Hey there! Sign in to join this conversationNew here? Join for free
x Turn on thread page Beta
    Offline

    0
    ReputationRep:
    (Original post by GR4pilot)
    Looking at Kendal-Smith's argument I think some of the comments made are a little unfair. I know that he was convicted of cowerdice but his piont is a fair one; the war with Iraq was of definately questionable legality - the commission holds him to refuse illegal orders etc etc. So if this were to have happened at the outbreak of war or before I believe he would have been justified.

    However as far as all were concerned at the time the war was perfectly legit; and this little episode didn't happen until after the war proper had ended and a legal UN action was in progress. Thus Kendal-Smith wasn't disobeying an illegal order (as would arguably have be the case in 2003) but a legal one - thus it was totally justified to kick him out.
    The following lifted from PPruNe explains the legalities, I believe.

    Those in this forum linking this case to the legality or otherwise of the war and subsequent occupation should refresh their understanding of the laws of arm conflict not rely on ill-informed media comment. There is a difference in the laws of armed conflict between the legality of a war (Jus ad belllum)and the legal conduct of a war (Jus in bello). The first is the realms of the leaders of a nation the second is the realms of the military. See my earlier posts - the military can conduct an illegal war legally (ie within the laws of armed conflict) without fear of prosecution. This is set and was reinforced by Nurenburg (ir the Nuremburg Principles do not apply here). In Nurenburg it was only the leaders of Germany who were tried on the legality of the war. The remainder were tried for breaches of the rules of war - the precedent is that if you are given an illegal order (ie do somethingthat is contrary to the rules of war) then you are not to carry it out. As the JA confirmed, the orders given in this case were legal.
    Offline

    0
    ReputationRep:
    Yes, absolutely - In the Kendal-Smith case the orders were legal - however this may not have been the case had the case been tried in 2003 given the knowledge that we now have.
    Offline

    2
    ReputationRep:
    He's a doctor, he'll be fine, he can get a job virtually anywhere and will forget about the armed forces in a flash. If you ask me, it's the armed forces's loss as they are massively short on doctors, I wonder why
    Offline

    0
    ReputationRep:
    (Original post by Inkerman)
    He's a doctor, he'll be fine, he can get a job virtually anywhere and will forget about the armed forces in a flash. If you ask me, it's the armed forces's loss as they are massively short on doctors, I wonder why
    We don't need doctors like that though
    Offline

    0
    ReputationRep:
    (Original post by GR4pilot)
    Yes, absolutely - In the Kendal-Smith case the orders were legal - however this may not have been the case had the case been tried in 2003 given the knowledge that we now have.
    The point is that international law protects the armed forces engaged in war by differentiating them from the leaders of the state that declares that war or 'resumes hostilities' in the case of Iraq.

    It doesn't matter when Kendall-Smith would have been tried:the orders he recieved were legal then and they are still legal now. The order was to deploy. Even had the war been deemed illegal under international law the order K-S recieved was still legal as it did not contravene the international laws that govern armed conflict. If you are in an illegal war the armed forces can conduct it legally by adhering to the laws of armed conflict i.e. not wasting innocent civillians etc.

    This is where the 'Nuremberg defence' comes in. As an officer/soldier you can't claim that you were obeying orders to commit an illegal act as defined under the laws i.e. German guards executing prisoners. However, it is not illegal to deploy to another country in support of your forces, which was what K-S was tasked to do. The only people responsible for the legality of the war, and the only people that can be tried for waging an illegal war are the leaders of the invading state and top general staff.
    Offline

    0
    ReputationRep:
    You've cited the law quite effectively - however you are missing my point, the fact that K-S or any other wouldn't have been held to account if the war was deemed illegal does not detract from the point that it his duty to refuse to partake in an action which has not been entered into legally by the governing polititcians.
    Offline

    0
    ReputationRep:
    (Original post by GR4pilot)
    You've cited the law quite effectively - however you are missing my point, the fact that K-S or any other wouldn't have been held to account if the war was deemed illegal does not detract from the point that it his duty to refuse to partake in an action which has not been entered into legally by the governing polititcians.
    I don't quite understand your point. The point of the laws of armed conflict are to allow servicemen to execute their orders irresepctive of legality. Where, in international law, is it stated that as a commissioned officer you are duty bound to consider the legality of the conflict? A legal order is irrefutable. Effectively, as a servicemen, you must satisfy yourself that your conduct 'on the ground' is legal; not that your presence there is legal or otherwise.
    Offline

    0
    ReputationRep:
    But I'm not thinking of international law but the duty that HM Officers have to the Queen to refuse to partake in illegal operations. Thus although by international law the Officer my be free of responsibility s/he is duty bound by his/her Commission to refuse.
    Offline

    0
    ReputationRep:
    (Original post by GR4pilot)
    But I'm not thinking of international law but the duty that HM Officers have to the Queen to refuse to partake in illegal operations. Thus although by international law the Officer my be free of responsibility s/he is duty bound by his/her Commission to refuse.
    Surely the law is there to prevent individual officers having to make such decisions: they are, in fact, instruments of the state.
    Offline

    0
    ReputationRep:
    No; instruments of Her Majesty. I may be wrong, but i remember back in Sept/Oct time when K-S first refused the order the Times did a story on it and the various laws surrounding it. Also, if the RAF expects its NCA Sgts to be able to turn round to Air Rankers and ask them to turn off their laptops, phones etc on a/c, why shouldn't it expect its middle Officers to highlight illegalities in govt conduct?
    • Community Assistant
    • CV Helper
    Offline

    19
    ReputationRep:
    Community Assistant
    CV Helper
    You are both confusing different points of the Laws of War. There are two different elements to both the moral and legal aspects of war, know as Jus ad Bellum and Jus in Bello. They work in partnership, and both must be satisfied for a war to be deemed Just, that is both moral and legal.

    Jus ad Bellum, refers to the moral legitimacy and separately the legality of going to war, ie making the decision and justifying it. This decision is not the responsibility of individual persons, exept at the level of political and military leadership. Kendall Smith would not have been held in any way responsible for taking part in operation in Iraq under Jus ad Bellum laws, he holds neither legal, nor moral responsibility.

    Jus in Bello refers to both the moral and legal conduct of war, ie it occurs once a Jus ad Bellum justification has been made. Jus in Bello concerns issues like not massacring civilians. This is where an individual does have responsibility for their actions, and if ordered to do something that they believe contravenes the principles of Jus in Bello, then they have both a moral and legal obligation not to obey that order. Had Kendall Smith gone to Iraq, and then been ordered, for example, not to treat Iraqi soldiers brought in to the hospital, he could have legitimately refused that order. (not a good example, because for several medical/legal reasons he could also have refused, but hopefully you get my drift).

    Hope that makes things a bit clearer.
    Offline

    0
    ReputationRep:
    Boys and girls - the point about Kendall-smith is not about war's legality - he simply refursed a direct order to undertake mandatory military training. That is it. The entire case is not about the legality of the war in Iraq, it is about an officer who disobeyed a direct order. He was not ordered at any time to go to Iraq. The legality issue was an attempt by his defence team to deflect what he was being Court-martialled for - that is why the presiding judge refused any witness that was there to speak out about the legal issues surrounding the war. That is why Kendall-smith was almost charged for contempt of court when he started to argue with the judge about the Iraq war.

    This is a very simple case. Even if he had been given the same directive in 2003 in the build up/immediatly before the war in Iraq, we would still have seen the same outcome - guilty for disobeying a direct order not to undertake mandatory military training.
    Offline

    0
    ReputationRep:
    (Original post by threeportdrift)
    You are both confusing different points of the Laws of War. There are two different elements to both the moral and legal aspects of war, know as Jus ad Bellum and Jus in Bello. They work in partnership, and both must be satisfied for a war to be deemed Just, that is both moral and legal.

    Jus ad Bellum, refers to the moral legitimacy and separately the legality of going to war, ie making the decision and justifying it. This decision is not the responsibility of individual persons, exept at the level of political and military leadership. Kendall Smith would not have been held in any way responsible for taking part in operation in Iraq under Jus ad Bellum laws, he holds neither legal, nor moral responsibility.

    Jus in Bello refers to both the moral and legal conduct of war, ie it occurs once a Jus ad Bellum justification has been made. Jus in Bello concerns issues like not massacring civilians. This is where an individual does have responsibility for their actions, and if ordered to do something that they believe contravenes the principles of Jus in Bello, then they have both a moral and legal obligation not to obey that order. Had Kendall Smith gone to Iraq, and then been ordered, for example, not to treat Iraqi soldiers brought in to the hospital, he could have legitimately refused that order. (not a good example, because for several medical/legal reasons he could also have refused, but hopefully you get my drift).

    Hope that makes things a bit clearer.
    Yes it does. Subtle but important difference. Good post and thank you.
 
 
 
Reply
Submit reply
Turn on thread page Beta
TSR Support Team

We have a brilliant team of more than 60 Support Team members looking after discussions on The Student Room, helping to make it a fun, safe and useful place to hang out.

Updated: April 20, 2006
Poll
Do you agree with the proposed ban on plastic straws and cotton buds?
Useful resources

Articles:

Guide to the armed forcesGuide to the Royal Air ForceA job in the Army

Featured recruiter profiles:

Army logo

The Army is recruiting now

"With hundreds of roles available, there’s more than one way to be the best."

Quick Link:

Unanswered Armed Forces Threads

Groups associated with this forum:

View associated groups

The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

Write a reply...
Reply
Hide
Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.