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Military Legal Issues - 2009

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Date Title Author Reference
2009 The Detention Of Civilians In Armed Conflict Ryan Goodman The American Journal Of International Law
Vol. 103:48
The U.S. detention of civilians in the conflict with Al Qaeda has sparked enormous controversy. The Obama administration will no doubt want to learn from these debates, and the Supreme Court will necessarily confront them if it reaches the merits in Al-Marri v. Pucciarelli. In ascertaining the best legal and policy responses to challenges that have arisen following September 11, proponents and opponents of U.S. detention practices have veered far from the IHL regime. These distortions of IHL have led the nation down troubling paths. They sacrifice compliance with the international legal regime and they threaten humanitarian and security interests in present and future conflicts. The Supreme Court, the Obama administration, Congress, and legal advocates now have a new opportunity to decide whether and how to align U.S. legal discourse and policy with the longstanding international legal framework.   Summary by Aspals.

December 2009 'To Kill or Not to Kill?"−Dilemmas on the Use of Force Charles Garraway Conflict Security Law (2009)
14 (3): 499-510.
At the core of the law of armed conflict is the regulation of the use of force. The traditional basis of the 'law of war' was the regulation of the conduct of hostilities. It is at the lower, tactical, level that it is perhaps most essential to have clear rules so that the individual can act instinctively in accordance with the rules. If the rules are not clear, the risk of confusion and unlawful activity increases dramatically. The author is an internationally renowned expert on International Humanitarian Law with many years' experience as a practitioner in this field. The online text is an extract from the full article, which may be purchased.   Summary by Aspals.

December 2009 The Security Council and Human Rights: What is the role of Art. 103 of the Charter? Dapo Akande European Journal of International Law
30 March 2009
An internet "blog" in which the author refers to the ASIL meeting in March 2009. when there was a panel on whether the United Nations Security Council is bound by human rights law. The panelists (Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Linos-Alexander Sicilianos, University of Athens &amo; Gráinne de Búrca, Fordham University School of Law) discussed cases such as the Kadi decision of the European Court of Justice, Al Jedda (House of Lords), Sayadi (Human Rights Committee and Behrami (European Court of Human Rights). These cases have been the subject of posts on this blog. One of the things that strikes me about much of this discussion is the use made of Article 103 of the UN Charter. The role of Art. 103 is often overplayed in these debates concerning the conflicts between Security Council obligations and human rights law. There are 2 overlapping questions here: (i) Is the Security Council bound by human rights norms when it acts (eg in combatting terrorism, imposing sanctions or in authorising action in peacekeeping or peace enforment)?; (ii) are States bound to apply Security Council decisions that may conflict with the human rights obligations of those States? Art. 103 does not and cannot answer the first question. Art. 103 should not be regarded as the starting point in answering the second question.   Summary by Aspals.

December 2009 The House Of Lords In Al-Jedda and Public International Law: Attribution Of Conduct To Un-Authorized Forces And The Power Of The Security Council To Displace Human Rights Francesco Messineo Netherlands International Law Review,
LVI: 35-62, 2009
The author critically analyses two of the reasons given for the decision of the House of Lords in this case : (1) it was one of the first human rights cases in which a domestic court had to cope with the Behrami and Saramati admissibility decision rendered by the European Court of Human Rights (ECtHR)in May 2007 and thus decide on the attribution of conduct of multi-national forces authorized by the UN Security Council; (2) it touched upon the much disputed question of SC resolutions potentially conflicting with human rights provisions. He expresses discomfort at the distinction made by Lord Rodger of the Behrami case. He feels that the question before the House in Al-Jedda was limited to Article 5(1),namely if relevant SC resolutions on Iraq displaced or qualified it. As such, the question was ill-formulated and not susceptible of a clear answer. He feels that some other type of human rights obligations under the broader framework of Article 5 ECHR would apply to Mr Al-Jedda"s internment, but this was outside the scope of the questions put before their Lordships. Nonetheless, he concludes that the overall solution reached by the House of Lord was the correct one, despite the many questions it left unanswered. The somewhat less rigorous distinguishing approach followed by the majority was the only one the House could possibly adopt to send a subtle message to Strasbourg that something was wrong with the Behrami decision. He feels it is now for the latter Court to decide whether to 'acknowledge receipt" of this message and reconsider its jurisprudence on the matter.   Summary by Aspals.

