Aspals Reading List

Military Legal Issues - 2004

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Date Title Author Reference
2004 Strengthening Respect for International Humanitarian Law Training - Rote or Ethos? Charles H.B.Garraway Current Problems Of International Humanitarian Law 28th Round Table, Sanremo,
2-4 September 2004, at p182
Charles Garrway states his purpose is to look at the other end of the spectrum from enforcement " training. This seems to have fallen off the radar slightly though I would argue that it is at least, if not more, important. After all, prevention should always be more important than cure. He takes as his starting point Article 127 of the Third Geneva Convention, in which High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the Convention as widely as possible. He emphasises three points. First: "principles" — the need to impart an ethos. Second: the inclusion of law of armed conflict training in programmes of military instruction. It should not be a stand alone subject but built in to the ordinary curriculum so that it is seen to be based in practical military reality. Third: the widening of dissemination relating to the law of armed conflict to the civilian community. It is too late when those civilians begin to don uniform. Acceptance of these three principles and moves towards implementing them would, I suggest, be a sound way of "Strengthening Respect for International Humanitarian Law."

Summary extracted by Aspals.

December 2004 Occupation for Hire - Private Military Companies and their Role in Iraq David Simons RUSI Journal, Jul 2004
Vol 149, at p68
Only since the war in Iraq has the true extent of Washington's 'outsourcing' been laid bare. Can we do without PMCs now that our forces have shrunk to the dangerously low levels of recent times? How do they differ from mercenaries? The Foreign Enlistments Act of 1870 prohibits British citizens being enlisted for foreign service, although the author considers this impossible to enforce. But what law governs PMCS and, more importantly, whose jurisdiction do those employed by PMCs in a (former) war zone come under, where the state infrastructure is not yet reconstituted? Who authorises the carrying of weapons by PMC employees and the circumstances in which force can be used by them? Inappropriate responses by such individuals can spark major incidents with which the military subsequently has to contend. What sanction is there? How does one categorise any intensive and sustained exchange of fire between employees of a PMC and rebels/insurgents? Do the Geneva Conventions apply? If not, what does? These latter questions are yet to be fully resolved.

Summary by Aspals.

December 2004 European Military Law Systems Georg Nolte
The German Ministry of Defence decided in 2000 to commission a study comparing various European systems of military law. This volume contains not only the original study but also all national reports in English. It provides a comprehensive analysis of different European military law systems on the basis of national reports.
Summary by Amazon.

October 2004 The International Criminal Court Steven Kay QC The Inner Temple Yearbook
at, p.38
The author argues that we have entered a new age where citizens of the world are not prepared to accept that their governments may harm fellow human beings in their name even if it be for a so-called "just cause". He asks whether the world is a better place for having the ICC.

Summary by Aspals.

October 2004 Torture Lord Hope International and Comparative Law Quarterly
ICLQ, vol 53 at, pp.807-832
Lord Hope examines this emotive topic, what it means and attitudes towards it. He notes that condemnation by human rights instruments to which almost all states have subscribed is one thing. Elimination is quite another. Looking back at the history of the practice, from ancient times to more recent official sanction in England and Scotland through the issue of torture warrants, until its outlawing in 1709 with the passing of the Treason Act of that year. He turns to the position in international law and the positive obligations placed on states to condemn torture and all kinds of inhuman and degrading treatment, but he raises the interesting question that what constitutes torture is a question of assessment - one not of law or legal principle, but of evaluation. An excellent article for those interested in this subject.

Summary by Aspals.

October 2004 Establishing the Rule of Law in Iraq Christopher Mitchell-Heggs and Salam Abdullah The Inner Temple Yearbook
at, p.42
The campaigns of purification and liquidation carried out by the Baathist regime during the last forty-five years corrupted the civil law and destroyed the old system of justice. Since June 2004, when sovereignty was handed over to the interim government, the rule of law is sustained by the Cabinet of Interim Ministers. A fascinating article describing the efforts to made to re-establish the rule of law in this war-torn and much troubled part of the world.

Summary by Aspals.

5 Aug 2004 New war, new law Ben Brandon and Ben Watson Solicitors' Gazette
Vol 101/31
at, p.12
The authors argue that the war against terrorism has forced the US Supreme Court to rethink the laws on armed conflict. They consider that the guardians of the rule of law have acted decisively and that, for however long the 'war on terror' subsists, in the US the intervention of the law is guaranteed. Do the Geneva Conventions need modernising?

Summary by Aspals.

