Aspals Reading List

Military Legal Issues - 2008

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Date Title Author Reference
Army Special Operations Forces Unconventional Warfare Headquarters, Department of the Army FM 3-05.130
Field Manual (FM) 3-05.130, Army Special Operations Forces Unconventional Warfare, establishes keystone doctrine for Army special operations forces (ARSOF) operations in unconventional warfare (UW). It is based on lessons learned from both historical and contemporary UW operations. It is also based on existing, long-standing Army Special Forces (SF) UW doctrine; recently developed doctrine, such as counterinsurgency (COIN); and emerging affiliated concepts, such as irregular warfare (IW). Since 11 September 2001 and the onset of the War on Terrorism (WOT), existing UW doctrinal publications have undergone intense scrutiny and timely revision. A majority of existing ARSOF manuals have incorporated recent lessons learned and updated tactics, techniques, and procedures (TTP) of immediate utility to the conduct of war. For this reason, the Army has classified most of these revised manuals. UW remains an enduring and effective means of warfighting and is recognized as a central effort in the WOT. Although the classification of existing doctrine is prudent for operational security, it limits the distribution of concepts necessary for an effective joint, interagency, and multinational effort. ARSOF and other audiences require an unclassified conceptual manual useful to understanding the nature of UW and its role in the nation's application of power.
See also: Pocket Guide

21 Dec 2008 Command Responsibility, The Mens Rea Requirement Eugenia Levine Global Policy Forum
February 2005
The modern doctrine of command responsibility can be defined as 'the responsibility of . . . commanders for war crimes committed by subordinate members of their armed forces or other persons subject to their control. This responsibility is based on a failure to prevent or punish subordinates for their unlawful actions. One of the controversial aspects surrounding recent developments of the doctrine has been the level of knowledge that commanders must possess before they become criminally responsible. Whilst it is accepted that actual knowledge of subordinates' crimes is sufficient, debate has centred on the appropriate level of "constructive" knowledge required to warrant individual criminal responsibility.

6 Oct 2008 Military Commissions Act of 2006: Analyses (Paperback) Jennifer Elsea Buy on-line
This book provides a background and analysis comparing US military commissions as envisioned under the MCA to the rules that had been established by the Department of Defense (DOD) for military commissions and to general military courts-martial conducted under the UCMJ. After reviewing the history of the implementation of military commissions in the 'global war on terrorism', this book provides an overview of the procedural safeguards provided in the MCA. This book identifies pending legislationand provides two tables comparing the MCA with regulations that had been issued by the Department of Defense pursuant to the President's Military Order with standard procedures for general courts-martial under the Manual for Court-Martial. The first table describes the composition and powers of the military tribunals, as well as their jurisdiction. The second chart, which compares procedural safeguards required by the MCA with those that had been incorporated in the DOD regulations and the established procedures in courts-martial, follows the same order and format used in "CRS Report RL31262", "Selected Procedural Safeguards in Federal, Military, and International Courts", to facilitate comparison with safeguards provided in federal court and international criminal tribunals.

Amazon synopsis modified by  Aspals.

27 September 2008 How will the European Court of Human Rights deal with the UK in Iraq? Lessons from Turkey and Russia Professor Bill Bowring, Barrister The Iraq War and International Law
ISBN-10: 1841136697
ISBN-13: 978-1841136691
The invasion and occupation of Iraq have placed international law as a whole and human rights law in particular under extraordinary stress. In the face of brute and lawless force all normativity may appear to have evaporated from the international scene. Nevertheless, it is highly likely that in due course the European Court of Human Rights (ECtHR) will be called upon to adjudicate on complaints arising from the conduct of the United Kingdom, and possible other European states of the 'Coalition of the Willing'. The argument in this chapter is that significant normative and legal resources already exist in the jurisprudence of the ECtHR, and that through the cases decided over the years, especially the Chechen cases, a wholly positive clarification of the relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHR) is already taking place. However, this process can only be understood in the context of colonial and post-colonial armed struggles.

Summary by  Author.

September 2008 The relationship between international humanitarian and human rights law where it matters: admissible killing and internment of fighters in non-international armed conflicts Marco Sassoli and Laura M. Olson (Marco Sassòli) International Review of the Red Cross
Volume 90 Number 871 September 2008
This article explores the relationship between international humanitarian and human rights law during non-international armed conflict. It seeks to answer two questions which are crucial in practice, but where the relationship between the two branches and the answers of humanitarian law alone are unclear. First, according to which branch of law may a member of an armed group be attacked and killed? Second, may a captured member of an armed force or group be detained similarly to a prisoner of war in international armed conflicts or as prescribed by human rights? Through application of the lex specialis principle, this article discusses possible answers to these questions.

