Muslim who refused to fight in Iraq loses appeal
By David Pallister, The Guardian, Friday October 8, 2004

A reservist airman who refused to take part in the Iraq war because he did not want to fight against fellow Muslims lost his appeal in the high court yesterday against his prosecution by the RAF for going absent without leave.

Mohisin Khan, 25, from Ipswich in Suffolk, who had absented himself on the grounds of conscientious objection and claimed his "right to manifest his religion" under the European convention on human rights had been breached, said he would take the case further.

 

Mr Khan, a leading aircraftman and medic, was mobilised last year as the threat of war in Iraq loomed. He had joined the RAF in 1999 but was allowed to resign in 2001 because the job "did not suit him", his QC, Nicholas Blake, said.

 

The court was told he held a "genuine and deep belief" that the pending war was wrong because it was not a question of a state exercising self defence.

 

Lord Justice Rix and Mr Justice Forbes ruled that there was no interference with his rights "by reason of the appellant's recall, arrest, prosecution or conviction".

 

They ruled that he had failed to make his concern known and had not formally applied to be treated as a conscientious objector before his arrest. Lord Justice Rix added that information to reservists could be improved, as it "did not mention conscientious objection expressly".

 

But the call-up papers did sufficiently identify "compassionate reasons" as a relevant ground for objection.

 

Mr Khan disappeared between February 24 and March 5 last year. The RAF punished him with the loss of nine days' pay and seven days' privileges. The sentence was upheld by the RAF's summary appeal court, which dismissed his argument that he had a right to conscientious objection and that such a right provided him with a defence to the charge against him.

 

Lord Justice Rix said that well before the outbreak of war Mr Khan would have been fully entitled to apply for discharge under Queen's Regulations on the ground of conscientious objection. It remained "mysterious" why Mr Khan did not invoke the procedure.

 

"The RAF is plainly entitled to maintain a system of reservist recall, and to discipline those accepted back into service who go absent without leave, and do so prior to raising any question of conscientious objection," he said.

 

On the facts of the case there could be no breach of his "right to manifest his religion" under article nine of the European convention on human rights by being arrested and "very mildly punished".

 

The facts were that: "He went absent without leave before any indication whatsoever of any conscientious objection, despite every opportunity of making his concerns known.

 

"Despite raising the issue in conversations during his absence, he never formally applied to be treated as a conscientious objector prior to his arrest, prosecution or at any relevant time".

 

Mr Khan said he was disappointed that the court did not allow his appeal outright, but was "heartened that it agreed that the right of conscientious objection on religious grounds needed to be made clear in the legislation".

 

He said the case had been a matter of principle for him and "in the light of the very high importance of this case for hundreds of thousands of UK Muslims I shall be seeking to take this further."

 

The RAF said it was pleased with the judgment, and that the court had accepted the majority of its arguments.

 

A Territorial Army soldier will be court martialled at Catterick in North Yorkshire on Monday on account of fake photographs published in the Daily Mirror which appeared to show British troops abusing an Iraqi, the Ministry of Defence said yesterday.

Stuart MacKenzie, 25, from Haslingden in Lancashire, served in Iraq with the 1st Battalion, Queen's Lancashire Regiment. The Mirror apologised and Piers Morgan was sacked as editor  

refusing to kill