Muslim reservist loses legal battle

A MUSLIM reservist airman who refused to take part in the Iraq war because of his religious beliefs has vowed to fight on after losing his human rights battle over being prosecuted for going absent without leave.

Former Leading Aircraftsman Mohisin Khan told the EADT last night although he was "disappointed" with the ruling, he believed his actions were necessary as a matter of principle.

The 25-year-old, from Ipswich, had been mobilised with others last year to return to the regular forces to supplement service personnel in the run up to the Iraq war.

But he absented himself from duty on the grounds of conscientious objection, believing the conflict was an "unjustified attack on his fellow Muslims".

Mr Khan, an aircraftsman and medic based at RAF Honington, was convicted of going absent without official leave by a military court in March last year, with the ruling later upheld by an RAF Summary Appeal Court.

His absence between February 24 and March 5, 2003, resulted in a fine of nine days' pay and seven days' privileges.

A landmark legal battle against the RAF prosecution was then launched, during which the court was told he held a "genuine and deep belief" that the pending war was wrong and contrary to his religion.

But yesterday, Lord Justice Rix and Mr Justice Forbes, sitting at London's High Court, ruled there was no interference with Mr Khan's rights "by reason of the appellant's recall, arrest, prosecution or conviction."

Speaking after the case, Mr Khan said he was "disappointed that the court did not see fit to allow this appeal outright".

But he said he was "heartened the court agreed that the right of conscientious objection on religious grounds needs to be clearly spelt out in the legislation."

He said the action had been brought as a matter of principle, adding: "I am not happy with the result, but I expected it. Obviously they will not let one man stand in the way of changing the law.

"At the end of the day this is all about right and wrong. This was not just a matter of belief for me, but one of human rights. I just wanted to protect mine.

"I feel that I was put in the middle and into a no win situation. Because I took the oath, it seems that overrides my human rights.

"I did not want to go ahead with the war, and I had my reasons for that, like many others have since, but it seems they wanted to make an example of me so other people would not do the same thing.

"I did not want to change the law, but wanted to make an amendment. I still believe it was a wrong war, and will now look into the law to see if I have a right to take this further, which is something I feel I should be entitled to do.

"What counts is the fact things in the military will remain as they did before. I wanted to see how the UK law treats me as a Muslim who objects to this war. I believe no justice has been shown in a simple case."

During the hearing, the judges ruled that the aircraftsman had failed to make his concerns known and never formally applied to be treated as a conscientious objector prior to his arrest, although he did have information about the right process to follow.

But it was true that the information provided to recalled reservists "could be improved", said Lord Justice Rix.

During a recent hearing, Mr Khan said he did not want to be asked to fight against fellow Muslims and felt he could not condone any military action which was not by way of "self-defence" against another state.

But the judges backed the decision by the RAF's Summary Appeal Court to uphold his conviction for the offence of being absent without leave.

Before the Summary Appeal Court, Mr Khan had argued that he had a right to conscientious objection and that such a right provided him with a defence to the charge against him.

But Lord Justice Rix said that, although Mr Khan's recall papers did not expressly refer to conscientious objection as a ground for claiming exemption from service, it did sufficiently identify "compassionate reasons" as "a relevant ground".

Once back in service and well before the outbreak of war – and before going AWOL – Mr Khan "would have been fully entitled to apply for discharge" under the Queen's Regulations on the ground of conscientious objection, he said.

It remained "mysterious" why Mr Khan did not invoke the procedure, even when he knew all about it in the form of a leaflet, said Lord Justice Rix.

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

Mr Khan joined the RAF as a medical assistant in December 1999 but left the service in April 2001 after complaining he was mainly being asked to perform secretarial duties. He was granted early retirement on condition that he remained a reservist for six years.