Aspals Reading List - 2002

Military Legal Issues - 2002

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Date Title Author Reference
Winter 2002
Posted 2 Oct 06
The British system of military justice Simon P. Rowlinson Air Force Law Review
Located in "Find Articles"
This article examines the post AFA 96 system of military justice used within the United Kingdom Royal Air Force (RAF). It briefly discusses the historical development of the military system of justice to the present form and reviews the existing system and finally looks at the challenges to that system. The system employed by the Army is virtually identical in all respects to that of the Royal Air Force. The Royal Navy system differs in some details to that of the other two Services. For example, there is only one type of Naval Court-Martial, but following recent reforms, it is similar in most respects.   Summary by   Author, modified by Aspals

December 2002
Posted 28 Jun 04
Sentries, Guarding Instructions and Lethal Force: From the Present to the Past Professor G R Rubin RUSI Journal, Vol. 147(6),
The use of lethal force by service personnel against civilians is once more controversial ( the decision not to prosecute paratroopers in Pristina over a fatal shooting was followed by successful civil proceedings in Bici v MOD). This article looks at two courts martial in 1950 (Germany) and 1951 (Korea) when servicemen on guard duty shot at and killed civilians. The public concern and newspaper campaigning over the cases were considerably greater than that generated by Bici.   Summary by   Author

December 2002 United Kingdom Military Law: Autonomy, Civilisation, Juridification Professor G R Rubin The Modern Law Review
Vol 65, No1, at p.36
Professor Rubin's paper argues that military law has undergone a long-term process of change. Previously, an autonomous legal system with little civilian input at the administrative, judicial and policy-making levels, military law became subject to a consensual policy of civilianisation from the early 1960s, reflected primarily in the adoption of civilian criminal law norms by the military justice system. More recently there has emerged the juridification of significant areas of military in respect of discipline and certain other terms of service which hitherto had not been subject to externally imposed regulation. Explanations for the shifts from autonomy, through civilianisation, and then to juridification, ranging from political and social developments to new human rights and equal opportunities discourses, are offered for such changes.   Summary by   GR Rubin

December 2002 The Sixteen: The Assassination Squad that went beyond the SAS John Urwin
An insider's account of a covert and elite branch of the British military service. Reveals secret training techniques, weapons and activities of 'The Sixteen'. Details the author's involvement in events during the Middle East crisis of the late '50s Describes top secret missions which involved assassinations made to look like robberies or suicides. In 1957, the author was secretly observed during his National Service basic training and was specifically targeted and selected whilst stationed in the Middle East to become 'Geordie', one of an elite, covert group known only to one another as 'The Sixteen'.   Summary by   Non-Aspals

December 2002 The Pensotti Royal Air Force Court-Martial Controversy: 1944-1965 Professor GR Rubin New Zealand Armed Forces Law Review, [2001]
at p.36
Few second WW courts-martial of British service personnel have been the subject of study by historians. The proceedings involved a wartime 38-year old judge advocate who found himself before a court-martial in April 1944, where he was convicted of altering, and then submitting as genuine, papers relating to a previous court-martial in which he had acted as judge advocate, and for subsequently lying on oath. Professor Rubin's fascinating account of this case makes enjoyable reading. It also makes one thankful that, since 1 May 1952, there is a court-martial appeal court.   Summary by   Aspals

December 2002 Unequal justice Edward T. Pound US News
16 Dec 02
"Military courts are stacked to convict"but not the brass. The Pentagon insists everything's just fine" runs the headnote to this challenging article about the US court-martial system. The author chronicles the plight of servicemen, among them Duane Adens, given a bad-conduct discharge for drug abuse, whose conviction has since been overturned by the army appeals court which found that the prosecutor had "materially prejudiced'' Adens's right to a fair trial. He also looks at the Navy system and comments that "In the military, a lawyer can prosecute you, then turn right around and defend you in the same case." Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts? The Uniform Code of Military Justice is criticised as having failed to embrace key procedural safeguards available in civilian courts and to keep pace with the military justice systems of some U.S. allies, including Britain. This is a compulsory read for military comparative lawyers.  Reported by E Fidell, summary by   Aspals

October 2002 Prosecution of War Criminals in the 21st Century Judge Richard Goldstone Inner Temple Yearbook
at p97
Until 1993 there was an absence of international accountability for war crimes. The establishment of International Criminal Tribunals for Yugoslavia and Rwanda was an imaginative and effective way to use the peremptory powers of the Security Council by the provisions of Chapter 7 of the UN Charter. Their success provided a new impetus for establishing an ICC. The author also examines the events of September 11th 2001 and concludes without doubt that they were crimes against humanity. The ICC could be a powerful mechanism if there is sufficient international cooperation. Few can really disagree with this proposition. A very interesting article from a highly respected international lawyer.   Aspals

