Kiwi in UK courtmartial drama
By Jonathan Milne
Somehow, in the undisciplined hubbub as the courtroom emptied for the lunch
break, one man went unnoticed. Alone, of the uniformed Air Force personnel in
the room, he stood and saluted the judge.
That man was Flight Lieutenant Malcolm Kendall-Smith, the New Zealander who has
put the British armed forces and Government on edge with his studied conclusion
that the war in Iraq breaches international law - and so he will not serve in
Amid the barracks and parade grounds of England's Aldershot garrison town,
southwest of London, the officer stood almost a head above others in the cramped
military courtroom, his Cossack-blue dress uniform crisp, his back unrelentingly
straight like the portrait of a youthful Queen Elizabeth II on the wall behind
Kendall-Smith's explanation can be made public for the first time: he believes
that by serving in an "illegal war" on Iraq, he would be complicit in
acts such as the torture of prisoners at Abu Ghraib prison.
"Personal responsibility accrues vicariously by the participation in acts
of aggression," he is prepared to tell a full general court-martial next
"I am a leader. I am not a mere follower to whom no moral responsibility
can be attached."
His evidence was disclosed by defence barrister, Philip Sapsford, QC, in a last
attempt to persuade Judge Advocate Jack Bayliss to drop five charges of
Kendall-Smith sat silent and serious as prosecution and defence lawyers cited
the Nuremberg war crimes trials in argument as to whether an officer could
legitimately excuse himself from responsibility by saying, "I was only
He did not flinch as Sapsford argued that American President George W. Bush and
British Prime Minister Tony Blair could not be relied upon to tell the truth
about the illegality of their war.
Judge Advocate Bayliss will announce his verdict on Thursday, but seems almost
certain to order a full court-martial hearing before a jury.
That trial would be at the big new court martial centre at Bulford on the
Salisbury Plains, before the world's media. In Aldershot, by comparison, it
seemed almost as if the Ministry of Defence had chosen to forget the public
interest in the precedent-setting case.
Only an hour down the railway line from Waterloo, Aldershot was dismal, as
military bases often are. The ground was grey; the trees were thin and grey; the
clouds were thick and grey. Standing outside the brick courthouse, the only real
colour was the yellow flag hanging above the Division 4 HQ next door.
Kendall-Smith is based at the even chillier Kinloss base in Scotland, where he
has been living in virtual seclusion, eating alone, entering the barracks by a
separate door, since he was charged in May last year.
Born and schooled in Brisbane, he moved to New Zealand to study medicine at
Otago University. He took the country to his heart: he became a New Zealand
citizen, and his parents remain in Dunedin. Concurrent with his medical degree,
he took diplomas in philosophy, writing on the secular and rational morality of
He travelled to Britain where he joined the RAF as a Flight Lieutenant in August
2000 on a six-year short-service commission. He served in Oman in 2002,
supporting the Afghanistan operation; then was stationed at the RAF's Kuwait and
Qatar bases supporting the Iraq invasion the following year.
After returning to Scotland, he read a legal opinion from Britain's
Attorney-General, Lord Goldsmith, that challenged the legal basis for the
invasion of Iraq. Perturbed, he kept schooling himself in the laws of war, and
became convinced he could not participate any further in the conflict. And so,
when the Air Force doctor was ordered in May last year to attend pistol and
rifle training, in preparation for deployment to Basra, he refused. In the
following days, he refused further orders to attend a helmet-fitting session, an
initial response training session, and a deployment briefing.
And finally, he refused an order to replace a squadron leader in Basra, arriving
no later that July 12.
He was present and punctual this week at his Aldershot hearing: he rose early at
his central London hotel and then travelled to Aldershot. He walked in the front
gate of the court, eyes front past the television cameras, carrying his uniform
jacket in a suit bag.
"Please would the service members remove their head dress if they wish to
do so," the judge said. Kendall-Smith, seated on a straight-backed chair in
the middle of the room, adopted the posture that he would maintain for a long
day of dry legal arguments: knees apart, as if in a rugby team photo. And back
At the lunch break, the flight lieutenant retired to a back room with his legal
team, where he nibbled on a couple of nectarines.
By four o'clock, the hearing - set down for four days - was over. The Judge
Advocate had heard all he needed. Kendall-Smith stood, saluted, packed his
jacket back into its suit bag, and walked out the gate.
Next month, he may not be so fortunate. Though there are signals that the
prosecution could hold back from pressing for a jail sentence in such a
politically explosive case, the court will nonetheless have the power to impose
Some politicians might be happy to sweep such an embarrassing case quietly under
the carpet. But Kendall-Smith's comrades-in-arms may not be so forgiving of a
New Zealand flight lieutenant, a doctor, a philosopher, who wields not a
standard-issue rifle but his own moral compass.
- HERALD ON SUNDAY