1 QLR Case.Link to 1 QLR Case/Mousa Inquiry
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France sends combat troops to Ukraine battlefront
France has sent its first troops officially to Ukraine. They have been deployed in support of the Ukrainian 54th Independent Mechanized Brigade in Slavyansk. The French soldiers are drawn from France's 3rd Infantry Regiment, which is one of the main elements of France's Foreign Legion (Légion étrangère). In 2022 France had a number of Ukrainians and Russians in the Foreign Legion. They were allowed to leave the Legion and, in the case of the Ukrainians, return to Ukraine to join Ukrainian forces. It isn't clear if the Russians returned home. One of the questions to immediately arise from France's decision to send soldiers from its 3rd Infantry Regiment is whether this crosses the Russian red line on NATO involvement in Ukraine? Will the Russians see this as initiating a wider war beyond Ukraine's borders? A key question is how NATO will react to the French decision to deploy. As France is acting on its own without NATO's backing, the French cannot claim support from NATO under its famous Article 5, the collective security component of the NATO Treaty.
Original by Stephen Bryen who served as staff director of the Near East Subcommittee of the Senate Foreign Relations Committee and as a deputy undersecretary of defense for policy. This article was first published on his Weapons and Strategy Substack and is republished with permission. France has officially denied this report and has labelled it "disinformation". Stephen Bryen's Substack post is available [here].
[Asia Times,May 4, 2024]   back to the top

Canadian Supreme Court Confirms That Military Judges Do Not Undermine Impartiality of the Court Martial
The nine accused challenged the statutory requirement that the military judges presiding over their courts martial be officers, alleging that it violates their right to a hearing by an independent and impartial tribunal under s. 11(d) of the Charter. In the courts martial, some of the military judges held that they lacked judicial independence by reason of their dual status of judge and officer, and therefore that the respective accused's s. 11(d) rights were infringed. The Court Martial Appeal Court (“CMAC”) held that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that military judges meet the minimum constitutional norms of impartiality and independence, and therefore that the accused's s.11(d) rights were not infringed. Held: (Karakatsanis J. dissenting): The appeals should be dismissed. The Supreme Court does not appear to have even remotely considered any of the European jurisprudence on the matter, least of all the cases of Findlay, Skuse, Grieves and Dundon.
[[2024], 2024 SCC 15 (CanLII)   back to the top

UK lawyer to oversee ICC investigation into alleged war crimes in Palestinian territories
Andrew Cayley KC, previously Britain's chief military prosecutor, to run operation of the complex case. Andrew Cayley KC, a barrister and former military prosecutor, has recently joined the ICC after he was chosen by the court's chief prosecutor, Karim Khan KC, to lead the high-profile investigation. Cayley is expected to take responsibility for the day-to-day running of the complex case and will work on the investigation with an American lawyer, Brenda Hollis. He will report directly to Khan, also a British barrister. The new appointment comes as Khan has moved to accelerate the ICC's Palestine investigation, opened in 2021, and provide it with additional resources in the wake of the 7 October Hamas attacks and Israel's retaliatory war in Gaza. Khan has put all parties involved in the war “on notice” and indicated that his office is “actively investigating” the current situation in Gaza.
[The Guardian, 11 March 2024]   back to the top

Independent investigator: Elements of UK government behind Nord Stream attacks
A systematic analysis of the available evidence points to "elements of the British government" as the most likely perpetrators of the pipeline bombings. This according to an independent Finnish data analyst and researcher who has conducted what he calls "the only public, open Nordstream investigation". The enigmatic 'data detective' believes the attacks were most likely carried out by the Royal Navy's DTXG elite diving team, operating from the British nuclear submarine HMS Ambush (S120).
[The Nordic Times, 13 February 2024]   back to the top

Australian soldier, Ben Roberts-Smith VC, appeals war crimes defamation loss
Ben Roberts-Smith, who was a member of Australia's elite Special Air Service regiment, sued three Australian newspapers over stories printed in 2018 that alleged he was involved in the killings of unarmed Afghan prisoners. The ex-soldier lost the multi-million-dollar courtroom battle in June 2023, with a judge finding the newspapers had proven that the bulk of their allegations were "substantially" true.
[Justice Info, 4 February 2024]   back to the top

