posted
Or he'll face jail time for refusing to go back, that is. Article in The Times
quote: Flight-Lieutenant Malcolm Kendall-Smith is to be court-martialled for “refusing to obey a lawful command” after he told his commanding officer that he would not go to Basra.
He is the first British officer to face criminal charges for challenging the legality of war.
Kendall-Smith, 37, unit medical officer for RAF Kinloss in Morayshire, has been decorated for his role in support of military operations in Afghanistan and for two previous tours in support of the RAF in Iraq. [...] A central part of Kendall-Smith’s legal case will be the manual of RAF law which states that a serving officer is justified in refusing to obey a command if it is illegal. His lawyers will also argue that his commission, granted by the Queen, requires him to act according to “the rules and discipline of war”.
International lawyers have argued that there was no legal justification for invading Iraq because Britain and America failed to wait for the United Nations to pass a second resolution specifically sanctioning military force.
I have to head off to work now, but thought this was an interesting story and wanted to hear everyone's thoughts on it. See you later.
posted
Since the recognized government of Iraq wants us there as of right now, his case may be very weak.
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This is Rusta-burger's (Mitch's) girlfriend by the way.
He better be a darn fine lawyer himself if he's going to have any chance to win this. That is, lots of legal professionals spout this argument and are ignored, but if he himself isn't going to show that he knows what he's talking about I don't think he has any hope of winning.
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quote:Since the recognized government of Iraq wants us there as of right now, his case may be very weak.
It wouldn't be hard to argue that the "recognized" government of Iraq is the result of an illegal war and occupation and therefore irrelevant.
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Yes it would, for a variety of reasons, not the least of which (again) is that War resulting from the invasion of Kuwait never ended. I'm not an expert on any kind of law, but I think he's going to have to prove that the initial invasion of Iraq was illegal to even make his point of an "unlawful war". Beyond that, though, the specific command he's disobeying-- Go to Basra -- is a lawful order whether or not the ouster of Hussein was legal under international law. He might have a stronger case if he deployed and then refused to take up arms... but as it is, I don't think he has a snowball's chance in hell with a military jury.
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quote:Acting under Chapter VII of the Charter of the United Nations, 1. Endorses the formation of a sovereign Interim Government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional Government of Iraq assumes office as envisaged in paragraph four below; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty;
quote: Intervention by invitation [3] essentially involves the consent by an inviting state to justify action that would, absent such consent, violate the U.N. Charter's prohibition on the use of force. [4] Only where the inviting government is recognized as embodying the sovereign rights of the state will an invitation therefrom provide a legal basis, in and of itself, for military action according to the terms of the invitation.
On June 30, the sovereignty exercised by the interim Iraqi government will not be complete in the Westphalian sense, [5] since the government will not, at the time of its creation, effectively control the territory of Iraq. In the era prior to the adoption of the U.N. Charter, the degree of territorial control would have determined the legality of any invitation issuing from a government. This determination, made by what were called the “standards of belligerency,” was a corollary to the “effective control test,” by which governmental recognition depends on territorial control. By operation of these standards, a government that controlled the vast majority of its territory, though fighting a rebellion, could legally invite outside intervention, while one that faced an established insurrection could not. Instead, a "revolutionary government which [wielded] effective power, with a reasonable prospect of permanency, over the whole—or practically the whole—territory of the State [was] entitled to recognition." [6]
Since the adoption of the Charter, however, in situations involving civil wars—where governmental legitimacy is most challenged—the government representing the state at the United Nations has been deemed to possess sufficient external legitimacy to legally invite foreign military intervention. This construction may be inferred from the judgment of the International Court of Justice in its well-known Military and Paramilitary Activities case, where the Court distinguished between permissible intervention at the request of the U.N.-recognized government and impermissible intervention at the request of the opposition in a situation of struggle for control of the country. [7] Perhaps recognizing this, Security Council Resolution 1511 referred to the exercise of Iraq’s sovereignty, determining that the Iraqi Governing Council “embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the [Coalition Provisional] Authority.” Now that the Iraqi Governing Council has itself dissolved, there is a gap in bodies capable of exercising Iraqi sovereignty.
