Military Legal Issues - 2005

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Date Title Author Reference
19 Nov 2005 Aspects concerning the criminal case against Eric O. D.J.H.M. Dieben and Th.O.M. Dieben Essay
May 2005
After a 'wave' of peacekeeping missions in the early nineties, the shortcomings of the new philosophies on the use of violence in international conflict became painfully clear. The peace keeping missions in Somalia, Rwanda and Bosnia are now considered at least to some extent failures from both political and military perspective. Studies and evaluations of these interventions all speak of inadequate mandates, unspecific military objectives, and incapacitating limitations on the use of force. Technology enables society to spread news and information faster and more efficiently than ever before in human history, and this so-called 'CNN-effect' puts even more stress on the mechanisms of responsibility. The case against Eric O., a Dutch soldier stationed in Iraq during the second Gulf War, is a criminal case; it addresses all the legal issues described in this introduction; it is the case of a soldier charged with the unauthorised use of force. The case stirred up great debate among politicians about the mandate given to soldiers, the role of criminal law in these matters and the responsibility of political leaders.
Summary by Aspals.

19 Nov 2005 Guard Dog On A Leash. Conceptual Thoughts On Rules Of Engagement Colonel R.M. Eiting (Netherland); Lieutenant-colonel J.S. van Duurling (Netherland) Strategic Impact 95 No. 1/2005
The subject of Rules of Engagement (ROE) is enjoying increasing interest, not least in the armed forces of the Netherlands - interest that is apparent in practical situations during operations and exercises, at training centres and in literature. Within NATO, plans for a single standard set of ROE are at an advanced stage; these ROE would be applicable for every conceivable type of operation in any type of conflict (however, they are strongly based on experiences with ROE in crisis management operations). Military personnel who are not of the right quality considerably increase the chance of, on the one hand, no force being applied when it is necessary, and on the other hand responding with excessive force when restraint is actually called for. Furthermore, this considerably increases the likelihood of violations of the law of war and of the ROE. An official policy that results in soldiers not functioning in a proper way contributes to undermining the legality of military operations. Such a policy will ultimately have a counterproductive effect at decisive moments. Returning once again to an earlier metaphor: a guard dog should not be replaced by a lap dog.
Summary by Aspals.

19 Nov 2005
Interoperability of Rules of Engagement in Multinational Maritime Operations Eric S. Miller Center for Naval Analyses
In the post-Cold War world, with defense downsizing, nations are likely to work together at sea. One particularly difficult challenge in multinational maritime operations is overcoming differences in Rules of Engagement (ROE). ROE address when, where, against whom, how, and how much force can be used. The varying capabilities, doctrine, political objectives, security interests, civil-military relations, and cultures of the members of multinational operations affect ROE. This paper outlines some common principles, problems, and procedures for reducing the risks of ROE incompatibility and increasing ROE interoperability in multinational maritime operations. The goal of ROE interpretability is to improve the ability of multinational forces to function together safely, effectively,and strategically by ensuring uniform actions and uniform understanding. This paper suggests steps that could foster ROE interoperability and could be taken in advance of real-world contingencies. [Large pdf file (1.55Mb)]
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26 Apr Courts Martial from Bad Nenndorf (1948) to Osnabrück (2005) Professor Gerry Rubin RUSI Journal
Apr 2005
Another thought-provoking article by Gerry Rubin. He looks at Operation Greenford post WW II, whereby detainees had been rounded up and subjected to interrogation by members of the British Army.the detention procedures had got out of hand. Abuses occurred; beatings; unhealthy temperatures; insalubrious conditions; severe injuries to detainees; a death occurred. The story emerged and the occupation authorities were gravely embarrassed. Someone's head (but not that of a politician) had to roll [sic]. So the interrogators now became the accused. DieZeit wrote: "It is a good omen that in the middle of Germany a trial is being conducted against British officers accused of having ill-treated German prisoners at Nenndorf...All Germans should take the trouble to understand the full significance of this trial. The details which come to light are not so important; what matters is the fact that these proceedings are taking place publicly on the initiative of the Occupying power...The Germans who are inclined to say, "The victors are no better" are thereby disarmed. For imagine justice being administered in this way under Hitler."
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26 May Different models of military jurisdiction and judicial guarantees APV Rogers OBE ICJ, 26, January 2004
at p.12
The author looks at the arguments both in favour of and against the exercise of military jurisdiction over those subject to military law. Taking all factors into consideration, he considers that the requirement is for a mobile system of justice that can deploy with troops serving abroad or on military operations, that can help to uphold military discipline and that can support the commander in preventing and punishing war crimes. He also looks to the future and the shape that military justice might take.
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28 Apr Military offences, common law offences and military jurisdiction Major General DM Howell OBE ICJ, 26, January 2004
at p.25 (search for "Howell")
A presentation by the head of the independent Army Prosecuting Authority. He explains the unique position of servicemen who are subject to both UK domestic law and military law, wherever they serve and, overseas, the possibility of also being subject to the domestic law of the Host Nation. He argues there are practical advantages of trial by court-martial. He also examines the interesting issue of the degree to which military jurisdiction and civilian jurisdiction overlap and what happens when they do? A fascinating insight into the world of the military prosecutor.
Summary by Aspals.

28 Apr The Manual of the Law of Armed Conflict Edited by APV Rogers Buy On-Line
This book is described as the first comprehensive manual on the law of armed conflict prepared by a team of expert scholars and practitioners working for and with the UK Ministry of Defence. It covers all aspects of the law of armed conflict as applied today, including means and methods of warfare, the treatment of civilians and other non-combattants - including prisoners of war - and the conduct of operations in all three environments: land, sea and air. It also includes discussion of some of the key elements of relevance in the modern strategic environment not least the legal aspects of internal armed conflict and the application of the law during peace support operations. This is a significant publication providing sound evidence of the legal views of one of the five Permanent Members of the UN Security Council. As such it will become an essential reference and source for legal scholars working in this field, for officials working in foreign and defence ministries around the globe, and for military officers and lawyers requiring a sound grasp of the legal framework of military operations.
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28 Apr Someone Else's War Tony Rogers
Based on interviews with mercenaries of many nationalities, this text investigates the shadowy world of soldiers of fortune. It reveals how white mercenaries came to play a key role in the struggle for the Congo and how the end of the war in Vietnam coincided with the start of the war in Rhodesia, attracting a new generation of freelance soldiers. It covers the Angolan debacle of 1976 and a succession of other operations, revealing for the first time details of an attempted coup in Malta. The role played by mercenaries in war-torn Yugoslavia is also covered due to the author's first-hand experience of the conflict as a photojournalist.
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30 January Endgame: The Betrayal and Fall of Srebrenica, Europe's Worst Massacre Since World War II David Rohde Buy On-Line
In 1993, the UN Security Council made Srebrenica the worlds first UN-protected civilian safe area, only to see the town fall two years later after UN commanders turned down repeated requests for NATO air strikes to halt attacking Bosnian Serbs. As many as 7,000 Muslim men perished in mass executions after the battle.In Endgame: The Betrayal and Fall of Srebrenica, Europes Worst Massacre Since World War II, Pulitzer Prizewinning author David Rohde exposes how the United States, France, Great Britain, the United Nations and the Bosnian government allowed 40,000 Muslims to fall into the hands of their potential executioners.Drawing on previously undisclosed accounts of top-level UN meetings, internal documents, and hundreds of interviews with participants on all sides, Endgame is a tale of cynical power politics in the postCold War era, a case study in genocide, and a disturbing testament to the power of propaganda and self-delusion.
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