Aspals Reading List - 1999/2000

Military Legal Issues - 1999/2000

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Date Title Author Reference
December 2000 State of Necessity as a Justification for Internationally Wrongful Conduct Roman Boed Yale Human Rights and Development Journal, Vol. 3 [2000], Iss. 1, Art. 1
This Article examines the concept of necessity as an excuse or justification for a State's breach of an international legal obligation from a practical and theoretical perspective. While the concept of a state of necessity as understood by the International Law Commission (ILC) and the International Court of Justice (ICJ) may be applicable in respect of non-fulfilment by States of human rights obligations, the balancing test in the provisionally-adopted text of article 33 of the ILC's Draft Articles on State Responsibility is designed to weigh inconsistent interests of two States rather than interests of a State against interests of a community of States and is thus ill-suited for the context of erga omnes and multilateral obligations that human rights norms entail. As a consequence, necessity, as expressed in the current text of article 33, could too easily allow a State to excuse its non-compliance with international human rights obligations in situations of threat to an essential interest of the State. That is to say, by way of a practical example, that a State could close its borders to a large-scale influx of asylum-seekers and excuse its non-compliance with its international duty not to expose asylum-seekers to the risk of persecution by asserting that the influx would threaten an essential State interest, such as the preservation of internal order and security.
   Summary by   Author
December 2000 Unlawful Command Influence LTC Robert A. Burrell, US A 2001 Judge Advocate Officer Advanced Course
This most useful article looks at independent discretion vested in each commander, the role of the Convening Officer, and the circumstances in which he may be disqualified, the requirement of freedom from outside pressure and other connected topics. It provides guidance on what to do if confronted by command interference and suggests 10 commandments of unlawful command influence.

December 2000
The Military Extraterritorial Jurisdiction Act: The Continuing Problem of Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad - Problem Solved?
Capt Glenn Schmitt, US AR The Army Lawyer, December 2000,
at p.1
The problem of American civilians who commit crimes abroad has long plagued the US government. Capt Schmitt looks at the new offence created by the MEJA involving conduct engaged in outside the US by members of the armed forces or by persons employed by or accompanying the armed forces abroad that would be a felony if committed in the US. A very interesting article. [Note: cf the position of the UK government and Part II of the Army Act 1955].
This is a PDF file, 213K in size
.   Aspals

December 2000 Duress as a defence to war crimes and crimes against humanity Maj S C Newman, US MC Military Law Review,
Vol 166, at p.158
An excellent analysis of the defence as raised in the Erdemovic Appeal, highlighting the role that policy considerations played in the minds of the majority which, according to the author, degrades the value of decisions by other international tribunals.

Reinstatement: to serve and to protect Julian Fidler Emp. LJ 2000,
at pp.22-24
Julian Fidler examines the right of reservists under the Reserve Forces (Safeguard of Employment) Act 1985 to reinstatement in a position occupied before being called up for military service and the right to compensation if reinstatement does not occur.

August 2000
In Pursuit of Justice Bruce Houlder QC Counsel,
at p.22
Bruce Houlder QC encourages support for the Hague tribunals and the forthcoming International Criminal Court. He voices concerns over the close connection between the office of the prosecutor and the judges. Both are employed by the UN and some legal officers have swapped between the judicial office and the prosecutor. The chief prosecutor has access to the judges in a way the defence do not. The significant practical problems of such tribunals are also explored in some detail. However, most welcome the UN decree that the adversarial system shall be employed. Despite the drawbacks, he concludes that the courts are vital components in a free world and need to be supported.

30 June 2000 Legal Aid in courts martial John McKenzie NLJ
at p.987
Despite the title, the majority of column inches is dedicated to a sarcastic look at the Army Legal Services. While the article makes some interesting points, some facts are a little misleading. As is conceded, not all lawyers in the army actually prosecute. Those who do (about 30%) do carry out case preparation, Formal Preliminary Examinations and occasional military operational tasks as well. The demand for legal services over a wide and complex range of other areas has also had an effect on the need for lawyers. Complying with the HRA is a classic example. Consequently, it is incorrect to consider that the ALS principally channels its resources into prosecutions. As for conviction rates, most defence advocates will know that the suggestion that convictions are inevitable is something of an exaggeration. In line with those who appear regularly before the civilian criminal courts, the criticism over legal aid fees is loud and penetrating. Mr McKenzie's reference to article 6 ECHR should be read in the light of Procurator Fiscal, Fort William v McLean and Another, Times, 11 August 2000, where it was held that it is no human rights abuse to restrict legal aid.

