Friday, April 14, 2006

Kendall-Smith jailed

Flight Lieutenant Malcolm Kendall-Smith has been found guilty of refusing to obey orders to go to Iraq, and jailed for eight months. The judge called Kendall-Smith's disobedience "calculated and deliberate", repeated the usual line that soldiers did not get to choose which orders they obeyed (which is not what we said at Nuremberg), and said that the honourable thing to do was to ask to resign. Which is exactly what Kendall-Smith did. But if you ask to resign and are refused, what course does conscience allow other than disobedience? Because that ultimately is what this case is about: freedom of conscience, and the freedom to refuse to participate in actions you believe are illegal or immoral. By denying this fundamental freedom, the British government has effectively reduced itself to the level of a medieval despotism, and turned Kendall-Smith into a political prisoner.


You are talking rubbish here. Soldiers have the right to refuse a illegal order they do not have the right to refuse a legal one. Thats what Nuremberg decided. The orders to the SS (etc) were illegal and hence the soldiers should have refused to obey them. (how they could have in Nazi germany is a different point). In this guys case the orders were legal hence under the terms that he joined the military he did not have the right of refusal any more than he had the right to resign without permission. He knew all of this when he joined up.

You said " freedom of conscience, and the freedom to refuse to participate in actions you believe are illegal or immoral" then he should have not joined up - everybody who joins up knows that you may be ordered to do things which you hate and a repulsed by but that by taking the queens shilling you are agreeing to do them anyway.

" By denying this fundamental freedom, the British government has effectively reduced itself to the level of a medieval despotism, a" he signed this freedom away when he joined the military - he gave it away it was not taken from him so no you are wrong I/S


Posted by Anonymous : 4/14/2006 12:19:00 PM

In this guy's case, the orders were _not_ legal, but the judge refused to let that be debated in court. Hardly surprising, but a gross breach of justice.

Posted by Commie Mutant Traitor : 4/14/2006 12:35:00 PM

CMT: I have not seen any indications (other than your opinion) that the orders he received were in any way not_legal.

He was(is?) a serving military officer who received a reasonable order via his chain of command as military people do every day of their service

For political reasons he decided to reject that order, it had nothing to do with wether it was legal or not.


Posted by Anonymous : 4/14/2006 01:14:00 PM

> Because that ultimately is what this case is about: freedom of conscience, and the freedom to refuse to participate in actions you believe are illegal or immoral.

I am just waiting for an anarchist to use this defence in a theft trial.

Posted by Genius : 4/14/2006 01:26:00 PM

"the judge refused to let that be debated in court."

Not true CMT. The question of whether the orders were legal is a question of law, and as such it was determined in a pre-trial hearing. Kendall-Smith had the opportunity to argue his case that the orders were unlawful and it was determined that they were not.

Juries is common law countries, composed of five military officers, or of 12 civilians, do not decide matters of law, they determine facts and apply the law as it is directed to them by the judge (or judge advocate, as the case may be).

It was the judge's job to determine the legality of the orders, having heard five days of legal arguments (incl. argument from Kendall-Smith's lawyer). Having determined this it was the the jury's job to determine whether Kendall-Smith actually did disobey the orders.

I/S - this trial to me was really about the rule of law - does the law apply equally to everyone, or can one opt out of laws with which one disagrees?

Posted by Graeme Edgeler : 4/14/2006 01:55:00 PM

So it effectively becomes a gamble once you're given an unconsciable order? The judge refused to hear evidence of the war crimes being committed in Iraq by the coalition.

Posted by Anonymous : 4/14/2006 06:29:00 PM

"So it effectively becomes a gamble"


"The judge refused to hear evidence of the war crimes being committed in Iraq by the coalition."

This is true, but the Judge Advocate's decision is entirely defensible. The order given to Flt Lt Kendall-Smith was to go to Iraq. It was determined that this order was lawful.

Certainly the crimes with which various British servicmen have recently been charged are war crimes; if Dr Kendall-Smith were ordered to take part in these matters he would be within his rights (would have been required, no less) to refuse to do so. Dr Kendall-Smith was arguing that the order for him to go to Iraq was an order for him to commit war crimes, it was not. He could have gone to Iraq and not murdered civilians, not tortured prisoners, not done anything other than save the lives he no doubt studied for several years to be able to do.

Those soldiers who mistreat prisoners, who order prisoners maltreated, who stand by and watch civilians murdered, and do nothing, are guilty of war crimes and should be held to account. That you might be serving in the same country as them does not also make you guilty.

An order to go to Iraq is not an order to commit war crimes, it is an order to go to Iraq and not commit war crimes.

Posted by Graeme Edgeler : 4/14/2006 07:44:00 PM

As I understand it, the Judge in this case considered the occupation of Iraq to be no such thing due to a UN resolution.

Now, I've looked through the resolutions, and all I see is one that says the Americans and british forces may remain in Iraq under UN control with final authority in the hands of the Iraqi government, and are to be gone from the state by 2004 regardless. It also requires a great many other things of the occupiers that have been ignored.