Summary by  Authors.

14 May 2008 Baha Mousa: Wider Inquiry into UK Army Torture in Iraq Essential Redress Press Release
REDRESS, the international human rights organisation with a mandate to help torture survivors obtain justice, welcomed the Government's announcement that there will be an independent Inquiry into the death of Baha Mousa, the torture and ill treatment of his nine hotel colleagues and how the five techniques banned in 1972 were reintroduced in Iraq. However, it considers that this long-overdue Inquiry does not go far enough. See the Redress Report into torture.

Synopsis by  Aspals.

22 April 2008 Terrorism Documents of International and Local Control: v. 90 & 91 Oxford University Press Hardcover
Terrorism: Documents of International and Local Control is a hardbound series that provides primary-source documents on the worldwide counter-terrorism effort. Chief among the documents collected are transcripts of Congressional testimony, reports by such federal government bodies as the Congressional Research Service and the Government Accountability Office, and case law covering issues related to terrorism. Most volumes carry a single theme, and inside each volume the documents appear within topic-based categories. The series also includes a subject index and other indices that guide the user through this complex area of the law. With the addition of commentary from a prominent member of the U.S. national security establishment, Professor Douglas C. Lovelace, this series becomes the premiere resource for an informative and analytical discourse on terrorism and how it continues to have a catastrophic effect on our society.

Synopsis by  Amazon.

22 April 2008 Kosovo: International Law and Recognition Speakers: Alice Lacourt, legal adviser, Foreign and Commonwealth Office, and Ralph Wilde, Reader and Vice Dean for Research, UCL Discussion Group Summary
Kosovo declared independence from Serbia on 17 February 2008. Thirty-nine States have now recognised it as a State. The United Kingdom, United States, Turkey and France recognised Kosovo the day after its declaration of independence. Alice Lacourt argued that the status quo in Kosovo had proved unsustainable. Uncertainty over status had been deterring investment; unemployment was high and organised crime a significant problem. Indecisive international responses to events in the Balkans had had terrible consequences in the past. Ms Lacourt emphasised that, however wellreasoned and well-merited a claim to independence may be, recognition as a state depended on the willingness of other States to let the new entity into the "club" that is the international community of States. Ultimately, whether or not to recognise Kosovo's secession was a political question for individual States to decide. In resolution 1244 the Security Council had provided for a final status settlement for Kosovo. Kosovo's declaration of independence as a last resort and on the basis of the Ahtisaari Plan was consistent with this. Furthermore, politically it could be seen as the best way of resolving Kosovo's status, ensuring regional stability and resolving this last remaining issue from the breakup of the former Yugoslavia. In contrast, Ralph Wilde argued that in international law, a new state may be formed from part of the territory of an existing state and its creation, and recognition by other states, will be lawful if this occurs on the basis of the consent of the 'parent' host state. When the host state does not agree to such an arrangement, one has to find some special legal entitlement on the part of the new entity to be an independent state, in order for the declaration of independence and any recognition of it to be lawful. Otherwise, it is a violation of the right of the territorial state to be free to determine the international legal status of its territory, a right which all other states are legally bound to respect through a general obligation of nonintervention. Ralph Wilde examines all legal possibilities and options and concludes that the Kosovars have no right to external self-determination and thus no entitlement to be a state. International law required that, were a settlement to be introduced without the agreement of both parties or a binding Security Council resolution, this had to involve preserving Serbia's sovereignty in the sense of title over Kosovo. What actually happened, the declaration of independence by Kosovo, amounts to an unlawful secession. This is a most stimulating and valuable discussion and a definite must to read.

Synopsis by  Aspals.

Release date, 30 Aug 2008 Private Sector, Public Wars: Contractors in Combat - Afghanistan, Iraq, and Future Conflicts (Changing Face of War) (Hardcover) James Jay Carafano (Author) Hardback
Carafano divides the history of war into three eras that define the balance of dominant activities between the public and private sectors: from the middle ages to the early modern era, the early-modern to the modern era, and the current post-modern era. Each period is illustrated by historical vignettes. A description of the evolution of U.S. reliance on contract support follows, together with a look at the various types of contractors: consultants, service providers, and security firms. The book also considers legal of other constraints on the use of contractors, as well as the nature of the current industry. Training and other contractual services are highlighted within the context of ongoing operations in Iraq and Afghanistan. In addition, the critical role assumed by the private sector in logistic support is examined in view of traditional roles and missions performed by the Armed Forces.