Aug 2004 Law on the Battlefield (Melland Schill Studies in International Law) APV Rogers Manchester University Press
This is a critical study of the key provisions of the law relating to the conduct of combat in armed conflicts on land, illustrated by reference to problems that have arisen during recent conflicts. It is an updated version of the first edition but with two additional chapters, dealing with rules relating to the conduct of combat against members of the enemy armed forces and in internal armed conflicts. The approach adopted is to take a proposition of the law of war, examine its historical origins and current exposition, deal with problems of interpretation and application, especially in the light of recent conflicts, and reach conclusions about how it should be applied in practice.

Summary by Amazon.

Aug 2004 The Rule of Law in war time Mark Agrast Counsel, August 2004
at p.12
The prolonged detention of hundreds of suspected terrorists generated considerable concern in many quarters, from the American Bar Association to such prominent members of the English Bar as Lord Steyn and Lord Goldsmith. At stake was not only the fate of the detainees but also such larger questions as the rule of law in time of war, the limits of presidential power within a constitutional system of separated powers, the role of the courts within that constitutional scheme, and America's place in the world community. What of the rights of non-citizens? The author takes a look at the leading decisions and the use of habeas corpus to deliver up detainees detained outside the jurisdiction.

Summary by Aspals.

Aug 2004 Courts-Martial Discipline and the Criminal Process in the Armed Services, 2nd Edition (2003) HHJ James Rant QC with Commodore Jeff Blackett RN Oxford University Press
Times have changed. The legal safeguards for soldiers are now at least as good as those for civilians, and arguably better. Every decision of a Court-Martial is reviewed by the military authorities - a process which can only help the Defendant - and the serviceman has the right of appeal to the Court of Appeal, identical to that of a civilian. The author also deals with the Summary Appeal Court, which hears appeals from decisions by Commanding Officers. The book's only serious rivals are the unmanageable tomes of Army, Air Force and Navy law which, unlike Judge Rant's work, do (rather indifferently) cover the substantive law. They are barely portable. This book is. One definitely for courts-martial defence advocates.

Summary by Matthew Scott (see Counsel Magazine, May 2004, for full review) and Aspals.

Jul 2004 Special Forces' Wear of Non-Standard Uniforms
W Hays Parks Chicago Journal of International Law
2003, Vol. 4 No. 2, at p.493
See also: corrigenda
The NGO community has expressed concern about the legality of US and other Coalition special operations forces operating in Afghanistan in "civilian clothing." Is it lawful for combatants to wear civilian clothing or nonstandard uniforms in combat? It is not without precedent. Lawrence wore Arab clothing as he led the Arab revolt against Ottoman rule that began June 5, 1916. He learned the lesson from the death of Captain Shakespear who was killed by an enemy sniper when his British Army uniform singled him out and identified him as a high-value target. Indigenous forces with which allied special forces might serve may not wish for their allied colleagues to be readily identified. Moreover, the allied troops themselves might be eager to blend in with their surroundings. NGOs might not want it to be thought that soldiers were assisting them in eg humanitarian missions. There are many examples from history where forces have operated in civilian clothing. Is this perfidy? Or is it warranted by military necessity? As with all articles written by Colonel Parks, this is a stimulating read and a valuable exposition of the law in this field. Operational lawyers are well advised to read it.

Summary by Aspals.

Jun 2004 A Spy at Woomera? How an Airman Nearly Panicked Harold Macmillan and Sir Robert Menzies Prof G R Rubin RUSI Journal, Vol. 149(3)
June 2004, pp. 83-87
When secret documents of rocket tests at Woomera were found in the quarters of an RAF servicemen, the Australian Prime Minister, Robert Menzies, nearly went ballistic. He feared a major spy scandal on his watch involving secret East European agents with names like Corba (the defecting Soviet cypher clerk, after the war, Igor Gouzenko, was codenamed CORBY by the Western powers). Macmillan and Lord Kilmuir (Lord Chancellor) tried to pacify Menzies and could find no independent evidence of a spy ring. The subsequent court martial of the repatriated airman at RAF Uxbridge was an anti-climax. There were no spies; only a conviction for unauthorised possession under section 2, OSA 1911.

Summary by Author.

