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Lieutenant Kendall-Smith

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Court Hearing Case Challenging Legality Of Iraq War


By James Donahue

Nov. 7, 2005


The case involves a military court martial in the United Kingdom. Its outcome could have a resounding impact on the ongoing Iraq War by both British and U.S. forces.


Flight Lieutenant Malcolm Kendall-Smith of Wiltshire is facing a military court on four counts of disobeying a lawful command after he refused to return to Iraq for a third tour of duty, according to the UK Guardian.


What is unique about Lt. Kendall-Smith’s case is that he is a decorated medical officer in the Royal Air Force who says that recently revealed evidence showing lies, distortions of fact and political manipulations used to justify the invasion have convinced him that both the war and the occupation are illegal.


He argues that any order arising from what is a criminal action is, in itself, an unlawful command. He notes that his RAF manual of law compels him to refuse such illegal orders.


That he is standing up against a military court to protest the war after three tours at the front in Afghanistan and Iraq, with this agenda, seems to attest to the bravery of Lt. Kendall-Smith.


He is not claiming conscientious objections against war, or religious or medical reasons for bowing out. He says he has become convinced that the war is illegal and that he would be a criminal at this point to support it any longer.


Kendall-Smith is no dummy. He holds a pair of university degrees in medicine and Kantian moral philosophy.


His case will use a report in the Observer that revealed a secret briefing by Lord Goldsmith, the British attorney general, who expressed doubts about the legality of the planned invasion of Iraq while meeting with Prime Minister Tony Blair. Goldsmith allegedly warned Blair that such an attack, unsanctioned by the United Nations, might be studied by the International Criminal Court for possible war crimes charges.


The Guardian story said that Blair and Goldsmith kept this report secret. Three days before the attack, Goldsmith produced another paper that was made public. This one advised the Parliament that it was his opinion that the invasion would be legal.


“The statement was almost certainly crafted in Washington where Goldsmith had recently been tutored by the Bush gang’s consiglieres, including the legal advisors to Colin Powell, Donald Rumsfeld and Condoleezza Rice,” the Guardian story said.


Kendall-Smith will argue that he knew none of this during his first two tours in Iraq. The secret papers showing the Goldsmith blackflip was revealed in April 2005.


The legal battle involving this lone British soldier will be well worth watching in the weeks to come. If he wins his case . . . which may be difficult since he will be judged by ranking officers within the military . . . he may be setting a precedent for a larger legal action by an International Criminal Court against the people who now are seeking the head of deposed Iraqi President Saddam Hussein.


Ironically, Hussein is accused of the very crimes Kendall-Smith says the leaders of the United States and England committed and continue to commit in Iraq.

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