April 2000 An avenging angel? Steven Powles Counsel, vol. 150,
at p.28
Just how successful will the ICC be in bringing the most evil people to justice and will the Pinochet decision tighten the noose? Steven Powles considers that despite the lofty aspirations of the ICC, it may fail to achieve its potential and will be unable, in most cases, to bring to justice the real culprits of human rights violations. Mr Powles points out that changes made to the statute substantially undermine the court's effectiveness. He cites Art 98 as a case in point as potentially thwarting any Pinochet-style future trial before the ICC.

April 2000
Who really runs the court-martial system? John Mackenzie New Law Journal, vol. 150,
at p.608
John Mackenzie questions the independence of the Court Martial Administration Office (CMAO) and the method of appointment of members to a court martial. An interesting article in which he refers to his successful challenge to the Permanent President of a court as a breach of Art 6(1). The subsequent suspension of PPCMs by the Army leads him to the conclusion that the CMAO is not independent because it was the Army and not CMAO who suspended the PPCMs. [But, perhaps all the Army did was remove from the pool of those eligible for selection by CMAO officers that they understandably felt were liable to challenge, thereby extending the list of those ineligible to sit].

7 April 2000
A fair and public trial John Mackenzie New Law Journal, vol. 150,
at p.516
John Mackenzie continues his criticism class="" of the court-martial system and considers that it can never be a satisfactory form of criminal trial if criteria such as those set down in the European Human Rights Convention are to be rigorously applied. He argues that a criminal jurisdiction administered almost entirely by serving or retired army personnel can never be independent or impartial. While well presented initially, he later seems to ignore the fact that the unnamed case he cites as emphasising the lack of impartiality was apparently scrutinised by the CMAC (not comprised of a board of officers) who actually dismissed the appeal. Mr Mackenzie also criticised the timing of the grant of legal aid.

31 December 1999 Superior orders and the International Criminal Court: Justice delivered or justice denied Charles Garraway International Review of the Red Cross
No. 836, p. 785-794
Charles Garraway looks at the defence of superior orders which is available, in narrow form, under Article 33 of the ICC statute. It has been argued by some that this is a dangerous withdrawal from the standards contained in the Charter of the International Military Tribunal at Nuremberg and followed in the Statutes of the ad hoc Tribunals for former Yugoslavia and Rwanda. The author argues that, far from being a withdrawal, article 33 in fact reflects both the traditional understanding of the law and is entirely consistent with the intentions of the drafters of the Nuremberg Charter.

December 1999 Not Quite A Gentleman Ann Lyon Journal of Armed Conflict Law,vol.4 No.2, Dec 1999,
at pp.215-42
Ann Lyon produces an analysis of the notorious "Pople" case, making reference to the trial transcript, and poses some sensitive questions. The three services employed different codes of conduct. She considers it would be unwise to speculate as to whether we see in the proceedings in the case of Col. Pople a genuine instance of sexual harassment. However, she feels the dispassionate commentator is left with an unpleasant recognition that double standards were applied to the individuals concerned. If the services wish to continue to regulate the private lives of their members and to strive to enforce standards of behaviour higher than those imposed on civilians and appropriate to the special nature of their calling on all personnel, then so be it. But, she concludes, not only should there be no distinction on grounds of rank, except to impose higher standards on those in positions of authority, but also no distinction on grounds of gender.

December 1999 Peace Support Operations And Practical Legal Problems 'On The Ground' GR Rubin RUSI
at p.27
Professor Rubin outlines the legal and organisational arrangements which it is desirable, and indeed essential in most cases, for the British authorities or for the multinational organisation of which they are a component, to enter into with the receiving (or host) nation, in order to enable an effective deployment to take place. A very valuable article for "operational practitioners" which looks at real legal problems addressed especially in the difficult area of operations other than war.

November 1999
Section 69 of the Army Act 1955 Judge Advocate Camp (1999), 149 NLJ,
at p.1736
Judge Advocate Camp reviews the impact of Dodman and argues for the repeal of section 69, suggesting that the section presents considerable difficulties. He puts forward three principal reasons: (1) the charge can be drawn very widely, to cover all types of conduct; (2) it may be too easy to use the section to punish behaviour that may not really be prejudicial to good order and military discipline at all; and (3) it is very difficult for a soldier to know in advance whether his conduct falls within the section. In his view, the section is only redeemable if "blameworthiness" were restored.