Ready for War? - House of Commons Defence Committee
It is unacceptable that for much of this inquiry, the Committee has been hampered in its attempts to assess readiness by a lack of Government transparency. Key information that was readily available a decade ago is no longer published for reasons that are unclear, and the Government has taken excessive time to respond to requests for information. The Committee cannot adequately fulfil its duty to the House of Commons and to the electorate to hold the Government to account for its decisions without fuller and more timely access to information about these sensitive but vitally important issues that are central to its remit. The Committee expects the Government to work with it to design a more balanced framework to allow it and future Defence Committees to scrutinise readiness.
The UK Armed Forces have deployed above their capacity in response to the worsening security situation, but all have capability shortfalls and stockpile shortages, and are losing personnel faster than they can recruit them. They are also consistently overstretched, and this has negatively impacted retention as well as delaying the development of warfighting readiness. Either the Ministry of Defence must be fully funded to engage in operations whilst also developing warfighting readiness; or the Government must reduce the operational burden on the Armed Forces.
There is no easy answer to these problems.
[Report, 4 February 2024]   back to the top

Ukraine: Zelensky may soon oust military chief Zaluzhny
Rumors are making the rounds in Kiev that Ukrainian President Volodymyr Zelensky will fire the head of his armed forces, General Valerii Zaluzhny. Zelensky and Zaluzhny have been at odds for some time. The excuse is likely to be losses in and around Avdeevka, which is a Ukrainian military stronghold just north of Donetsk. The rumor says that Kyrylo Budanov, head of military intelligence, will replace Zaluzhny. Field reports show that the Russians have advanced in the southern part of the town, with the Russian operation gaining momentum and strength as new troops are poured into the fight. Europe has little to fall back on, as its security is acutely dependent on the United States. Since the collapse of the Soviet Union, and perhaps well before, the Europeans have focused on social spending and have invested little in defense programs. Worse still, many of them have sent their strategic reserve war materials to Ukraine, leaving them with empty shelves and warehouses.
The new Ukraine policy, if understood correctly, is designed to deal with the new reality that Ukraine will lose the war and Ukraine's government may need to evacuate Kiev. Putting Budanov in effective control, including for the relocation of Ukraine's capital, probably to Lviv, is the bedrock of the policy.
[Asia Times, January 23, 2024]   back to the top

SCOAF Annual Report 2022
The Annual Report for 2022, covering the Service Complaints Ombudsman for the Armed Forces, conceding that the system is still not yet operating in a way which is efficient, effective or fair. However, this should not detract from the progress that has been made. An optimistic note is sounded to the effect that real, lasting change is within reach.
[2022 Report]   back to the top

'US spy services' driver 'flees' UK after crash that broke nurse's ankles. Article VII of NATO SOFA or diplomatic immunity?
An American citizen "associated with the secret service" has left the UK despite "assurances" from his employer that he would not leave after a car crash that left a nurse unable to walk. Issac Calderon, 22, was due to appear in court on Dec 1 but is believed to have boarded a flight to Texas on Nov 25. Was he subject to the jurisdictional provisions of the NATO SOFA or those of article 31 of the Vienna Convention on Diplomatic Relations. Perhaps the US authorities were unhappy about the finding that "on duty" was a rebuttable resumption. Was this a predictable consequence of playing fast and lose with diplomatic immunity, however unpopular the consequences?
[Independent, December 11, 2023]   back to the top

Nord Stream Pipeline Environmental Crime
The Washington Post reveals that a senior Ukrainian military officer with deep ties to the country's intelligence services played a central role in the bombing of the Nord Stream natural gas pipelines in September last year, according to officials in Ukraine and elsewhere in Europe, as well as other people knowledgeable about the details of the covert operation, providing the most direct evidence to date tying Ukraine's military and security leadership to a controversial act of sabotage that has spawned multiple criminal investigations and that US and Western officials have called a dangerous attack on Europe's energy infrastructure. Roman Chervinsky, a decorated 48-year-old colonel who served in Ukraine's special operations forces, was the "coordinator" of the Nord Stream operation. The question remains, who actually carried it out. One thing is now for sure: it wasn't the Russians.
[Washington Post, November 11, 2023]   back to the top