Synopsis by  Amazon.

22 April 2008 The German Criminal Charges Against Donald Rumsfeld - the Long Road to Implement International Criminal Justice at the Domestic Level Sascha-Dominik Bachmann Journal of South African Law (TSAR)
at page 255
On 29 November 2004, the United States-based Center for Constitutional Rights and four Iraqi individuals lay a charge with the German federal prosecutor at the German federal court for criminal matters against the (then) United States secretary of defence and ten other individuals of the United States military and security apparatus with the allegation that they were responsible for the prisoner abuses in the United States-run Iraqi prison in Abu Ghraib, which took place in 2003 and 2004. The German federal prosecutor dismissed the criminal charge with a decision on 10 February 2005 and found that the criminal prosecution of the accused by Germany would lead to an infringement of the international principles of subsidiarity and non-intervention in the affairs of foreign states (comity) due to the fact that the requirements for a supplementary German criminal prosecution were not fulfilled. Consequently, he ended all criminal investigations. A new criminal charge was filed that alleged the commission of war crimes and acts of torture by the United States in its detention facilities in Abu Ghraib and Guantanamo Bay, Cuba. The accused in this case were not only state and military officers, as was the case in the first complaint, but also former government lawyers for their culpability for the actions of their government. The German federal prosecutor dismissed this criminal charge, citing similar considerations as in his February 2005 decision, namely Germany's obligation to respect principles of state comity and the complementarity of domestic criminal jurisdiction. The Rumsfeld case serves as another example of the so far unsuccessful judicial implementation of the German Code of Crimes against International Law of 2002 and how Realpolitik can affect the judiciary (and politics) of an otherwise sovereign state in respect of the exercise of international criminal justice.

Synopsis by  Aspals.

Added, April 2008 Law, War and Crime: War Crimes Trials and the Reinvention of International Law Gerry J. Simpson Paperback
From events at Nuremberg and Tokyo after World War II, to the recent trials of Slobodan Milosevi and Saddam Hussein, war crimes trials are an increasingly pervasive feature of the aftermath of conflict. In his new book, "Law, War and Crime", Gerry Simpson explores the meaning and effect of such trials, and places them in their broader political and cultural contexts. The book traces the development of the war crimes field from its origins in the outlawing of piracy to its contemporary manifestation in the establishment of the International Criminal Court in The Hague.Simpson argues that the field of war crimes is constituted by a number of tensions between, for example, politics and law; local justice and cosmopolitan reckoning; collective guilt and individual responsibility; and between the instinct that war, at worst, is an error, and the conviction that war is a crime. Written in the wake of an extraordinary period in the life of the law, the book asks a number of critical questions. What does it mean to talk about war in the language of the criminal law? What are the consequences of seeking to criminalise the conduct of one's enemies?
And, how did this relatively new phenomenon of putting on trial perpetrators of mass atrocity and defeated enemies come into existence? This book seeks to answer these important questions whilst shedding new light on the complex relationship between law, war and crime.

Synopsis by  Amazon.

Added, March 2008 Ethics and the British Army's Values and Standards Stephen Deakin Ph.D. MBA. Cert. Ed. The British Army Review.
No. 140. Winter 2006. pp.39-46
In 2000 the Army published a booklet entitled Values and Standards of the British Army: Commander's Edition (henceforth referred to here as, Values and Standards) which is still in use and is a guide for officers.2 The ethical arguments in this booklet are the subject of this paper. The purpose of Values and Standards is to express the principles required to provide for the moral component of the Army's fighting ability. Much changed in the ethical outlook in this area between the publication of the Standards and Discipline paper in 1993 and the publication of Values and Standards in 2000. For the Army perhaps one of the most influential changes in this area was that it gave up a centuries old policy that prohibited known homosexuals from serving as soldiers. To make this change the Army weakened the emphasis on internal character in the 1993 Standards and Discipline Paper used to support this policy. The claim made throughout this paper, but not fully explored, is that the ethics of virtue would avoid some of the difficulties identified. In a future paper in the British Army Review, the author hopes to make some suggestions about how virtue ethics could be useful to the Army.

Synopsis extracted by Aspals.

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