The Security Council is currently considering a new resolution on the authority of the interim Iraqi government that will begin to function on June 30. If the resolution explicitly decides that the interim Iraqi government exercises the sovereignty of the state of Iraq, it would authoritatively impart external legitimacy upon that government. [8]
posted
Except that the invasion began before June 1, 2004. The sovereign government BEFORE June 1, 2004 clearly did not ask to be invaded. Thus contributing now to a war effort that was initially illegal could be considered to be contributing to that crime.
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quote:Except that the invasion began before June 1, 2004. The sovereign government BEFORE June 1, 2004 clearly did not ask to be invaded. Thus contributing now to a war effort that was initially illegal could be considered to be contributing to that crime.
Nope. He was asked to go back NOW, not then. And the UN has specifically recognized that the Coalition forces are there on invitation.
He's got no legal standing based unless there's something specific in British military rules or in a non-UN source of international law.
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NOW could be very easily viewed as an extension of THEN though. If a war begins illegally, can the same war become legal midstream if a new party comes into power and then requests the invasion? If the North Koreans invade South Korea, install a Communist government, and then has that new South Korean government request that the invasion continue, does this justify the war? Even if the U.N. recognizes the new government, I'm not sure the U.N. has the power to make that war legitimate once it has begun illegally.
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Such as the EU Charter, which can and has been used to override member state's national laws. And the UnitedKingdom recognizes the sovereignty of the WorldCourt in matters concerning human rights.
So the Flight-Lieutenant may well be cannier than the "naif-with-a-cause facing legal and political lions" being depicted. Note that Malcolm Kendall-Smith isn't putting the legal battle in terms of being a concientious objector, which the British military might be forced to concede for various political reasons. Instead, he is challenging his orders to deploy on the legality of the IraqWar itself. Kendall-Smith may well be relying on losing the legal battle in the UK to gain grounds to challenge his conviction before the EU judiciary and/or the WorldCourt.
Whether the EuropeanUnion courts and/or the WorldCourt will be willing to risk the political fallout of asserting jurisdiction Even governments which strongly support those courts and the which strongly oppose the IraqWar may have doubts about the wisdom of allowing non-citizens to have that degree of control over their own militaries.
And should the EU courts and/or the WorldCourt decide that Kendall-Smith's convinction be overturned on the grounds that the IraqWar is illegal, the matter can't end with as little as Kendall-Smith's full re-instatement a flight-lieutenant in the British military. Such a judgement would leave the UK government facing a MAJOR dilemma: recognize the IraqWar to be illegal, or delegitimatize the EU and the WorldCourt.
Of course, complying with such a judgment might be a way for the UK to withdraw its forces from Iraq -- such an action already supported by a super-majority of voters, and so staying in Iraq is a political headache for the two major political parties -- without appearing to be willfully betraying its ties with the US.
But even IF the UK government were to be secretly wishing for such a backdoor out of Iraq, the British may well feel compelled to ignore that judgment. eg What if Argentina once again invades the Falklands, and the WorldCourt decides that it would be illegal for the UK to go to war to defend its territory? In that scenario, it would have been better for the UK to have never have granted legitimacy to the WorldCourt's assertion of sovereignty over national militaries.
look y'all, this is not going to be tried in a civilian court. There, an activist judge might be willing to stretch or redefine laws and interpretations to the favor of our intrepid leftenant. This is going to be tried in a Courts-Martial, however, and I guarantee you there will be ZERO inclination on the part of a military judge and jury to play politics or tolerate the use of their court to do so.
This man is going to be judged strictly on the basis of his orders: Deploy to Basra in support of and at the request of the current regime. That *is* a lawful order, regardless of the legitimacy of the current regime. Period. It's not ambiguous. And he will be drawn and quartered. Not because I'm a rabid right-winger, but because military courts will take every opportunity to avoid making a political statement.
Does anyone seriously think that some crusty old colnel is going to preside over this case and say "oh, you know.. I never thought of it that way, let's take on the entire British and US governments and cause a major political stir because, by Jove, this young man has a point I never considered before!"?
