Aspals Reading List - 2001

Military Legal Issues - 2001

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Date Title Author Reference
December 2001 Does one illegality merit another? The law of belligerent reprisals in international law Andrew D. Mitchell Military Law Review
at p.155
A special feature of international law is its lack of an effective enforcement mechanism. The law of reprisals results from that weakness, providing states a limited power of self help to force states to obey international law. But how far may these measures legitimately go? The article defines belligerent reprisals and examines the conditions on their use, including persons protected from such action. A very interesting and worthwhile read.

30 November 2001 Is the bombing of Afghanistan by the US and UK lawful? David O'Sullivan New Law Journal
at p.1778
Is a new rule emerging which permits the use of force against states allowing their territory to be used by terrorists? If so, what are the dangers posed by such rules? Terrorist acts by Al-Qaeda do not appear to constitute an "armed attack" by Afghanistan, within the existing legal definition. The complaint is not that the Taliban sent the terrorists but that they harboured bin Laden and Al-Qaeda. Concepts of necessity and proportionality in reponse are part of self defence. The author questions whether either applied in this case and feels that dressing up the action taken as self defence has the potential to de-stabilise international relations and cause greater conflict.

November 2001
Living with inequity Michael Gerrard Law Society Gazette, 29 Nov
at p.26
Following the death of SAS trooper Brad Tinnion, Michael Gerrard looks at how unequal rights of cohabitation are forcing his partner, Anna Homsi, into a legal battle and the changes needed as a result. Britain lags behind its European neighbours in failing to recognise rights for both heterosexual and homosexual couples. Government-backed legislation is the only way necessary legal change can come about. (Ms Homsi received an offer of £250,000 ex gratia, together with a £20,000 payment and a £2,000 p.a. allowance until the baby reaches 17)

November 2001 Soldiers, wars and insurance Veronica Cowen & Daniel Lee Times, 27 Nov
at p.5
Insuring soldiers and journalists in Afghanistan is difficult. The American insurer, AIG, refused cover for MoD personnel, which could have had an adverse effect upon morale. This article does not give much hope, save for one or two companies prepared to take the risk. [Perhaps the MoD should consider its own scheme]

November 2001
What I Saw at a Military Tribunal Lloyd Cutler Time Magazine
Former White House Counsel Lloyd Cutler gives a first-person account of the WWII tribunal and a critique of the Bush plan. He looks back to the aftermath of the attack on Pearl Harbour and that superior American intelligence had foiled a Nazi plan to destroy U.S. bridges and factories. The FBI captured eight Germans and German-Americans, who had landed in the US. Their arrest set in motion a series of events that can serve as a historical backdrop for President Bush's Nov. 13 executive order permitting the military to try suspected foreign terrorists in tribunals. There are legitimiate uses for a military trial " trying terrorists in a military court in a place as lawless as Afganistan is one of them. But whether and under what rules a trial of terrorists in the United States should be conducted in secret or in public before a military tribunal is another matter. Wiser public policy is either a public military trial with a right of judicial review or even a public prosecution in the regular civilian courts

November 2001
Are We Really at War? Lieutenant Colonel Gary D. Solis, U.S. Marine Corps (Retired) USNI
President George Bush declared that the United States is at war. This "war on terrorism" raises questions about the meaning of the term war. What Constitutes a War? Are Terrorists Combatants or Criminals? Where May Terrorists Be Tried? What makes a military commission preferable to a domestic court for the trial of an al Qaeda terrorist is that commissions may be conducted in secret. In contrast, in federal court the prosecution's proof, including the disclosure of most secret US intelligence-gathering means and techniques, would have to be revealed. Col Solis argues that courtroom security is simpler in trials conducted on military bases, and military jurors would be less susceptible than civilian jurors to possible terrorist retribution.

November 2001
If It's War, Treat It that Way Captain Michael C. Farkas, U.S. Army Reserve USNI
Few have disagreed with President Bush's call for swift and decisive "justice." The author says it is safe to assume that most Americans regard just punishment for such heinous acts to be nothing short of removing the perpetrators from the face of the earth. What kind of "justice" should the United States administer, however, when terrorists are found in US custody? The author thinks the time has come to treat terrorists as what they are: members of organized enemy forces who act with complete disregard for the laws of war. We should abandon our previous strategy of pursuing common criminal prosecutions alone and adopt a wartime approach under international law.