30 September 2002 Honour Amongst Men Nicholas De Marco The Lawyer
at p25
Argues that the war on terrorism and the prospect of an attack on Iraq are set to challenge human rights laws.    Butterworths

August 2002 An end to impunity Howard Morrison QC Counsel
at p16
The new ICC presents the opportunity to replace blind retribution and nationalism with reasoned judgment that flows from the intellectually honest acceptance that we are all in this together. Depsite this, the USA remains aloof from the court. Mr Morrison also predicts that by the time the ICC is hearing its first cases a properly constructed independent and regulated Bar will be in existence to meet the needs of the ICC.    Aspals

June 2002 Evolving Military Justice by Eugene R. Fidell (Editor), Dwight Hall Sullivan (Editor) Naval Institute Press, ISBN: 1557502927
For decades, debate has raged over whether the military justice system is foremost a tool to preserve discipline within the armed forces or a means of dispensing justice on a par with civilian criminal justice systems. From the dawn of American military law in 1775 through World War II, the answer was obvious: military justice was primarily a tool commanders used to maintain discipline. In 1950, however, Congress enacted the Uniform Code of Military Justice. Through amendments over the past half century, the American military justice system has evolved into what it is today: not quite a mirror image of the civilian federal criminal justice system, but vastly more fair than in the days of drumhead courts and the lash, according to the authors, both practicing attorneys and former military officers.    

June 2002 Contemptuous Speech Against the President Lieutenant Colonel Michael J. Davidson, US Army The Army Lawyer, July 1999
at p.1
The prohibition against contemptuous speech directed against the President is contained in Article 88 of the Uniform Code of Military Justice (UCMJ). From its earliest days, this military prohibition has been a mechanism to ensure the foundational cornerstone of the Republic that military power is subordinate to the authority of the civilian leadership. Additionally, like other punitive articles that criminalized disrespect and insubordination to military superiors, this provision of military law serves to enhance discipline and to protect the hierarchical system of rank within the military. It is generally not a defence that the accused did not intend his words to be contemptuous, and to achieve a conviction the government does not even have to establish that anyone made privy to the contemptuous words knew of the accused's military status. However, modern practice is to prosecute Article 88 sparingly, addressing misconduct at the lowest appropriate level.    Aspals

April 2002
Unknown Soldiers Various The Big Issue
N° 483, at p.422
A series of 6 articles. The first focuses on the plight of the ex-serviceman and the problems of homelessness many face. The second asks why it is that there are no monuments to soldiers who died in Britain's small undeclared wars of Cyprus, Aden and Palestine. The third examines whether the army is fighting fit, in an article entitled "War and Peacekeepers". The fourth article is a report from the tragicomic theatre of war dealing with the entertainment provided to the forces. Article five looks at life in the French Foreign Legion and discovers how well educated most legionnaires are. The final article explores the variety of careers on offer in today's army. Be the best.    Aspals

22 March 2002 Courts martial - what happens now? John Mackenzie New Law Journal
at p.422
The aftermath of the decision in Morris has brought courts martial to a halt. Mr Mackenzie looks at why the system is in breach of the European Convention, asks how did this situation arise and argues why criminal cases should pass to the civilian court system. However, the right to elect trial on any charge is not a result of the Morris decision. This was introduced by the Armed Forces Act 1996 (see Note). However, the author does make the point that the misgivings about the system expressed in Findlay were never completely addressed by the ensuing legislation. He voices other concerns about those currently detained in MCTC and warns of other cases to come by way of challenges to the summary system. In his view, the armed forces do not need a criminal jurisdiction and he advocates that, overseas, jurisdiction would pass to the host nation authorities so that convicted soldiers would languish in foreign prisons. An interesting article.    Aspals

15 February 2002 The armed forces and Crown Immunity Robert Weir New Law Journal
at p.231
An analysis of the landmark ruling in Matthews-v-Ministry of Defence, by counsel for the claimant, that takes a look at the immunity imposed on the armed forces by virtue of section 10 of the Crown Proceedings Act 1947 and looks at the operation of section 10 as influenced by the Human Rights Act 1998. The case has opened the way for those injured prior to 1987 (the date section 10 was effectively repealed) to pursue a claim, The decision is being appealed.   Aspals

1 February 2002 The Taliban and the law of armed conflict Marc Weller New Law Journal
at p.131
An assessment of the legal status and treatment of prisoners of war under the Geneva Convention, looking at the applicable law and who is covered by PoW status. Relations between the international coalition and the Taliban were clearly governed by the law of international armed conflict from the moment hostilities were initiated by the coalition. PoW status is afforded to regular forces and members of militias or volunteer corps. The Taliban forces would be covered. The method of the handling of these prisoners may undermine the longer term interests of the UK and US governments.    Aspals

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