AN RAF medical officer who refused to return to Iraq for a third tour “honestly” believed that the British military campaign was illegal, a court martial hearing was told yesterday.

Flight Lieutenant Malcolm Kendall-Smith, 37, who is facing five charges of failing to comply with a lawful order, decided that it was his duty to disobey the order, his lawyer said during a pre-trial hearing at Aldershot, Hampshire.

The military doctor had refused to take part in any of the pre-deployment training, but Philip Sapsford, QC, for his defence, said that because Iraq had not attacked the United Kingdom or any of its allies there was no lawful reason to invade the country.

Flight Lieutenant Kendall-Smith had served two tours of Iraq but had a change of mind after reading all the published material relating to the legal advice given to the Government before the decision to join the Americans in invading Iraq. The advice by Lord Goldsmith, QC, the Attorney-General, was finally made public in April last year.

Mr Sapsford said that Flight Lieutenant Kendall-Smith had faced a legal rather than a moral dilemma when he was asked to return to Iraq for a third time. He had concluded that the invasion had done nothing to protect British lives and had destroyed the lives of many thousands of Iraqis.

Although he was a doctor in a non-combatant role, he feared that he could be asked to oversee legally ambiguous situations such as interrogations of prisoners. “The flight lieutenant has been to Iraq, he knows in his own mind what it is like being there. As a doctor, he is entitled to say, ‘I will be sharing responsibility by even demonstrating complicity’.”

Mr Sapsford said that he was prepared to produce expert evidence to show that an existing United Nations Security Council resolution that the United States and Britain claimed was a mandate for the invasion was no defence in international law.

He told the hearing, which was presided over by Assistant Judge Advocate Jack Bayliss, that he was considering calling as a witness Ben Griffin, a former SAS soldier, who recently resigned from the Army after complaining of “illegal” acts by American troops in Iraq. Although he had expected to face court martial, he left the Army with a glowing testimonial.

For the prosecution, David Perry said that questions about the legality of the invasion in March 2003 were irrelevant.

The charges, he said, related solely to orders given to Flight Lieutenant Kendall-Smith: on June 1 last year he had refused to attend RAF Kinloss for pistol and rifle training, on June 6 he had failed to go for a helmet-fitting, and between June 12 and June 24 he not not turned up for a training course, or for a deployment briefing on June 30.

“To suggest that sending a member of the Armed Forces for pistol training is in some way unlawful would be an astonishing, if not startling, conclusion,” Mr Perry said.

He also said that from May 2003 (after the end of the war phase) the multinational force in Iraq was present at the request of the provisional government in Baghdad and had been mandated by the UN Security Council to assist in restoring peace and stability.

The hearing was adjourned until next Wednesday.

Explore Law

• Columnists

• Law Panel

• Law Reports

• Student Law

Times Recommends

• The best legal yarns this Christmas
• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers