Donna Chisholm / Stuff.co – 2005-10-24 01:00:08

http://www.stuff.co.nz/stuff/print/0,1478,3453386a10,00.html

NEW ZEALAND (October 23, 2005) — Dunedin-trained Royal Air Force doctor Malcolm Kendall-Smith and his Christchurch educated Queen’s Counsel, Philip Sapsford, are challenging the British defence force and government over the legality of the war on Iraq.

Flight Lieutenant Kendall-Smith, 37, is the first officer to face a court martial for refusing to return to Iraq because he believes it is illegal. His defence team will be lead by Sapsford, 57, a specialist in international human rights law who grew up in Christchurch and was educated at St Andrew’s College.

Kendall-Smith is five years into a six-year contract as a doctor with the Royal Air Force and has already been sent on two tours to Iraq. He refused to return to Basra after studying the advice of British Attorney General Lord Peter Goldsmith, who has claimed that coalition forces were administering Iraq without lawful authority.

Yesterday Kendall-Smith’s mother Margaret, who lives in Dunedin, said the family did not want any publicity for fear of jeopardising her son’s case.

She said they were a quiet family who fully supported Kendall-Smith’s challenge. They had received “overwhelming support” from a range of organisations, including Amnesty International.

Those who worked and trained with Kendall-Smith in Otago said he was a deep thinker who was very interested in philosophy and morality at university.

And colleagues at Kinloss base in Scotland said they also supported Kendall-Smith, who had isolated himself in his quarters since being suspended by the Defence Force.

Sapsford is likely to be one of five lawyers working on the case which should be heard early next year. A preliminary hearing will be held on Thursday.

Speaking from Switzerland, Sapsford said he was honoured to represent a fellow Kiwi.

A key issue in the case was whether Britain actually declared war on Iraq, Sapsford said. He drew parallels with the situation of Germans from lower ranks charged at the Nuremberg trials for atrocities committed in World War II, who had defended their actions by saying they were simply following orders.

The question was whether acts were outside the legal confines of an act of war, Sapsford said.

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