December 2009 On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court Alec Stone Sweet Revue trimestrielle des droits de l"homme
Extract from: A Europe of Rights (OUP, 2008)
The author seeks to make the best argument for the claim that the European Court of Human Rights is a constitutional court, arguing that the scope of the Court"s authority is comparable to that of national constitutional and supreme courts; and it is, today well positioned to exercise decisive influence on the development of a rights-based, pan-European constitutionalism (I.A). Further, judges in Strasbourg confront the same kinds of problems that their counterparts on national constitutional courts do; and they use similar techniques and methodologies to address these problems (I.B). Finally, it is argued that the European Convention of Human Rights [ECHR] has been constitutionalised by the combined effects of the entry into force of Protocol No. 11, and the incorporation of the Convention into national legal orders (II.A). Today, the Court"s basic constitutional task “ its existential problem “ is to manage the complex system of constitutional pluralism that has emerged. At the same time, the constitutionalisation of the Convention exacerbates the pluralism that already exists in many national legal orders (II.B). Far from being an oxymoron, "constitutional pluralism" describes a normal state of affairs in Europe.   Summary by Aspals, taken from the article.

December 2009 War crimes and crimes against humanity in the Rome Statute of the International Criminal Court Christine Byron Melland Schill Studies in International Law
This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes.The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations to the underlying treaties which form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a 'real life' discussion of the type of conduct over which the International Criminal Court may take jurisdiction. This will be relevant to postgraduates, academics and professionals with an interest in the International Criminal Court and the normative basis for the crimes over which the Court may take jurisdiction.   Summary by Amazon

November 2009 Military Personal Injury Compensation Payments Are Not Enough Selena Masson LNB News, 06/11/2009 37 (Lexis®Library)
The Court of Appeal quashed attempts made by the MoD to cut the amount of compensation awarded to two wounded soldiers in Duncan v Secretary of State for Defence. Selena Masson speaks to military law expert Anthony Paphiti of Aspals Consultancy about why the compensation payments were insufficient. So what should lawyers be aware of? When challenging an award of compensation it should be clear that the proper factors have been taken into account when making the award and that injuries resulting from proper and appropriate medical treatment designed to cure the patient or alleviate pain cannot properly be said either to exacerbate or involve the creation of a separate injury.   Summary by Aspals

October 2009 Withholding National Intelligence Documentation Found Not To Be Customary International Law Selena Masson LNB News 29/10/2009 15 (Lexis®Library)
The High Court ruled that the document relating to the interrogation of Ethiopian-born Binyam Mohamed in Pakistan in 2002 should be released in the public interest. An officer in Britain's domestic security service, MI5, is currently being investigated over allegations that he tortured Mr Mohamed. The point at stake strikes at the very heart of how nations handle and respect intelligence provided by other nations. This is even more acute as we, as a member of the international community of nations, strive to fight the growing and extremely dangerous global terrorist threat, which faces us all. If the case goes to appeal there will be likely further argument on the importance of observing the convention of states and whether the assertion by the High Court that it is not a rule of international customary law is in fact correct. If it is a practice observed by most states then it is suggested there is a good argument that it is customary law which is defined as 'rules developed from the practice of states which are binding on states generally.' It seems inconceivable that any state would not wish to protect its sensitive information in accordance with the convention at the centre of this case. The questions to be determined are whether this convention amounts to state practice and if so whether there exists a conviction in the international community that such practice is required as a matter of law.   Summary by Aspals

September 2009 Responsibility to protect, Keynote Paper Naomi Kikoler Global Centre for the Responsibility to Protect. [Access Here]
Video Presentation
In 2005, UN Secretary-General Kofi Annan declared that world leaders at the United Nations World Summit had unanimously pledged, "to act if another Rwanda looms." Specifically, they agreed that states have a responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity. They also concluded that if a state is manifestly failing to protect its population, the international community has a responsibility to protect, including through the use of force should peaceful means prove ineffective. Their adoption of the responsibility to protect (R2P) offered a vision of a new international norm premised on state responsibility and nonindifference towards populations at risk of mass atrocities. This July, the General Assembly debated R2P for the first time since 2005. Member states signaled their enduring commitment to the goal, as well as some of the political and practical challenges that lie ahead. The successful debate marked another milestone in making this vision a reality even if R2P in many ways remains an emerging norm. The task ahead is to consolidate the achievements to date and instantiate the norm, thereby filling gaps in capacity, will and imagination and moving from rhetoric to saving lives. This paper examines the political evolution of R2P, and recommends strategies to ensure that practices and policies are put in place that will prevent and halt mass atrocity crimes.