Report of the Non-Statutory Inquiry (NSI)into The Red Arrows
Sexual harassment was 'normalised' on the RAF's Red Arrows team. The non-statutory inquiry (NSI) from the Ministry of Defence, which is heavily redacted, said sexual harassment and other forms of unacceptable behaviour on the elite squadron were widespread and “normalised”. It said behaviour could be "shockingly inappropriate" and "predatory".
[Personnel Today, 2 Nov 2023]
[Non-Statutory Inquiry – RAFAT and RAF Scampton Final Report, 1 Jul 2022] - NB. in §47 of this document there is a serious error in adverting to the prosecution threshold for conviction (alleged to be 98%) whereas the correct reference should have been to the threshold for prosecuting, which is the 'balance of probabilities' (more likely than not), namely 51%.
[Report into allegations of Command, Leadership and Management failings from within the RAF Aerobatic Team (RAFAT) dated 12 Dec 22, dated 21 Jul 23]   back to the top

Pakistan SC strikes down 'military justice' for civilians
In a judgement that was hailed widely across the political spectrum, a five-member bench of the Supreme Court declared unconstitutional by a majority of 4-1 the military trials of civilians for their alleged role in attacks on army installations. The order said the defendants "shall be tried by criminal courts of competent jurisdiction established under the ordinary and/or special law of the land in relation to such offences of which they may stand accused". AGP Mansoor Usman Awan told Dawn that the federal government will soon move an appeal against the decision. If the appeal is filed, the same, in accordance with the Supreme Court (Practice and Procedure) Act 2023, will be taken up by a larger bench consisting of judges not part of the present five-judge bench.
[Dawn, 24 October 2023]   back to the top

Service Accommodation - Request For Dispensation Denied
Letter dated 21st September 2023 from Robert Courts MP to Secretary of State following up on Service Accommodation over refusal of request for dispensation for serving Service Personnel to be allowed to contribute to the Inquiry into Service accommodation.
[Letter, 21 September 2023]   back to the top

Aviation Procurement: Winging it?
There was a consensus amongst Committee witnesses, including the MoD, that the ability of the UK's combat air fleet to deter aggression and to gain air superiority in a warfighting context had taken on a new significance as the prospect of conflict with a peer or near peer adversary had drawn closer. Against this backdrop, we heard widespread concern that the Command Paper cuts would leave the UK with simply too few combat aircraft to credibly deter and defend against aggression, with the fleet only around a third of the size it was at the end of the Cold War. Dr Sophy Antrobus argued that we need to be taking seriously deterring, and deterring by denial rather than ever trying to countenance deterrence by punishment, which means seriously reviewing our combat capability in the air. Whilst cautioning against like-for-like comparisons, she added that "there is no way of getting away from it: the number of fast jet combat aircraft and squadrons that the RAF has is a significant step back from where we were at the end of the Cold War."
[Tenth Report of Session 2022–23, 5 September 2023]   back to the top

Is the Wagner Group a Terrorist Organization? The answer could have wide-ranging implications for US policy in Africa and beyond
From Mali to Syria to Ukraine, the Kremlin-backed mercenary group Wagner has been accused of torturing, raping, and murdering civilians, prompting an effort on Washington's Capitol Hill to brand the group as a foreign terrorist organization, putting it on a par with the Islamic State. But the State Department, worried about the implications for US diplomacy in a host of African countries where Wagner is known to operate, is quietly pushing back, according to congressional sources and former government officials. The concern is that such a move could jeopardize US outreach to a handful of already unstable African countries, such as Mali and the Central African Republic, that could spiral into chaos if the Biden administration goes after Wagner too hard.
[Foreign Policy (Amy Mackinnon), July 26, 2023]   back to the top

