Flight-Lieutenant Malcolm Kendall-Smith, a 37 year-old medical officer currently serving at the RAF Kinloss base in Morayshire, Scotland, has been charged with five counts of disobeying a lawful command to report for duty between June and July 2005.

He had defended his decision not to return to Iraq in an earlier statement to the court saying, “I am a leader. I am not a mere follower to whom no moral responsibility can be attached.”

The military court heard evidence that Kendall-Smith had refused to return to Basra because he believed the Iraq war to be an illegal venture under international law. Through his lawyers he has emphasised that he is not a conscientious objector having already served two terms in Iraq and been decorated for previous service in Afghanistan.

However he has stated that it was while serving in Iraq that he concluded that the war - and subsequent occupation by the coalition forces - was unlawful and hence felt justified in refusing to obey what he considered to be an illegal command to return to his regiment’s Basra base. Crucial to his defence is a section of RAF law which states a serving officer is within his rights to refuse to obey an order if he believes that order to be illegal.

Outlining the case for the defence, counsel Philip Sapsford QC advised the court that his client’s position was that “Iraq is and remains under occupation” and that “if the UK is not entitled in international law to use force against Iraq, the flight lieutenant is entitled to say to this tribunal ‘I hold that belief honestly and in these circumstances it's my duty to disobey these orders.’” Sapsford has indicated his client’s willingness to go to jail over the issue.

Kendall-Smith came to the conclusion that the Iraq invasion was a crime under international law after studying various legal opinions including the controversial advice of Attorney-General Lord Goldsmith given to the British government prior to the invasion.

Though Lord Goldsmith, in his revised legal opinion, did undertake to the British government that a bona fide case for war existed, it was in his original opinion, written in March 2003 - but not released to the British public until April 2005 - that Goldsmith raised legal doubts over the legality of the Iraq invasion.

Primary among these doubts was the use of force against a country that apparently posed no immediate threat to the UK and that this use of force was carried out without the prior consent of a UN Security Council resolution.

Goldsmith’s change of mind in his subsequent memo - effectively giving the Blair government the legal green light for invasion - has prompted questions that political pressure placed on the Attorney-General to release a more sanitized version of his original advice. Goldsmith though has denied any government interference and stated the two memos were in fact consistent.

Describing the case in an October 2005 interview on NZ National Radio, Kendall-Smith’s legal spokesman Justin Hugheston-Roberts said Kendall–Smith would, “judicially question the constitutional legality of the invasion” and that “he will be arguing that the war was manifestly unlawful and will be seeking a judicial ruling on that question.”

Hugheston-Roberts also empathised the importance of the case saying it would “raise profound issues and questions on international law.”

Though Kendall-Smith trained as a doctor in his home country of New Zealand, he also obtained a postgraduate degree in philosophy from Otago University. Described as a “thoughtful individual” by his New Zealand colleagues, it was his thesis on the work of the German philosopher Immanuel Kant which has highlighted Kendall-Smith’s deep sense of morality and ethical approach to international relations.

Charles Pigden, the lecturer who marked the thesis said of Kant’s philosophy,

“Kant was the philosopher who makes doing the right thing of critical importance... people who are interested in Kant's ethics, they're keen on morality. Maybe Dr Kendall-Smith thought that in joining the British Army he wouldn't be getting into morally dubious stuff. Which sadly proved not to be the case.”

The outcome of the case will be keenly observed by senior members of the Blair government who have come under increasing criticism over their conduct of the war in Iraq including accusations that the British government exaggerated the Iraqi threat to the UK and deceived the country over the now discredited notion that Saddam Hussein had weapons of mass destruction.

Opponents of the war have suggested that should Kendall-Smith’s legal team be able to justify their client’s actions on the basis that the invasion and subsequent occupation of Iraq was a crime under international law, the government’s credibility on the subject - already under serious question - will be effectively destroyed.

The full court martial is due to start next month.