June 1999
An introduction to the military justice system A S Paphiti Criminal Lawyer, 1999
at p.94, 1-7
Procedures for courts martial and nature of agreements governing jurisdiction over military personnel, accompanying civilians and dependants within territory of NATO member states. The submitted draft can be downloaded from this link.     Please note: this article relates to the old system. There have been many changes since, not least the Armed Forces Act 2006 which introduced a completely new standing court martial. The article is therefore of largely historic interest only

22 October 1999
The tide of history turns Martin Bowley QC (1999) 149 NLJ
at p. 1564
Martin Bowley urges the government to set time limits for an end to the Forces' ban on homosexual and lesbian recruits. He says that as long ago as February 1996 the then government was warned by First Treasury Counsel that the ban on lesbians and gay men in the Forces was likely to be found in breach of article 8 of the ECHR. He writes that in Strasbourg, the Government lost on almost every major issue. Only the Cypriot Judge Loucaides was persuaded by the "old and tired 'sensitivity in the showers' argument." Mr Bowley therefore considers it is time to end the administrative ban and that the Service Chiefs should be given a deadline within which to totally end the ban. Martin Bowley QC is president of the Bar Lesbian and Gay Group.

October 1999 A World-Wide Perspective On Change In Military Justice Eugene R. Fidell Air Force Review, 1999, at p.195
Aside from being a practising lawyer, Mr Fidell is also president of the National Institute of Military Justice. This paper was presented at the 1999 biennial meeting of the Inter-University Seminar on Armed Forces and Society, held in Baltimore, Maryland, USA. It looks at how Military Law, and the systems throughout the world applying it, is changing. In addition to these legal developments, there is a growing awareness on the part of military justice specialists of the need for collaborative efforts and exchange of information across national boundaries. Mr Fidell remarks that it is an unfortunate but undeniable fact that historically, American military justice jurisprudence has shown little interest in foreign military justice developments. The bar and the bench can share responsibility for arguments not made, or, if made, disregarded. But as far as the courts are concerned, the American military justice system pays precious little attention to developments in other countries' systems. He would like to see the US take more notice of foreign legal developments, through (1) encouraging the flow of information, (2) disseminating in ``hard copy'' all major decisions, statutes and regulations in the area, and (3) more frequent meetings of military justice experts, including judges, civilian practitioners and academics. An excellent article (available in Rich Text Format).

August 1999
The Permanent International Criminal Court Dominic McGoldrick [1999] Crim L.R.
at p.627
Prof McGoldrick examines the constitutional basis, composition, applicable law, exercise of jurisdiction and other important issues, including why the US voted against. This is a detailed article which is immensely informative and is a "must" for anyone interested in the future of international law.

1 July 1999 Crimes Against Humanity - The Struggle for Global Justice Geoffrey Robertson QC Allen Lane: Penguin Press

The Kosovo intervention and the extradition process against General Pinochet have helped write effectively into the books of International Law an idea that for a long time the self-interest of most states excluded: the idea that there are crimes against humanity and that action against those takes precedence over national sovereignty and most standard international agreements. Geoffrey Robertson is distinguished as a defence lawyer, and Crimes Against Humanity is a stunning indictment of the traditional toleration of inhumanity for the sake of a quiet international life which almost makes one glad that he never prosecutes.
   Roz Kaveney

June & July 1999
Sentencing in Courts-Martial Judge Advocate Camp (1999) 149 NLJ
Part 1 at p.850
Part 2 at p.940
A very helpful two-part "walk through" the sentencing powers of courts-martial and standing civilian courts. Of the case of McEnhill, Judge Advocate Camp observes "It was plainly the view of the court that it was not incompatible with being a senior rank to assault female junior non-commissioned officers." He later comments that "The approach of the Court-Martial Appeal Court seems to suggest that even in cases where the breach of trust and breach of discipline may be very serious in the Service community, dismissal is not necessarily inevitable if the consequences to the accused are financially very grave."