September 2009 Accountability For Violations Of Human Rights Law By EU Forces Frederik Naert The European Union and Crisis Management
Article available here
Armed forces engaged in peace operations are supposed to protect the human rights of the local population and to contribute to their promotion. Nevertheless, practice in past and current peace operations has shown that peace forces sometimes violate the human rights of these people. It cannot be excluded that this may also happen in EU-led operations. This contribution therefore looks at what human rights obligations are binding on EU-led forces and how accountability for respect of these obligations can be ensured.

May 2009 Trafficking in Human Beings: Modern Slavery (Hardcover) Silvia Scarpa OUP Oxford
The first monograph study of the increasingly important phenomena of people trafficking; Incorporates historical and social context with analysis of international legal instruments, treaties, and jus cogens.
In recent decades the international community has focused its attention on trafficking in persons, one of the most worrying phenomena of the 21st century. In Part I, this book examines trafficking in persons in the light of the recent definition of the phenomenon given by the UN Trafficking Protocol, and various other international legal instruments including treaties and 'soft law'. It analyses trafficking causes and consequences, and the most common forms of exploitation related to it. Part II reviews the most important international conventions against slavery and the slave trade, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. It also analyses the most important policy documents setting the basic standards of protection for trafficked victims - namely the United Nations High Commissioner for Human Rights' Recommended Principles and Guidelines on Human Rights and Human Trafficking - and comments on the extension of the jus cogens principle of international law that prohibits slavery, to argue that trafficking in persons ought rightly to be considered a part of it. Part III deals with the Council of Europe and the European Union, and their fight against trafficking in people, arguing that the focus has been placed mistakenly on the prosecution of traffickers rather than on the protection of trafficked victims. The book concludes with a recommendation to shift towards a more balanced approach to trafficking in persons, and the overriding need to conduct further research on specific issues related to the spread of trafficking and the exploitation of its victims.
Summarised by OUP

May 2009 The relationship between international humanitarian law and human rights law from the perspective of a human rights treaty body Professor Françoise J. Hampson International Review of the Red Cross
Volume 90 Number 871 September 2008
The debate about the simultaneous applicability of international humanitarian law and human rights law also affects human rights treaty bodies. The article first considers the difficulty for a human rights body in determining whether international humanitarian law is applicable; second, it examines the problems in practice in applying the lex specialis doctrine and the question of derogation in this particular context. The author finally outlines the impact of the debate as to the extent of extraterritorial applicability of human rights law.
Summarised by ICRC

May 2009 NATO: From Kosovo to Kabul James Sperling and Mark Webber Chatham House Journal
NATO has throughout its history been the subject of prognostications of crisis and dissolution. Indeed, the alliance has been written off so many times that crisis as normality has come to typify its development. In the twenty-year history of NATO's post-Cold War development, Operation Allied Force stands midway between the existential moment that was the collapse of the Soviet bloc and the current travails being experienced in Afghanistan. A comparison of NATO's experience in the Balkans and in the Afghan theatre suggests that the view of a NATO perched permanently at the edge of collapse is problematic and misleading. This is not to defend alliance actions as such but rather to suggest that the narrative of crisis and collapse makes for poor analysis and underestimates NATO's proclivity for adaptation and endurance.
Summarised by Chatham House

Apr 2009 How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (Paperback) Matthew Alexander, John R. Bruning Also in hardback
In the wake of the torture scandals at Abu Ghraib and Guantanamo, the government has rushed to Iraq a new breed of interrogator. Matthew Alexander, a former criminal investigator and head of a crack interrogation team, tells the story of how he and his team used psychological warfare to track down Abu Musab Zarqawi, the leader of Al Qaeda in Iraq. The interrogator's job is simple: get the right information in a timely fashion. Finding Abu Musab Zarqawi had long been the US military's top priority--even trumping the search for Osama Bin Laden. No brutality was spared in trying to squeeze information from detainees. But when the Military brought in Matthew the exertions of Special Forces had yielded exactly nothing. So Matthew and his team decided to sit down and get to know their opponents. Who were these monsters so impervious to violence? Who were they fighting for? What were they trying to protect? The intelligence coup that enabled the June 7, 2006 air strike on Zarqawi's rural safe house northeast of Baghdad was the result of a painstaking and dramatic manhunt, but it was not the result of what Matthew calls "force on force" interactions. First featured in an Atlantic cover story by Mark Bowden, this is more of a true-crime or psychological suspense story than a war memoir.
Summarised by Amazon

