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bayliss  court martial  court  international law  invasion iraq  invasion  iraq  judge advocate  kendall smith  kendall  martial  smith 
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Manchester Evening News

Updated: 2014-10-02T21:36:33.448-07:00


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European National Newspapers Albania Andorra Austria Belarus Belgium Bosnia Herzegovina Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland Former Yugoslav Republic of Macedonia France Germany Gibraltar Greece Hungary Iceland Ireland Italy Latvia Liechtenstein Lithuania Luxembourg Malta Moldova Monaco Montenegro Netherlands Norway Poland Portugal Romania San Marino Serbia Slovakia Slovenia Spain Sweden Switzerland Ukraine United Kingdom Vatican City ALL OF EUROPE About Us | European National Newspapers | European Search Engines | [edit] Pre-trial hearing in a statement to the court martial at a pre-trial hearing in Aldershot, on 15 March 2006, Kendall-Smith said: "I am a leader. I am not a mere follower to whom no moral responsibility can be attached."[1] "It seems to be the thrust of your argument that the initial invasion of Iraq was unlawful, and that nothing that was done subsequently has made the presence of British forces lawful," said presiding judge advocate Jack Bayliss. Kendall-Smith nodded.[4] Philip Sapsford, QC, defending, told the court martial: "The flight lieutenant is entitled to advance before this tribunal that the use of force in Iraq was unlawful in international law," essentially reasoning that Kendall-Smith should be allowed to argue that any participation in the war effort was therefore unlawful.[1] Sapsford added that the defence team was prepared to produce expert evidence to show that UN Resolution 1546, relied upon by the UK and U.S. governments to justify the 2003 Invasion of Iraq, was no defence in international law.[3] Sapsford also said he was considering calling former SAS soldier Ben Griffin, who recently resigned because of his objections to the war, to give evidence.[3] Prosecutors argued that the legal questions surrounding the invasion of Iraq were irrelevant and that the case should centre only around the official orders given to Kendall-Smith. Prosecutor David Perry argued that at the time Kendall-Smith refused to deploy, the invasion itself was over and British forces were in Iraq with the authority of U.N. Security Council resolutions passed after Saddam's fall.[4] A ruling on 22 March 2006, by the judge advocate Jack Bayliss, concured. Bayliss dismissed Kendall-Smith's argument, ruling that he must face trial by court martial and will not be allowed to argue that the order to deploy was illegal.[5] Obviating Kendall-Smith's argument that any participation in the war effort was unlawful on the basis of an illegal invasion, Bayliss asserted that British forces had full justification under U.N. resolutions 1511 and 1546 to be in Iraq at the time the charges were filed against Kendall-Smith in June and July, 2005.[6] Although Principle IV of the Nuremberg Principles states that acting under orders of a "Government or of a superior does not relieve him from responsibility under international law," the judge advocate also rejected Kendall-Smith's claim that by serving in Iraq he could be complicit in a crime of aggression. Such a crime "cannot be committed by those in relatively junior positions such as that of the defendant. If a defendant believed that to go to Basra would make him complicit in the crime of aggression, his understanding of the law was wrong," Bayliss said.[6] [edit] Court-martial A Court-martial in Aldershot acted from 11 April to 13 April 2006. Kendall-Smith was found guilty on all five charges of disobeying orders, and sentenced to a penalty of eight months in prison. As well as the jail sentence, which he serves in a civilian prison, Kendall-Smith was ordered to pay £20,000 towards his defence costs which were covered by legal aid. The court heard that he had personal savings of £20,000. Kendall-Smith will also be dismissed from the Service. [edit] Post-Trial Statement Shortly after the Court-Martial passed sentence, Kendall-Smith made the following statement: "I have been convicted and sentenced, a very distressing experience. But I still believe I was right to make the stand that I did and refuse to follow orders to [...]