USA: The Newport Manual on the Law of Naval Warfare
The Newport Manual on the Law of Naval Warfare is the first effort to restate the law of naval warfare as a purely lex lata exercise since 1955. It is designed to provide a practical guide for commanders and seafarers, lawyers and officials, and educators and students. In doing so, the Manual also factors in the developments in warfighting technologies in recent decades, which have significantly influenced the nature of war at sea.
[US Naval War College, 28 July 2023]   back to the top

USA: President Biden to Sign Executive Order Implementing Bipartisan Military Justice Reforms
President Biden will sign an Executive Order to implement historic, bipartisan military justice reforms that significantly strengthen how the military handles sexual assault cases. The Executive Order transfers key decision-making authorities from commanders to specialized, independent military prosecutors in cases of sexual assault, domestic violence, murder, and other serious offences by amending the Uniform Code of Military Justice (UCMJ).
[The White House, 28 July 2023]   back to the top

SAS must be named in inquiry into alleged unlawful killings, says Afghan families' lawyer
MoD acknowledged at preliminary hearing that ‘UK special forces' were present in Afghanistan. A partial admission by the defence secretary that UK special forces were present in Afghanistan risks discrediting a public inquiry investigating allegations of unlawful killings by the SAS, according to a lawyer representing victims' families. Richard Hermer KC said Ben Wallace had made only "a semi-concession" in a preliminary hearing on Wednesday, when the minister made a rare acknowledgment that "UK special forces" were present in Afghanistan. The inquiry, Hermer argued, should instead directly name the SAS – the elite force at the centre of allegations of 80 unlawful killings of Afghans between 2010 and 2013 – and not doing so would "infantilise the approach of this public inquiry".
[The Guardian, 5 July 2023]   back to the top

Afghanistan war crime allegations prompted US warnings about cooperation with Australia
The United States military warned Australia's defence chief that allegations of war crimes from Afghanistan may affect future cooperation with the SAS and Special Operations Command. Defence chief Angus Campbell has revealed he was advised in writing about American legislation known as "Leahy law", which prohibits American forces from assisting foreign units accused of gross violations of human rights. In March 2021, just months after the release of the damning Brereton inquiry, the United States embassy wrote to General Campbell to inform him of the possible legal concerns. The Brereton report released in November 2020 recommended 19 soldiers be investigated by police for the "murder" of 39 prisoners and civilians, and the cruel treatment of two others.
[ABC Net News, 31 May 2023]   back to the top

Should Have Known Better? The Standard of Knowledge for Command Responsibility in International Criminal Law
The concept of holding commanders responsible for the behaviour of their subordinates is as ancient as it is contentious. It is natural to refer to the Chinese strategist and philosopher Sun Tzu for one of the earliest expressions of the impact a commander has over the conduct of subordinates, dating back to the fifth century BCE: "When troops flee, are insubordinate, distressed, collapse in disorder, or are routed, it is the fault of the general. None of these disorders can be attributed to natural causes." The Roman statesman Cicero resounded the assertion that a commander must bear some responsibility for the transgressions of subordinates as far back as the first century BCE. Historically, various theatres of war have put to the test the question of command responsibility for crimes committed by subordinates, and judicial bodies subjected its legal implications to vehement discourse. This does not come as a surprise when one considers the high stakes involved in such criminal legal discourse where commanders face trial—and the potential loss of life or liberty—for atrocity crimes attributed to them, despite those crimes not being directly committed by the commander.
[International Law Studies]   back to the top

The Costs of War
This is an interesting site, created by Brown University, that examines the human cost in post-9/11 wars due to direct war violence and the reverberating effects of war. This currently stands at over 937,000 deaths. An estimated 3.6-3.7 million people have died indirectly in post-9/11 war zones, bringing the total death toll to at least 4.5-4.6 million and counting. Over 387,000 civilians have been killed as a result of the fighting. 38 million — the number of war refugees and displaced persons. The US federal price tag for the post-9/11 wars is over $8 trillion. The US government is conducting counterterror activities in 85 countries. The wars have been accompanied by violations of human rights and civil liberties, in the US and abroad.
[Brown University Website Link]   back to the top