Apr 2009 Interrogations, Forced Feedings, and the Role of Health Professionals: New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program Practice Series) (Paperback) Ryan Goodman (Editor), Mindy Roseman (Editor) Amazon
1 April 2009
The involvement of health professionals in human rights and humanitarian law violations has again become a live issue as a consequence of the U.S. prosecution of armed conflicts with al Qaeda, the Taliban, and Iraq. Health professionals - including MDs trained in psychiatry and PhDs trained in behavioral psychology - have reportedly advised and assisted in coercive interrogation. MDs have also been involved in forced feedings. Such practices would not be unique to the United States nor necessarily the most extreme in the world. The direct involvement of medical professionals in torture and covering up extrajudicial killings is a phenomenon common to many countries.
Summarised by Amazon

Apr 2009 Protecting Civilians: The Obligations of Peacekeepers Siobhán Wills Feb 2009
This book examines the obligations of troops to prevent serious abuses of human rights towards civilians under international humanitarian law and international human rights law. It analyses the duty to intervene to stop the commission of serious abuses of human rights by analysing the meaning and practical consequences for troops, in terms of civilian protection, of the Article 1 duty to respect and ensure respect for the Geneva Conventions; of the duty to secure human rights (found in most international human rights treaties); and of the duty to restore law and order in an occupation. The book also analyzes the extent of troops' obligations to provide protection in light of various different operational and legal contexts in and discusses 'grey areas' and lacuna of coverage. A discussion of whether new approaches are needed, for example where operations are undertaken explicitly to protect people from serious violations of their human rights follows; and the book concludes by offering some guidelines for troops faced with such violations.
Summarised by Amazon

Apr 2009 Targeted killing and the law of armed conflict Professor Gary Solis Naval War College Review
22 March 2007
There is no consensus definition of "targeted killing" in the law of armed conflict or in case law. A reasonable definition is: the intentional killing of a specific civilian who cannot reasonably be apprehended, and who is taking a direct part in hostilities, the targeting done at the direction and authorization of the state in the context of an international or noninternational armed conflict. In this thought provoking article, Professor Solis defines what is meant by the term 'targeted killing' and whether there exists any lawful basis for it. He argues that in today's new age of nonstate actors engaging in transnational terrorist violence, targeting parameters must change.
See also: Israel's Targeted Killings of Hamas Leaders by Mayur Patel, which examines the legality under headings of self defence, International Humanitarian Law and Proportionality.
See also the article by Gal Luft, called The Logic of Israel's Targeted Killing.See also: [Remember the Caroline!: The doctrine of 'anticipatory self-defense' – more relevant than ever] by David B. Rivkin Jr., Lee A. Casey, Darin R. Bartram
Summarised by Aspals

March 2009 The Duties of the Occupying Power: An Overview of the Recent Developments in the Law of Occupation Professor Colonel Charles Garraway Facets and Practices of State-Building,
Publisher: Brill (1 Mar 2009)
ISBN-10: 9004174036/ISBN-13: 978-9004174030
The law of occupation has always been rather on the sidelines of the law of armed conflict. Of the four Geneva Conventions of 1945, the Fourth, dealing with, inter alia, the law of occupation, is perhaps the least well known. Charles Garraway writes an illuminating and highly interesting chapter in this book, drawing on the more recent experiences of the invasion of Iraq in 2003 by the US-led coalition, to demonstrate the reach of the applicable legal provisions and the applicable UN legal provisions. He discusses "The current status of the law of occupation. A third way?" to examine where exactly the law of occupation stands today. He suggests that prior to Iraq, two separate tracks were beginning to emerge: those ocupations which did not meet with international support and to which the international community therefore argued that the law of occupation applied in its full rigour, and those occupations carried out with the assent of the international community or to which the international community was prepared to extend a degree of legitimacy. To these, attempts were made to remove the constraints of the law of occupation by the application of United Nations law in the form of Security Council Resolutions. He suggest that Iraq poses a third track in the form of occupations where the international community is not prepared to extend legitimacy but where it is accepted that a return to the status quo is neither feasible nor desirable.
Summarised by Aspals

