Army - Court martial tragedy
WORKERS, MAY 2006 ISSUE
A court martial panel has sentenced Flight Lieutenant Malcolm Kendall-Smith to eight months in jail for refusing to serve in Iraq. The panel said that Kendall-Smith could not "pick and choose" which orders he obeyed.
But international law rejects the "Nuremberg defence" in which the defendant claims they were only obeying orders. Nuremberg Principle IV states, "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
That is, members of the armed forces are obliged to "pick and choose", to obey lawful orders and to disobey illegal ones.
Was the order to serve in Iraq legal? The UN Charter permits the use of force against a sovereign state only in self-defence against an actual, armed attack. As UN Secretary General Kofi Annan said of the war on 16 September 2004, "I have indicated it is not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal."
Since the war on Iraq was illegal, the consequent occupation is illegal. As the Attorney-General wrote in his Confidential Note to Blair of 26 March 2003, "It must be borne in mind that the lawfulness of any occupation after the conflict has ended is still governed by the legal basis for the use of force." There was no legal basis for the attack, so the occupation has no "lawfulness". Contrary to government claims, Security Council Resolution 1483 of 22 May 2003 has not legitimised the invasion or the occupation: it merely called on the occupying powers to conduct the occupation in accordance with international law.
In other words, the Blair government's invasion and occupation of Iraq are illegal, so orders to serve in Iraq are illegal. This case is not over yet, not by a long way.