A Russian fighter jet nearly brought down a British surveillance plane last September
This report, from the leaked trove of US intelligence documents, demonstrates that British support to Ukraine strays perilously close to direct involvement in the armed conflict there and could gravely raise the likelihood of a major escalation. So, it is perhaps no wonder that it was downplayed by both us and Russia. Nevertheless, It raises some interesting questions:
- Is the conducting of intelligence gathering, the purpose of which is to provide direct (eg for targeting Russian forces/personnel) or indirect (in assisting assessment of capabilities) assistance to Ukraine such that the United Kingdom is a party to the conflict there?
- Does this, to a large extent, depend upon how Russia perceives, rather than UK, the type of threat from this activity, to which it will say it is in an armed conflict with UK?
- Would this mean that, as UK is a member of NATO, lawfully defending a non-NATO member state in a war of choice by UK, any attack on UK would automatically trigger article 5 of the NATO Treaty?
- Does article 5 contemplate operation only in the case of an unprovoked attack on a NATO member state, which automatically triggers the alliance response, or is it a blanket guarantee that any war a member state enters into, voluntarily, against any other state, will mean that it is, ipso facto a NATO war involving the entire Alliance? That latter interpretation seems to be well outside the scope of article 5 and, importantly, the true purpose of the Alliance as defensive under art 51 of the UN Charter.
[Daily Telegraph, 9 April 2023]   back to the top

Ukraine Symposium – Landmines And The War In Ukraine
Human Rights Watch has documented the use of both anti-vehicle and anti-personnel landmines in Ukraine. Following reports that Ukraine is using anti-personnel landmines (APLs) in violation of the Ottawa Convention, the Ukrainian authorities acknowledged this allegation and reaffirmed the State's commitment to its international obligations. Because Ukraine and Russia have different legal obligations regarding landmines, this framework is complex. What is clear is that the use of APLs by Ukraine is unlawful in all circumstances. For Russia, the legality of employing APLs depends on the way they are used.
[Articles of War, 20 March 2023]   back to the top

The Legality Of Depleted Uranium Shells And Their Transfer To Ukraine
The decision by the United Kingdom (UK) in March 2023 to transfer depleted uranium tank shells to Ukraine provoked a fierce reaction from senior Russian political and military officials. President Vladimir Putin warned that Moscow would "respond accordingly, given that the collective West is starting to use weapons with a 'nuclear component'."Sergei Shoigu, Russia's Minister of Defence, claimed that the decision left "fewer and fewer steps" before a potential "nuclear collision" between Russia and the West. Given the heated rhetoric, this post assesses the legality under the law of armed conflict of the use of depleted uranium shells as a means of warfare, as well as the compatibility of the UK's decision on transfer with its obligations under international law, including disarmament law.
[Articles of War, 24 March 2023]   back to the top

The "I Want to Live" Program and The Rule of Surrender - The Legal And Practical Challenges Of Surrendering To Drones
As it relates to Ukraine's program, the LOAC imposes a general obligation to accept the surrender of the enemy. The 1907 Hague Convention IV, for example, prohibits killing or wounding an enemy "who, having laid down his arms, or having no longer means of defence, has surrendered at discretion" (Annexed Regulations, Art. 23(c)). Similarly, Additional Protocol I to the 1949 Geneva Conventions, to which Ukraine and Russia are parties, proscribes making a person who "clearly expresses an intention to surrender" the object of attack (Art. 41). This standard is widely considered to reflect customary international law (see International Committee of the Red Cross (ICRC) Customary International Law Study, Rule 47 and its related Practice).
But as Generals Wallace and Reeves emphasize, that duty is conditioned upon several legal requirements. For the obligation to attach, the enemy must unambiguously express a genuine intent to surrender (see US DoD's Law of War Manual, §; Oslo Manual, Rule 103(a)-(b)). While the precise manner of surrender may vary, the burden of demonstrating the requisite clarity rests on the surrendering party. Without a clear expression of genuine intent, belligerents are not obliged to presume the enemy has surrendered (see Commentary to Rule 103(b)).
[Articles of War, 8 February 2023]   back to the top