Jan 2009 Stability Operations in Iraq (OP TELIC 2-5) An Analysis From A LAND Perspective DGS Publications Coordinator Download
Report made 2006 (2.26MB PDF file)
The post 'major combat operations' phase of Operation TELIC has posed complex challenges to the Armies of the Coalition in Iraq. The complexity comes from the need to deter and if necessary fight armed groups opposed to our presence, as well as to help enable (and sometimes lead) the humanitarian, reconstruction and nation-building activities in support of distinctly fragile or non-existent governance structures. The analysis of Operation TELIC in the period May 2003 to 31 January 2005, when the first Iraqi elections were held, offers a number of insights for study and action. The UK should develop a planned rather than an ad hoc approach for the legal aspects of Stability Operations, based on experience from both Kosovo and Iraq. Within the justice system, the UK Police Service is not well configured to provide stability police units (SPU: armed policemen in formed bodies) in post-conflict situations overseas. The UK should actively support international efforts to develop Gendarmerie–style SPU. Recent developments in international law have affected the legal basis on which United Kingdom Armed Services operate. International law continues to evolve in dynamic fashion and thus the legal basis for the use of force will continue to change. The legal basis for the war itself was, and still is, controversial. There is a military need, at least, at the outset of operations to reinforce the legal base for deployment by clear, unequivocal and timely direction and explanation. This complex legal environment severely tested the capabilities of UK Servicemen and women.
Summarised by Aspals

Jan 2009 Legal Support to Military Operations Joint Publication 1-04 (US Forces) Download
01 March 2007 (0.7MB PDF file)
Legal organizations within the Department of Defense (DOD) that support joint operations perform a wide variety of tasks at the strategic, operational, and tactical levels. Although each legal organization may possess similar functional capabilities (e.g., international and operational law advice, fiscal and contract law reviews, the provision of claims, criminal law, and legal assistance services), the specific tasks performed within each of those functional capabilities differ in purpose and scope depending on the level of war and the organization performing them. To ensure unity of effort, both the joint force commander (JFC) and the joint force staff judge advocate (SJA) must have a common understanding of who is responsible for performing which legal tasks at each level of war and how those tasks are performed. Legal advisers actively participate in the entire planning process from analysis, to course of action (COA) development and recommendation, through execution. Strategic and operational planning typically occurs at the JTF and higher echelons. Legal advisers who perform planning tasks at the tactical level typically do so as a Service component of a JTF. Planning at that level often involves a single Service that follows Service doctrine, using tactics, techniques, and procedures contained in Military Department and Service publications...
Summarised by Aspals

Jan 2009 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Professor Ian Leigh and Dr. Hans Born, assisted by Ms. Cecilia Lazzarini Mr. Ian Clements Published in 2008 by the OSCE Office for Democratic Institutions and Human Rights (ODIHR)
Free to download
(1.77MB PDF file)
Armed forces are an integral part of a democratic state and society. By fulfilling their defence and national-security functions, the armed forces play a key role in enabling a security environment that allows us to enjoy the inalienable rights and freedoms to which we are all entitled as human beings. As representatives of the state structure, armed forces personnel are bound to respect human rights and international humanitarian law in the exercise of their duties. But only when their rights are guaranteed within their own institution will armed forces personnel be likely to uphold these in the discharge of their tasks ” both when in the barracks and during operations. These changes reflect a recognition that, as "citizens in uniform", armed forces personnel – whether they are career servicemen or women or conscripts – are entitled to the same human rights and fundamental freedoms as all other citizens. Indeed, the cornerstone of all international human rights treaties to which OSCE participating States are bound is that all human beings, regardless of their professional situation or position in society, are entitled to their inalienable rights and freedoms. Section VI deals with Human Rights Education, Responsibility of Commanders and Individual Accountability, Discipline and Military Justice, and Ombudsmen.
Summarised by Aspals

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