Whilst you’d be hard-pressed in the UK now to escape The Sun and Jeremy Clarkson’s campaign for improved conditions and recognition for the soldiers returning from Iraq there is a distinct absence of mention for the former Flight Lieutenant Malcom Kendall-Smith, the court-martialled RAF doctor who refused to follow orders when he was to be deployed to Basra.

Dealing with army casualties is a difficult moral dilemma, for whilst one can feel sorry for anyone whom has incurred injury, the armed forces is one of those professions where such is very much part of the job.  It is, or should be, known as part and parcel of joining up that the principle purpose of the armed forces is armed conflict.  It is therefore somewhat rich that we the taxpayers whilst already paying part of our money for the armed forces should now have to come up with further money for individuals returning from an illegal war and of whom the army has largely washed its hands.  This is of course nothing new, once a soldier is past operational usefulness the army’s ‘resources’ always seem somewhat stretched as the many victims of Gulf War Syndrome can attest to.

The case of Malcolm Kendall-Smith is kept quiet for very different reasons as it raises the very real dilemma many soldiers may face at stages during their career when called upon to participate in military activity that they may not believe in, that may be immoral, illegal or both.  Kendall-Smith had made a considered decision about his moral obligations as to serving in the conflict, having been a tutor in moral philosophy at a New Zealand university, one is to presume he would have considered the arguments very carefully indeed.  After studying the arguments for and against the invasion he declared that he did not want to be complicit in an illegal war and tried to resign from the RAF.  Rather than the usual course of shortening his RAF contract Kendall-Smith told his court-martial “I would, in fact, refuse the orders as a duty under international law, the Nuremberg principles and the law of armed conflict”.  This might seem like a more head above the parapet method than the quiet resignation of his commission but having decided to make the stand I think it is both understandable and laudable that Kendall-Smith chose to take the flack for doing so.  He may not however have anticipated the full fall-out of his decision.

We might have thought that we have come a long way since shooting victims of shell-shock and imprisoning conscientious objectors during WWI and using the COs for slave labour in WWII.  We might also have thought that the days of blind obedience to orders no matter what they were without any thought of consequences were also thankfully over, the Nuremburg Principles following the trials of the Nazis coupled with the Geneva Convention should have ensured this.  However there is still very much a subjective interpretation as to when these principles are applied and this is often decided by the military themselves which is very much a lunatics and asylum situation.

Although Principle IV of the Nuremberg Principles states that acting under orders of a “Government or of a superior does not relieve him from responsibility under international law,” the judge advocate in the court-martial case, Jack Bayliss, rejected Kendall-Smith’s claim that by serving in Iraq he could be complicit in a crime of aggression. Such a crime “cannot be committed by those in relatively junior positions such as that of the defendant. If a defendant believed that to go to Basra would make him complicit in the crime of aggression, his understanding of the law was wrong,” Bayliss said.  Furthermore he accused Kendall-Smith of an “amazing arrogance” and said the sentence was intended to make an example of him.  “Obedience of orders is at the heart of any disciplined force.  Refusal to obey orders means that the force is not a disciplined force but a disorganised rabble.  Those who wear the Queen’s uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences.

Kendall-Smith was found guilty on all five charges of disobeying orders, and sentenced to a penalty of eight months in prison. As well as the jail sentence, which he served in a civilian prison, Kendall-Smith was ordered to pay £20,000 towards his defence costs, which had been covered by legal aid which was to come from his personal savings of £20,000.  The campaign to help him pay these punitive charges received no media attention whatsoever.  Kendall-Smith himself was released in June 2006 under curfew until September and banned from speaking to the media until December.  There is no record of his case in the mainstream media after this point.

At the same time a similar case was being heard in Canada denying refugee status to an American soldier who wished to conscientiously object.  Jeremy Hinzman was told by the judge, Justice Anne Mactavish that “An individual must be involved at the policy-making level to be culpable for a crime against peace … the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.”  These two statements from judges are especially interesting because there is nothing in the actual Nuremberg principles that states this and therefore their information must come from elsewhere, but where, it is not cited in their speeches and must one presumes be a legal interpretation and not a binding legal principle.

This is of course a completely different logic to that used at the trials in the aftermath of the holocaust.  In the Nuremberg trials if it was asserted that one could have known what was taking place then the lack of active participation was not a defence, thus the directors of Krupp AG and IG Farben were convicted of war crimes even though they themselves were not the ones who used the cannisters of Zyklon B that had been manufactured.  Likewise many SS officials who could not be proven to have taken active part in mass slaughter were complicit in knowing that such actions had been taking place without themselves doing anything to stop it.

At what point therefore does one become of low enough rank not to have to face up to the moral questions that implementing an order might present?  People still accuse ordinary German citizens during the 1940s as having been complicit in the holocaust because “they must have known what was going on and they did nothing to stop it.”  However how many people here have sought to speak out over extraordinary rendition, or the internees at Guantanamo Bay, Bagram Air Base or Abu Gharaib prison?  The fact is we have become very complacent with our rights and we assume they will always be protected, Germany shows quite clinically how this can very quickly become the case, and it does so in the context of an increasingly galvanised nationalism on the back of a disastrous economic climate.

Ring any bells?

Song Of The Day ~ The Boxer Rebellion – Semi-Automatic