October 2001 Deadly Force is Authorized, but also Trained LTC Mark S. Martins The Army Lawyer, September/October 2001
at p.1
Col Hays Parks feels that Rules of Engagement should not handicap and endanger US forces. Young service personnel need to know when they may resort to deadly force to protect their lives. The author disagrees with the criticism Col Parks makes about US ROE and suggests that legalese in the ROE does not help the soldier when in a jam. Of more importance is the trained reaction which enables the soldier to know how to deal with the situation confronting him before he comes to harm. But such training is not cheap! The hypothetical situation in Kosovo (peace support operation) discussed in relation to the inherent right to self defence (p.5) is interesting and at slight variance to the position in English law. Nevertheless, this is an excellent article, well argued and with many examples to support the author's arguments. It should be compulsory reading for all operational lawyers!

25 October 2001
The war counsel Andrew Towler Law Society Gazette
at p. 20
As the US offensive against Afghanistan goes on, Andrew Towler questions whether it is justified as self defence and traces the evolution of international law governing warfare.

October 2001 In the Highest Degree Ominous: Hitler's Threatened Invasion and the British War Zone Courts G R Rubin K. O'Donovan and G R Rubin (eds), Human Rights and Legal History: Essays for Brian Simpson
Oxford Univ Press, 2000, at pp. 86-122.
The Manual of Military Law, Part One, para. 10 refers to the wartime arrangement for "special civilian courts to operate in place of the ordinary civil courts in any zone" declared a war zone had the German invasion started. The article looks at the planning and proposed jurisdiction for the courts (which of course never sat), including the views of the military authorities and the JAG, and also at parliamentary concern with executive powers. A reminder today of the delicate balance involving security and liberty.

December 2000 Court-Martial Jurisdiction and ex-Service Personnel: The "Boydell Gap" (1948) Revisited G R Rubin Journal of Legal History
Vol. 21, No. 3, at pp. 67-84
The "Boydell Gap" remedy in modern military law, which was prompted by a Divisional Court ruling in 1948, has been seen as authorising trial by court martial of those who, within the previous six months, have ceased to be subject to military law (Cf., R v Bulford DCM, ex parte Bowyer [1999] 9 C.L. 8 (QBD) in Aspals Case list). The article shows, however, that Boydell's case was primarily about extra-territoriality rather than time limitation.

Autumn 2001 The Non-Confirmation of Captain Carey's Court Martial, 1879 G R Rubin Journal of the Society for Army Historical Research Vol. 79, No. 319
at pp. 219-32
Using materials in the Royal Archives the author explores the background to the non-confirmation of this most celebrated court martial of the nineteenth century. The case, which historians claim "divided England", was occasioned by the death, while on an ambushed patrol led by Carey, of the Prince Imperial (son of the late Napoleon III) during the Zulu War.

October 2001
The Search for the Truth Dr Ellen Ruth Moerman Counsel
at p.24
As evidence goes through the linguistic wringer, are the rights of parties to the hearing at the ICTY in the Hague sufficiently safeguarded? This article reports on the recent Court Interpreters Committee of the Association Internationale des Interprètes de Conférence which opened at the ICTY. It highlights the problems of multilingual evidence.

October 2001
A fair hearing Steven Powles Counsel
at p.20
A response to an earlier article by Howard Morrison QC (Counsel, June 2000, p.14) which attempts to put his remarks into context and give a more complete picture of practice at the ICTY. [The article is appended to by Howard Morrison QC, in reply].

August 2001
Who Guards the Guards - the Rule of law in Kosovo Nuala Mole [2001] E.H.R.L.R.
at p.280
The author describes the deteriorating protection of the rule of law in Kosovo prior to 1999, which formed the background and the impetus for NATO's intervention. The legality of the NATO intervention has itself been questioned and the author considers the potential of the ECHR in challenging the consequences of the NATO use of force. A stimulating article.

27 July 2001
War crimes in the dock Rosalind English NLJ, Vol 151
at p.1118
See also: 1 Crown Office Row blog
Opinion is sharply divided on the War Crimes Act 1991. Is it a piece of populist legislation facilitating the prosecution of easy geriatric targets, or is it an important attempt to impose retrospective justice on the perpetrators of truly evil deeds who might otherwise escape retribution? Ms English examines how the ECHR (art. 6 in particular) impinges upon these issues. An excellent article.