August 1999  Armed Samaritans Marc Weller Counsel
at p.20
Marc Weller argues that the NATO intervention in Kosovo was legal. The UN Security Council granted no mandate for the forcible implementation of its aims, so a justification for the use of force could only be found in international customary law. The ethnic cleansing of Kosovar Albanians did not trigger a legal right to individual or collective self defence. Instead, NATO resorted to the justification of humanitarian intervention. He argues that, where a government loses control over significant parts of its territory to an indigenous rebel force, it also loses its power to represent at least in relation to issues concerning the use of force. He also comments that NATO targeting of the wider Yugoslav infrastructure will undoubtedly give rise to closer examination of proportionality in relation to forcible humanitarian operations.  

August 1999 Kosovo: An Illegal Intervention Michael Byers Counsel
at p.16
Michael Byers argues that a brief review of how international law is made, and changed, demonstrates that the NATO campaign was illegal. A right to humanitarian intervention does not exist and the events in Kosovo do not constitute a precedent in international law, in his opinion. Article 2(4) of the UN Charter does not confer support for humanitarian intervention. It states that all members shall refrain from the threat or use of force against the territorial integrity or political independence of any state. There are only 2 exceptions to this: (1) authorisation by the Security Council and (2) use of force in self-defence. Michael Byers considers that any argument that humanitarian intervention is legitimate, because it is not directed against the territorial integrity or political independence of the target state, runs directly contrary to the clear intentions behind article 2(4). He concludes that there is unequivocally no argument of jus cogens to support a right of humanitarian intervention and, furthermore, that might is not right. He reminds us of the Corfu Channel case, which regarded "... an alleged right of intervention as a policy of force..." which cannot find a place in international law, as "it would be reserved to the most powerful states".

June 1999  Appeal against Court Martial sentences: has anything changed? David Richards [1999] Crim. L.R.
at p.480
David Richards considers that, despite the changes introduced by the Armed Forces Act 1996, the plight of the soldier has not improved significantly. He highlights (a) the absence of bail pending trial; and (b) the approach of the CMAC to appeals against sentence. The CMAC will not interfere with a sentence, save in the most extreme cases, because disparity with civilian practice can be justified by the service context of the offence. He joins the criticism of Cooney et al which is a decision that offers no protection for soldiers. [In fact, we feel that decision essentially means that, the more the accused has to lose financially, the less likely he will be dismissed the Service. So, a soldier and a senior rank committing the same crime will be dealt with differently, purely on financial grounds. In our view, Cooney is a bad decision which does not do justice and places a senior rank in a more advantageous position than both a soldier and a civilian employee. In military society, generally speaking, a senior rank who has "gone bad" is a bigger evil than a young soldier offender and is much more difficult to re-employ within the service.

1999 Obeying Orders: Atrocity, Military Discipline and the Law of War Mark Osiel Order on-line
Mark Osiel demonstrates that he is the only person who can connect the philosphical ideas of obedience with the rich empirical investigation of how real people have reacted in the equally real situations when they are confronted with wicked orders and wicked laws.  Frederick Schauer, Harvard.
An excellent analysis of inter alia what causes soldiers to commit atrocities in furtherance of superior orders, with many practical illustrative examples. Prof Osiel also looks at how, through use of imprecise language, superiors can avoid liability for the acts of their subordinates. He considers methods of training and he challenges the effectiveness of the manifest illegality defence and proposes replacing it with a rule requiring soldiers to disobey all illegal orders unless reasonably convinced of their legality. Commanders may find this too radical an approach, as they will be in possession of far more information concerning the overall operational plan, whereas the soldier is only aware of that small part in which he participates. As Prof Osiel recognises, this difference could be crucial. The military promotes a culture of obedience. Although the manifest illegality rule is more generous to the soldier, in our view it does recognise that decisions sometimes have to be taken in exceptionally difficult circumstances and that complying with an order in such circumstances should negative the mens rea of the soldier and shift the onus for responsibility onto the superior who, in possession of the facts, gave the order in the first place. Prof Osiel does not deny that his proposal will make soldiering even harder than it already is. He concludes that the challenge is to help the professional soldier acquire a deeper appreciation of the morally problematic features of his calling.
This is a very worthwhile book and will appeal to academics, military law practitioners and serving officers alike.