Kosovo Tribunal Convicts Former KLA Commander, Salih Mustafa, In First War Crimes Verdict.
Judges at the Kosovo tribunal on December 16 convicted and sentenced to 26 years in prison a former Kosovo Liberation Army (KLA) guerrilla commander who ran a prison during the 1998-99 independence conflict with Serbia. Salih Mustafa was found guilty of murder, arbitrary detention, and torture at the facility where prisoners, mostly fellow Kosovo Albanians who were political opponents of the KLA, were beaten and tortured on a daily basis.
Both sides have 30 days to appeal the decision.
The Kosovo Specialist Chambers, a Kosovo court based in the Netherlands and staffed by international judges and lawyers, was set up in 2015 to handle cases under Kosovo law against former KLA guerrillas. The court is separate from the United Nations tribunal for the former Yugoslavia.    [Judgment Available Here].
[RFERL, December 16, 2022]   back to the top

Armed Forces Act 2021 Provisions in Force
  1. The Armed Forces Act 2021 (Commencement No. 3) Regulations 2022 brought into force the following provisions of the 2021 Act,
  2. 1 November 2022:
    Section 11 of, and Schedule 4 to, the Act - Service Police: complaints, misconduct etc, for the purpose only of appointing the Service Police Complaints Commissioner.
    4 December 2022:
    Section 12 of, and Schedule 5 to, the Act - Framework for establishment of tri-service serious crime unit, and Schedule 5 (Tri-service serious crime unit) to the Act, in so far as they are not already in force.
    1 January 2023:
    Section 2 of, and Schedule 1 to, the Act (Constitution of the Court Martial), in so far as they are not already in force.
  3. The Armed Forces Act 2021 (Commencement No. 4) Regulations 2022 brought into force the following provisions of the 2021 Act
    On 22nd November 2022:
    Section 8 (armed forces covenant) of the Act, in so far as it is not already in force.
    Section 21 (time limit for appeals in respect of war pensions), in so far as it is not already in force.
  back to the top

NATO SOFA Jurisdiction - Article VII
The NATO-SOFA agreement (para VII 3(a)), states primary right to jurisdiction as regards offences 'arising out of any act or omission done in the performance of official duty' lies with the sending state. In a most interesting recent decision, involving a US service woman accused of causing death of a UK citizen by careless driving, the Deputy District Judge, as a preliminary matter, rejected the certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by her, arose out of and in the course of her duty as a member of that force, and which should have been sufficient evidence of that fact unless the contrary is proved. The case was directed to proceed to trial. The judge found there was a lack of precise definition as to how the scope of official duty is dealt with by the issuing of a certificate by the US relevant authority. He considered it provides a rebuttable presumption on whether an accused was acting in the performance of official duty.
The case has clear ramifications for other NATO forces - including British Forces stationed in NATO countries. See also the Saccoolas case, involving the death of Harry Dunn. Was the application of Smith v Stages (concerned with an issue of vicarious liability) on all fours with a case such as this, which was based on jurisdiction arrangements under treaty? The Sending State's certificate was therefore of especial importance. As the judge's determination effectively overrides the Sending State certificate and, by implication, casts doubt on its bona fides, this interpretation could in future lead to sending states immediately repatriating their service personnel who face criminal charges in the civilian courts of the host nation and leave their own military justice system to deal with the allegation(s) against them.
[Record of Decision, 11 November 2022 (delivered 23 November 2022)]   back to the top