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quote:NOW could be very easily viewed as an extension of THEN though. If a war begins illegally, can the same war become legal midstream if a new party comes into power and then requests the invasion? If the North Koreans invade South Korea, install a Communist government, and then has that new South Korean government request that the invasion continue, does this justify the war?
Depends. Did the UN recognize the new government? Further, the relevant question isn't "was the invasion justified?" It's, "Is the current presence of troops justified?"
The request of a recognized government makes the answer to the second question, "Yes."
quote:And the UnitedKingdom recognizes the sovereignty of the WorldCourt in matters concerning human rights.
And the World Court precedent is the one that says UN recognition of a government is sufficient to grant it authority to invite foreign troops.
Once again, the question is NOT "Was the invasion legal at the time?" The question is "Was the presence of British troops in Iraq at the time the order was issued legal?"
This is a legal proceeding. There is a standard for whether a government is considered legitimate. This government was installed through a democratic process, many of the people elected are fairly hostile to the US and British presence, and the UN has recognized it.
Should be enough right there, based on ICJ precedent and UN policy.
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British HighCourts do have the right to review courts-martial. The EU courts do have jurisdiction inregard to human rights violations within member nations, including violations by their militaries. And the WorldCourt does have jurisdiction inregard to military violation of human rights over signatories to the Convention which established the body.
British HighCourts are as reluctant to override military tribunals as the USSupremeCourt. And like the USSupremeCourt, it has done so in the past, could do so in the future.
For EU courts and the WorldCourt, the member or signatory nation's judiciary has the first right to handle such alleged violations. IF the plaintiff can convince the courts that there is a reasonable likelyhood that their own nation's decision on their own case was wrong, the international judiciaries may decide to take jurisdiction over the matter.
Are either of the two likely to do so for this case? No, any case regarding the right of a nation's military to discipline its own soldiers is a MAJOR pile of politically fused dynamite. No, any case regarding the right of nations to conduct their own foreign affairs is a MAJOR source of political fire. Combine the two in a ruling against a member nation or a signatory -- which a ruling agreeing with Kendall-Smith would do -- and the result could be an explosion which destroys the Court making such a ruling. Unlike the USSupremeCourts, the BritishHighCourts, or the various supreme courts which preside over their respective nations, the EU courts and the WorldCourt do not have a strong&lengthy tradition of adherence-even-in-disagreement to their decisions on human rights. A ruling which "presumes too much" on their "right" to overrule national sovereignty could cause that "right" to be revoked, and the charters of those courts to be terminated.
Like I said, it's a matter of whether the international courts feel strongly enough about the issue that they would take the case under their purview when they know what the political consequences might be. I don't think they are currently willing to get into such a knife fight with a national government: not soon, and not on this particular case. But they are going to have to take on an equally nasty case someday. So they might surprise me.
Remember, the USSupremeCourt won its preeminence solely by asserting its claim to preeminence on equally explosive issues, and not because it had the guns&soldiers to back up their decisions.
posted
Sorry, Dagonee, your response to me had yet to be posted before I wrote&posted my previous thoughts.
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quote:If a war begins illegally, can the same war become legal midstream if a new party comes into power and then requests the invasion?
If an invasion must be requested, then very few wars have ever been legal. Although I can honestly say that I don't understand this concept of an illegal war. Right and wrong perhaps, but I don't think that legal/illegal work here.
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posted
I've kind of been lurking in my own thread here, just wanted to read everybody's thoughts. But here's an extension of some of the (rather good) points Jim-Me brought up: Kendall-Smith is a medical officer. So even if the current mission he was ordered to redeploy as part was definately proven to be illegal, is he being ordered to perform any illegal actions?
I'm not sure how well I'm phrasing what I'm trying to get at here. As I understand it, he's justified in refusing a command which is illegal or ordering him to do something illegal. But if he is just tending wounded and not personally participating in combat, he still wouldn't be doing anything illegal even IF the war was illegal. (I think.)
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Even governments which strongly support those courts and the which strongly oppose the IraqWar may have doubts about the wisdom of allowing non-citizens to have that degree of control over their own militaries.
