapsford responded: "What my learned friend is really saying is, `Sit down, there is no defence'."

It was all a far cry from the chaos and violence of Iraq, which Britain's foreign office minister visited recently and admitted was "a mess".

Throughout it all Kendall-Smith sat ramrod-straight in his blue uniform, turning occasionally to confer with his lawyers. The only words that passed his lips were uttered when asked if he objected to the judge assigned to his case. "No, Judge Advocate Bayliss," he answered stiffly. "I do not object."

What did Kendall-Smith see in Iraq? Did it influence his decision to put his career on the line? The flight lieutenant is not allowed to speak to reporters, so such questions remain for the moment unanswered.

What we know is that he studied philosophy as well as medicine at Otago University - in particular, Immanuel Kant, a philosopher who emphasised the importance of doing one's moral duty, whatever the cost.

There is certainly nothing flippant about the stance Kendall-Smith has taken. He's a serious man in serious trouble, prepared to go to prison for his views.

His manner is intense, almost solitary. He is not married, and apparently has no girlfriend. No family or friends appeared to be in the court.

His colleagues and lawyers say they like and respect him, their descriptions sprinkled with words like "intelligent", "thoughtful", "astute" and "courageous."

None of this will help his case. Nor will the views of those in Britain and abroad who portray Kendall-Smith as a man of conscience and integrity. His fate is being decided in a court of law, not the court of public opinion.

That fate will be clearer this Wednesday, when Judge Bayliss returns with his finding on the legality of the orders Kendall-Smith refused. Few here have any doubt about the outcome.

"They'll throw the book at him," one local man said.

Others point out that if Kendall-Smith can show his orders were unlawful, all British troops in Iraq will have to be brought home.

One man said simply: "He won't be allowed to win."

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