It would seem the US and British are in material breach of the UN resolution (to quote a phrase). How one can use a resolution that hasn't been followed by the relevant party as an excuse for the blatant war crimes (a failure to guarantee for the security of the occupied nation, for a start, destroying cities as the ultimate insult) is beyond me.

The UN is not present, the terms of it's resolution have been ignored, and the puppet government has no authority over the occupier, nor over it's own natural resources.
That makes it a straitfoward military occupation, based around theft of resources, which is illegal.

Posted by tussock : 4/15/2006 01:17:00 AM

If only the US and UK had up and left on the dot in 2004 then things would be so much better now.

Posted by Genius : 4/15/2006 06:00:00 AM

tussock - a couple of points can be made:

1) There is more than one way that one country's armed forces may be legally present in another country, one mechanism if having authorisation from the UN Security Council, another is having permission from that country itself.

I presume you are referring to security council resolution 1546, which required that sovereign control of Iraq be returned to an iraqi government by 30 June 2004 (resolution passed unanimously 8 June 2004). If so, you may know that sovereignty was returned on 28 June 2004. The Government put in place (and recognised by the UN) extended an invitation to the coalition forces to stay to help secure the country. Subseqent full elections have been held and neither the Iraqi Parliament, nor any government arising therefrom has rescinded that invitation.

2) The issue in the trial (and at the pre-trial hearing) of Flt Lt Kendall-Smith was whether the order he was given was an order to do something illegal. If the order he was given was an order to commit a war crime (as he claimed) it would have been unlawful. The question that needs to be answered is 'What war crime would Dr Kendall-Smith have been committing had he gone to Iraq to save lives as a doctor?'

I can't think of one: even if George W. Bush and Tony Blair and guilty of the war crime of waging a war of aggression; even if the various soldiers allegedly involved in the murder of civilians and maltreatment of prisoners are guilty of war crimes; even if their commanders were negligent in allowing such abuses, or bear command responsibility for such abuses this does not mean that every individual soldier from the highest ranked general to the lowest ranked private are also guilty of war crimes.

Dr Kendall-Smith's presence in Iraq would have been a war crime if *he* abused prisoners or deliberately injured civilians, otherwise he's just another guy in the country saving lives.

Posted by Graeme Edgeler : 4/15/2006 09:48:00 AM


Of course the puppets asked them to stay, that's what they were told to do. This is a military occuption, formed by agressive war and maintained by brutal repression of dissent, control of who gets to stand in elections and oil revenues. The token support of such puppets is legally meaningless.

So the answer to your question has already been given, participating in an illegal occupation. The defences argument that 1546 did not allow for what is occouring was not allowed to see the light.
In essence the judge listened to the both sides of the case, declared one to be valid and banned the other from being heard. That's what we call a show trial.

And yes, I know the Judges words, that because Kendall-Smith could not be charged with illegal occupation or crimes of agression at his rank then he has no right to refuse such things. I consider that abhorrent, and likely to be nonsense legally.

Posted by tussock : 4/16/2006 12:04:00 AM

SB: Of course, a Nazi court would have said that orders given to the SS and other Nazi war criminals were perfectly legal, and ordered the imprisonment (or worse) of anyone who disagreed. Which is arguably exactly what has happened in this case: the government defending its own indefensible position by the application of legal force.

The position you are arguing - that "everybody who joins up knows that you may be ordered to do things which you hate and a repulsed by but that by taking the queens shilling you are agreeing to do them anyway" - was precisely the position repudiated at Nuremberg. There are some things nobody can be ordered to do. And the best judge of what those things are is not the government, but the conscience of the individual soldier.

Graeme: I think that where the law is grossly immoral, people should follow their own consciences, and law be damned. As a practical matter, this is dangerous, and likely to result in prosecution and punishment. The choice of whether to risk that is of course up to the individual.

History is replete with bad laws (in New Zealand, we have only to look back on the emergency regulations used during the 1951 Waterfront Strike, which made it a crime to provide food to striker's families so they could feed their children). And I think it is entirely appropriate that if the law is bad enough, people ignore it. Furthermore, I think you'd be hard pressed to find someone who actually disagreed with that principle. The disagreements are over how bad a law has to be...

Posted by Idiot/Savant : 4/16/2006 01:24:00 AM

tussock - the judge advocate listened to both sides' arguments over the correct interpretation of the law and determined what he considered to be the correct legal position. As the judge in this trial that's his job. It is not the job of the jury (who aren't legally trained) to determine the law. Had the judge decided that the order was unlawful the prosecution would not have been permitted to argue before the jury their case.

Judge = determines law.
Jury = determines facts.

You might disagree with the outcome, there are a number of reasons to do so (some of which you list). However, this was no show trial: a robust procedure (the correct procedure in the circumstances) was followed - it is entirely inappropriate to argue the legality of an order before a lay jury.

Given that Dr Kendall-Smith's offered no factual defence to the charges the trial proper was basically a foregone conclusion, because the law had already been fully argued and the facts were not disputed.