20 July 2001
Humanitarian Intervention Alexander Ruck Keene NLJ, Vol 151
at p.1096
Within member states of NATO, much unease was voiced about the campaign in Kosovo. In what circumstances can humanitarian intervention be justified? The best moral justification for intervention, he argues, is the protection of human life tout court. But reliance on moral outrage alone is not enough. It presents a reason for aggressors to whip up moral outrage as an excuse for penetrating a state's sovereignty in breach of article 2(4) of the UN Convention. It matters that we find legal justifications for humanitarian intervention. Are there lessons to be drawn, perhaps, from the approach of the Strasbourg court to the manner in which it interprets the ECHR as a living document. A stimulating article

June 2001
Military Pre-trial Custody JA Paul Camp [2001] Crim L.R.
at p.459
Judge Advocate Camp looks wth approbation at the custody provisions introduced by the Armed Forces Discipline Act 2000 and explores the important role of the judicial officer in preventing abuses of power affecting the liberty of the suspect, whether before or after charge.

22 June 2001
The International Criminal Court Act 2001 Kerem Altiparmak NLJ, Vol 151
at p.946
Kerem Altiparmak seeks to alleviate the anxieties of British commanders and indicates that a careful examination of the Statute shows that their concerns disregard the Statute's own safeguards against malicious prosecutions.

21 June 2001
War in the dock Lucy Hickman Law Society Gazette
at p.26
Lucy Hickman examines how the mechanics of the International Criminal Court will operate in the UK. She looks at the principle of complimentarity and universal jurisdiction. It is expected the court will be in being by the end of 2002, when 60 states have ratified the treaty.

June 2001
The right to life: some procedural questions Peter Ferguson NLJ, Vol 151
at p.808
Mr Ferguson looks at the decisions of the ECtHR in 4 recent case (Jordan & others) concerning alleged violations of article 2. He observes that the burden of the decisions can be reduced to one broad issue. The object of an investigation, if it is to be effective and adequate, is to allay the general public (and the family's) fears and suspicions over deaths at the hands of the State by a public canvassing of the circumstances of the death which is capable of leading to a determination of whether the force used was justified and, if it was not, to the identification and punishment of those responsible.

May 2001
Rules of Conduct during Operations Other Than War W. Hays Parks American Diplomacy Archives Reorganized"
May 27, 2001
Questions regarding applicability of the law of war have arisen over the past decade, as military forces of the United States and other nations have participated in peace keeping, peace enforcement, and peace support operations around the world, and the 1999 NATO humanitarian intervention in Kosovo. Arguments have been heard that the law of war does not apply. That is not the author's view. Historically many have thought of only one line between "war" and "peace." The perception has been that once that line is crossed, law of war treaties apply"but not before. But these boundaries increasingly are less distinct or relevant. This article is a must to read. W. Hays Parks is one of the most important international lawyers of our time, whose military service and extensive practical experiences make him an expert to be listened to.

May 2001
Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice The Cox Commission NIMJ web site
with appendices
The Commission made recommendations to
A. Modify the pre trial role of the convening authority in both selecting court-martial members and making other pre-trial legal decisions that best rest within the purview of a sitting military judge.
B. Increase the independence, availability and responsibilities of military judges.
C. Implement additional protections in death penalty cases.
D. Repeal the rape and sodomy provisions of the Uniform Code of Military Justice, U.S.C. §920 & §925, and the offenses specified under the general article, 10 U.S.C. § 134, that concern criminal sexual misconduct. Replace them with a comprehensive Criminal Sexual Conduct Article, such as is found in the Model Penal Code or Title 18 of the United States Code.
   E. Fidell

May 2001
The defense function: the role of the US Army Trial Defense Service Lt Col R Peter Masterton, US A The Army Lawyer
at p1
This article explores the unique role of military defense counsel and discusses the unique issues facing them. A well-written insight into this area of practice in the US Army.

Winter 2000/2001
The barrack damage fiddle JA Camp British Army Review, N°126,
at p. 107
Judge Advocate Camp encourages individuals to challenge unjustified charges levied under s.147 of the Army Act 1955. He raises concerns about soldiers being subjected to financial orders made under this section that are probably unlawful.

May 2001
The ins and outs of public international law Khawar Qureshi Law Society Gazette, 3 May 2001,
at p. 32
Khawar Qureshi, Treasury Counsel and visiting lecturer in international law at King's College, London, explains why this field is becoming more important.

May 2001
Our Armed Forces and the modern world Francis Bennion NLJ 4 May 2001,
at p. 645
A humorous look at the quinquennial renewal of the Services and the changes to be introduced by this year's Armed Forces Act.

February 2001
Remember Dreyfuss John McKenzie NLJ 16 Feb 2001,
at p.196
Mr McKenzie continues his criticism of the court-martial system with his guns set, on this occasion, upon the CMAC.

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