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UK court-martial over Iraq refusal

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Kendall-Smith faces five charges of failing to comply with a lawful order.

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LONDON, England -- A British military officer who refused to serve in Iraq because he believed it was unlawful has been told by a judge he must face trial by court-martial.

Judge advocate John Bayliss made the ruling on Wednesday against Flight Lt. Malcolm Kendall-Smith, a Royal Air Force medic, at a court-martial center in the southern English garrison town of Aldershot, where a pretrial hearing was held last week.

Kendall-Smith faces five charges of failing to comply with a lawful order after he refused to take part in training and deployment to the southern Iraqi city of Basra.

The 37-year-old, who has dual British/New Zealand citizenship, had already served two tours of duty in Iraq but refused to return there last June.

At last week's hearing, Kendall-Smith's defense counsel Philip Sapsford QC said the officer believed that because Iraq had not attacked the UK or one of its allies there was no lawful reason to enter Iraq.

On that basis he argued that Kendall-Smith was entitled to disobey the "unlawful" orders.

"The flight lieutenant's case is that Iraq was and remains under occupation," Mr Sapsford said.

"He is entitled to say to this tribunal, 'I hold that belief honestly and in these circumstances it's my duty to disobey these orders'."

But the judge ruled on Wednesday that the orders given to Kendall-Smith were lawful.

He said in his ruling: "None of the orders given to the defendant in this case was an order to do something which was unlawful," according to the Press Association.

"I also conclude that it is no defense to a charge of wilfully disobeying a lawful order that the defendant believed that the order was not lawful.

"That might be a point in mitigation but it cannot provide a defense in law since the mens rea (legal basis) of the offence is a deliberate disobedience of an order which the defendant received and understood."

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