Thursday, April 13, 2006


Lone Martyr or Tip of the Iceberg?

Flt Lt Dr Malcolm Kendall-Smith has been found guilty of disobeying orders after refusing to go to Iraq last June. This raises several questions, though unfortunately none of them are about his guilt – I don’t see how someone in the armed forces refusing to serve there last year could possibly be found innocent, with British troops now operating in Iraq under a clear UN mandate and by invitation of the Iraqi government. They weren’t legal when they invaded, of course, but that wasn’t the issue in this prosecution. But why is he the one we’ve heard about? Were soldiers who refused to go to Iraq so rare that all their courts martial make headline news? Or has he been singled out for some reason? I simply don’t know enough to tell.

It’s like this. We invaded Iraq illegally, and occupied Iraq illegally. Since then, our presence has been made legal, but it can’t be made legal retrospectively. The problem now is not our illegality but that we’re not helping; waving a wand can stop British forces continuing to break international law, but it can’t stop people in Iraq remembering how our troops got there. We’re part of the problem in Iraq, not helping to solve it, because we invaded illegally and we get the blame for it. That’s because we’re to blame. But the 2003 problem was one of international law, and the current one is one of practical politics. Of course soldiers should be able to refuse an illegal order, but an impractical one? Well, no. When I first heard of this case, like many others I wanted Dr Kendall-Smith to be my hero, but while he may be brave, his case doesn’t stand up.

So I have to wonder why Dr Kendall-Smith has been the only one I’ve heard being found so publicly guilty. Is he the only member of the armed forces to object, and happened to do it at the wrong time? Or have those who objected during the illegal invasion been let go quietly so that the issue of international law can’t be examined in embarrassing hearings?

I note that the Judge Advocate-General refused to hear any testimony on the legality of the war. It’s much more difficult to object to that when it’s plain that it didn’t apply when Dr Kendall-Smith refused to serve. But a full-on refusal to hear the case for a soldier to whom it clearly applied, with the British command structure attempting to force the Nuremberg Defence on him or her rather than permitting soldiers to decide on their legal standing – good grief, we should be saying they have a moral duty to make sure they’re not war criminals, not saying it’s none of their business! – now, that would have been far more threatening to the armed forces and to the Government. Is it cynical to wonder why the only court martial I’ve heard of is one that the Government can point to and say, ‘Look, it’s been tested in court, and it was legal’?

Because, you see, this Government has form on Iraq-related enquiries that find them entirely innocent by virtue of not asking any questions on the things they’re actually guilty of. But in the meantime, thousands of people are still dead, because of an illegal invasion, because of something that wasn’t true. And this feels like another diversion from that.

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