May 2004 When is it right to fight? Legality, legitimacy and the use of military force The Hon Gareth Evans, Cyril Foster Lecture, 2004 International Crisis Group,
10 May 2004
Some wars will always have to be fought. National interest will demand it, or our common humanity will compel it. But every generation of political leaders seems to have to relearn that war, whatever the justice of the cause for which it is fought, is always ugly, always destructive, always the source of immense human pain and misery, and almost always produces unintended results. As professional soldiers often seem to know better than civilians, the decision to go to war should never be made lightly or cavalierly, with disregard for the evidence which might justify it, or inattention to its possible consequences. And it should never be made with indifference to the formal rules of international law, such as they are, that ban or allow the use of military force. The Charter made absolutely clear in Article 2(4) that all UN member states "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations". It allowed only two exceptions to the prohibition on the use of force in international law: self-defence under Article 51, and military measures authorised by the Security Council in response to "any threat to the peace, breach of the peace or act of aggression" (under Chapter VII, and by extension for regional organisations in Chapter VIII).

Summary extracted by Aspals.

May 2004 The Case of the Guantanamo Bay Detainees In United States (and Other) Courts Hennie Strydom And Sascha-dominik Bachmann ISSN 0257 " 7717, TSAR 2004.2
May 18, 2004, at page 294
The power of the executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers, is in the highest degree odious, and is the foundation of all totalitarian government. Following the 11 September 2001 terrorist attacks in the United States, President George W Bush issued a military order stating in unequivocal terms that the scale of the attacks "created a state of armed conflict that requires the use of the United States Armed Forces". Ever since, the United States and some of its allies have become engaged in what seems to be a constant state of undeclared war. The "war against terror",) as it is commonly referred to, saw traditional military campaigns on two occasions. First, the war in Afghanistan and, secondly, the war in Iraq to oust Saddam Hussein and to find and destroy so-called weapons of mass destruction. One consequence of the war on terror that has raised widespread concern is the detention by the United States of large numbers of suspected persons at the United States naval base in Guantanamo Bay, Cuba, and at undisclosed locations in the United States.

Summary by Aspals.

Feb 2004 Soldiers left defenceless Rosalind English Times
11 May 2004
It is time to review the principle of combat immunity. The substitution of "peacekeeping" for an entire lexicon of more martial terms has led to an unintended consequence: that is, to deprive British soldiers of the immunity from civil suit that used to cover most damage caused during combat. Since the judgment in the Bici case, it seems that the specific "peacekeeping" role of the soldiers, along with their instructions to fire only if they encounter life-endangering conduct, exposes them to open-ended litigation.

Summary by Aspals.

Feb 2004
Ending Impunity in Sierra Leone Justice Geoffrey Robertson QC Middle Templar
Hilary 2004, at p. 22
In 10 years of fighting, over 100,000 civilians are believed to have been killed and a million made refugees. Grotesque attrocities were carried out. UNSC Resolution 1315 declared that the situation in Sierra Leone constituted a threat to international peace. An independent court was ordered to be set up, comprising both international and local judges and prosecutors. This was unprecedented. It will try those "persons who bear the greatest responsibility for the war", but it sanctions exclude awarding the death penalty, otherwise it is unlimited on the length of sentence.
See now,   Chief judge sidelined at war crimes court, reported in the Guardian, 15 March 04.

Summary by Aspals, contributed by Anon.

18 Feb 2004 Marching on to law Chris Baker Gazette, 12 Feb 04
at p. 22
Military courts are no longer intimidating, ceremonial occasions, thanks to the Human Rights Act. Chris Baker finds out why servicemen and women are enjoying better rights. He looks at the decision in Grieves, and its impact upon the navy system. However, he ends with words of caution: it is not a sector to go into, in his view, with all guns blazing, unless you genuinely know how to fire them.

12 Feb 2004 Human Rights 'hotspots' and the European Court Philip Leach New Law Journal, 6 Feb 04
at p. 183
Philip Leach considers how European human rights protection can be strengthened to deal with gross violations through enhancing the powers of the Commissioner for Human Rights and strengthening ECtHR enforcement mechanisms. He considers the ECtHR's fact finding process is absolutely vital in enabling the ECtHR to adjudicate in a meaningful way. The proposal to create a new post of Public Prosecutor to bring cases before the Court in respect of areas where the ECHR "cannot be implemented" is thought to be something of a misnomer, as the Court does not exercise criminal jurisdiction. He highlights Kosovo, where allegations of human rights violations committed by soldiers from Council of Europe states, acting as part of the multinational KFOR, are currently being taken to the ECtHR.

13 Jan 2004 Where should Saddam face his accusers? Christopher Greenwood QC Times
13 Jan 04
That Saddam Hussein will be tried is not in doubt. But there are questions over where the trial should be held and what charges he should answer. The evidence and the surviving victims are, for the most part, in Iraq. It is Iraqi society that most obviously needs the catharsis that a criminal trial could bring. But should the Iraqis try him?
This article also appears in The Middle Templar , Hilary 2004, at p.8.
  Contributed by Anon

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