In a charge of refusal to follow a lawful order there are a number of possible "defences". For example it might be argued that the order was never received, or that the order was actually followed, or that the order was unclear for any of a number of reasons, or that it was impossible to follow the order: all of these matters would be decided by a jury, as they give rise to questions of fact.

Dr Kendall-Smith did not raise any of these defences, or any other defence where there were factual questions to be determined. When someone raises a legal defence it is the judge's job to determine whether it is applicable (and if it is the judge orders the charges dropped).

Examples of legal defences include limitation - some offences have a maximum time limit in which charges can be laid, and if you argue that it was too late then a judge decides it, it never goes to jury. Another example might be 'double jeopardy' - if you argue that you've already been acquitted or convicted of a matter and therefore can't be charged again, a judge decides it not a jury. If the judge decides that your case was not time-barred (perhaps you were counting the days wrong), or you hadn't already been charged with the same offence, then you don't get to argue them again before a jury.

Dr Kendall-Smith had his shot before the judge advocate arguing his *legal* defence and he lost. He is entitled to run that defence again - not before the jury, but before more judges at an appeal.

Posted by Graeme Edgeler : 4/16/2006 01:39:00 AM

I/S: "I think that where the law is grossly immoral, people should follow their own consciences."

I can see that, I guess I just don't think that a law that requires volunteer members of the armed forces to follow lawful orders is grossly immoral.

Posted by Graeme Edgeler : 4/16/2006 01:49:00 AM

Military Families Against the War have launched a petition to free Malcolm Kendall Smith here

Posted by Anonymous : 4/16/2006 09:42:00 AM

> The token support of such puppets is legally meaningless.

This leaves one in an interesting situation.
If you consider a democratically elected government to have no authority (presumably for some reason like "it doesn’t represent the interests of its people") then you are going to find it tough to find any countries that can "legally" make decisions.
Then one has to wonder what happens in all those countries where no one has the legal right to make any decisions.

Acxtualy - it seems that in international law the decisions of even crazy despots are legally meaningful so I think the law avoids the issue above.

Posted by Genius : 4/16/2006 11:04:00 AM

I'm talking about this specific request, please pay attention to context. Anyone who'd said they'd ask the US to leave wasn't allowed to stand for "election", and the US holds the purse strings of government.
That request wasn't made by Iraq's "sovereign" government; they just rubber stamped it as they were told to, just as they do when the US hands them yet another "request" to bomb a city into submission.

AFAICT, he would have been allowed to argue a point of legality to the jury (my act was type A, not type B, is a common defence), only the judge declared that particular law irrelivant to this case.

It leaves soldiers beneith the topmost ranks legally unable to refuse orders to make agressive war, which would seem a very short-sighted precident.

The man could've lied himself into objector status and walked away free. This case isn't about stopping soldiers avoiding the war, it's to crush one man's opinion of the war. Disgraceful.

Posted by tussock : 4/18/2006 02:41:00 AM

Do you mean that people who were engaged in a terrorist war against the state were unable to campaign freely?
Or that they had to sign bit of paper sying that they were not the political agents of a terrorist organization?

I would have hoped you could oppose occupation without being actively involved in killing people.

Posted by Genius : 4/18/2006 10:36:00 AM

Tussock - I've not read the decision, so you ought not quote me, but I believe you may be conflating two issues.

Dr Kendall-Smith offered two defences to the charges brought against him: the first, which I have discussed above, was that the orders were unlawful. It is proper that the validity of such an argument be decided by a judge alone for a number of reasons, including some I've listed above - the legality of an order generally only gives rise to questions of law, not of fact.

The second defence which Dr Kendall-Smith sought to argue, in the event that his first defence failed before the judge, (this time before the jury) might be termed "reasonable belief that the orders were unlawful." The defence would have basically run:
'yes, it turns out that the orders were lawful, but at the time he refused to follow them Dr Kendall-Smith believed they were unlawful, and should therefore be found not guilty.'

This defence would give rise to questions of fact.
1) Did Dr Kendall-Smith actually believe the orders were unlawful?
2) If so, upon what facts known, or believed to be true, by Dr Kendall-Smith at the time did he base this conclusion on
3) Given those facts and understandings was the conclusion reached by Dr Kendall-Smith a reasonable one?

This second defence (unlike the first) had not been argued before, so at the pre-trial hearing the judge-advocate heard arguments about whether such a defence existed as a matter of law. He determined that it did not. I'm not sure of all his reasons for so doing, but in part I expect it could be surmised by the general maxim 'ignorance of the law is no excuse'.

I would suggest that the judge advocate's ruling on this point (whether the second defence existed, and could be put to the jury) is the most hopeful ground for an appeal by Dr Kendall-Smith. I do not think much can be argued about the legality of the particular orders Dr Kendall-Smith was charged with refusing to obey, however I can see several arguments for the contention that 'reasonable belief in the illegality of orders' ought to be an available defence to disobedience charges.

Posted by Graeme Edgeler : 4/18/2006 12:45:00 PM