May 1999 Not Fit To Fight The Cultural Subversion of the Armed Forces in Britain & America Gerald Frost ed. Social Affairs Unit ,
75 pages
Order on-line
A series of six essays written by different authors, four British, two American. The initial chapter, written by the editor, questions whether modern social, economic and political philosophies can be applied to the Armed Forces without compromising their effectiveness. The remaining contributions each consider this overall issue in relation to a specific field, concentrating on matters of practicality rather than ideology.
Mr Frost and his collaborators make it clear that the present-day philosophy of 'rights above all', most particularly in the field of sex equality, sits most uneasily with traditional military philosophy, emphasising as it does duty, responsibility and Service and comrades above self, even unto death. They argue that the traditional philosophy is essential to military efficiency, indeed that military virtues evolved in order to produce that efficiency, and that concepts the civilian world holds dear cannot be introduced into the Services without compromising their effectiveness.
The Social Affairs Unit have never been afraid of questioning present-day sacred cows, and this is particularly true of the essays concerning sex equality and the admission of homosexuals into the Armed Forces. Kate O'Beirne, one of the two American contributors, deals with the sex equality issue in an essay provocatively titled 'The war machine as child minder' and adduces some interesting evidence from the American experience to demonstrate very clearly that the insistence on applying civilian concepts of 'equal opportunities' to the Armed Forces has created far more difficulties than it has solved. I note that in the same week as I received this volume for review, a Lance Corporal in the Royal Signals and unmarried mother brought a claim of sexual discrimination to an Employment Tribunal, alleging, inter alia, that she had been discriminated against in being deployed to Bosnia with her unit shortly after returning from maternity leave. It is submitted that such claims are the inevitable consequence of the Services abandoning their former policy of discharging their women members who became pregnant, and reflect a failure of the claimants concerned to appreciate that equality in the proper sense involves burdens as well as benefits.
The topical and controversial subject of homosexuals in the Armed Forces is addressed by Air Chief Marshal Sir Michael Armitage, who, like Kate O'Beirne, stresses practicalities rather than ideologies, although he makes the telling point that if the 'Gay Rights' lobby are talking about the 'right' of homosexuals to choose to serve in the Armed Forces, why then is the 'right' of those who would prefer not to serve alongside known homosexuals (the overwhelming majority of servicemen, according to a recent MOD survey) not considered?
What is to be done? All contributors to a greater or lesser extent raise the problem of the increasing separation between the Services and those with influence over defence policy. Julian Brazier MP, a former member of the Territorial Army and currently a member of the House of Commons Defence Select Committee, examines the mechanisms which exist for linking the military with the civilian world, and concludes, rather despairingly, that though the links which do exist are useful, they are on too small a scale to have a significant effect, and the present Government's proposals to cut the Reserve Forces will only make matters worse.
All told, an interesting and thought-provoking read.
 Ann Lyon

1999 The Principle of Discrimination in 21st Century Warfare Michael N. Schmit Vol. 2 [1999], Iss. 1, Art. 3,
at p.143
In this article, Professor Schmitt addresses changes in military technology and the implications of these changes for the humanitarian law of war, with particular focus on the principle of discrimination. Evolution in the machinery of warfare can be expected to improve the precision with which objects may be targeted. At the same time, this evolution may complicate considerations of what constitutes a legally permissible target. As technologically advanced militaries become increasingly interdependent with the infrastructure of civilian life, the line between legal military objectives and protected civilian objects may become blurred. The international legal questions posed by this change will be particularly thorny in the case of warfare between technologically advanced military powers and less developed nations. In the short term, technologically disadvantaged States might have incentives to support a broad definition of legally permissible targets. Alternately, they might support a subjective standard, in which the technological capacity of a belligerent State partially determines its legal obligations. Professor Schmitt argues, however, that such an expansion of permissible military objectives would not only disserve the goals of humanitarian law, but ultimately prove disadvantageous to all States.
Summary extracted by  Publishers

Feb 1999 Tommy this and Tommy that and Tommy wait outside Ann Lyon (1999) 149 NLJ,
at p.465
A critical look at the decision in R-v-Ministry of Defence, Ex parte Walker which highlights a further gap in the system, as the case concerns not liability in tort, but the availability of compensation under a statutory scheme set up precisely in order to redress some of the imbalance between servicemen and civilian.
[Comment: There is a system for reimbursement by the UN which specifically provides for compensation for those injured in the performance of UN duties. That factor, with respect, seems to us to be a significant and pragmatic distinction to the ordinary case of soldiers injured during the course of operational duty. Here, the compensation is recoverable from a third party.]

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