Armed Forces Act 2021 Provisions in Force
  1. The Armed Forces Act 2021 (Commencement No. 1) Regulations 2022 brought into force the following provisions of the 2021 Act,
  2. On 1st May 2022:
    (a) section 3 (nomination of Circuit judge to sit as judge advocate);
    (b) section 7 (concurrent jurisdiction) so far as it inserts section 320A (guidance on exercise of criminal
    jurisdiction: England and Wales) into the Armed Forces Act 2006(1); (c) section 13 (power of commanding officer to award service detention: Royal Marines);
    (d) section 18 (rehabilitation periods: England and Wales for a severe reprimand or reprimand).
    [SI accessible here]
  3. The Armed Forces Act 2021 (Commencement No. 2) Regulations 2022 brought into force.
  4. On 15th June 2022:
    Section 10 of, and Schedule 3 to, the Armed Forces Act 2021 (service complaints appeals), in so far as they are not already in force.
  5. The Armed Forces (Service Court Rules) (Amendment) Rules 2022
  6. On 4th July 2022
    the following provisions came into force and amend the Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009,
    a. the Armed Forces (Court Martial) Rules 2009 and
    b. the Armed Forces (Service Civilian Court) Rules 2009.
    These amendments relate to the provision of special measures for vulnerable and intimidated witnesses in proceedings in the service courts (inserted into the 2006 Act by the 2021 Act).
  back to the top

The Escalating Military Use Of The Zaporizhzhia Nuclear Plant
This is a useful discussion by Tom Dannenbaum on whether the conflicting allegations about Zaporizhzhia Nuclear Plant, and the uses it is put to by Russia, which is holding it, constitute a breach of the provisions of Additional Protocol I protecting works containing dangerous forces and the associated war crime. The article draws on Additional Protocol I and the International Criminal Court (ICC) Statute to analyze the legal issues arising from Russia's alleged military use of the plant, the call for a demilitarized zone, and the threatened Ukrainian response. Both Russia and Ukraine are States Parties to Protocol I, rendering the treaty straightforwardly applicable to the international armed conflict between them (see arts. 1 and 96). ICC jurisdiction arises from Ukraine's 2015 declaration under Article 12(3) of the Court's Statute.
[22 August, 2022].   back to the top

Concerns over the fairness of trials of Russian forces before Ukrainian domestic courts
The trial of Sgt Shishimirin, charged and convicted of shooting a Ukrainian civilian who was on the phone, raised serious concerns about fairness and the willingness of Ukraine's domestic courts to apply IHL. Are domestic courts of a party to a conflict ever the best forum for trying enemy combatants? Shishimirin's admission to killing the civilian was never placed within the context of LOAC, nor the belief that the civilian was alerting Ukrainian authorities to the presence of the Russians and was, therefore, a person directly participating in hostilities (and a lawful target), nor the requirement for manifest illegality of an order.
The Trial of Russian Private Alexander Bobikin and Corporal Alexander Ivanov raised similar concerns to Shishimirin's trial. They were were assigned to a BM-21 battery. The BM-21, known as the "Grad," is a self-propelled 122 mm multiple rocket launcher that fires 2.8-meter-long rockets with different 20 kg warheads, though the most common is high-explosive. The range of the Grad firing high explosive rockets is 20 kilometres. The Grad is an area fire weapon, the employment of which uses a large number of rockets fired by multiple launchers at area. They were charged with violating the rules of warfare under Part 1 of Article 438 of the Ukrainian Criminal Code. Both soldiers claimed they didn't know the intended targets they fired at and only learned of the damage to civilian objects during the investigation. Forensic teams were unable to link the positions the Russian [Grad] battery was firing from to Corporal Ivanov and Private Bobikin's vehicle. Not recognizing the combatant's privilege led the trial court not to consider the immunity attached to it. It is invalid to claim that the mere fact rockets from the Grad battery struck civilian objects equates to the strikes being illegal.
The ability and/or desirability of domestic courts trying combatants raises serious fair trial issues, as these trials make clear
Articles of War, Chris Jenks [24 June, 2022].   back to the top

United States Military Law Reform - The Division of Authority Between the Special Trial Counsel and Commanders Under the Uniform Code of Military Justice: Planning Now for the Next Phase of Reform
In late 2021, Congress reformed the military justice system in a way that materially alters the traditional division of prosecutorial responsibility between nonlawyer military commanders and uniformed lawyers. That reform is consistent with trends among US allies and the continued evolution of the American military justice system. To aid Congress in deciding whether further changes are warranted, steps should be taken now to gather data on the effect of the reform. Although the services remain surprisingly autonomous in the administration of military justice, it is critical that the data gathered reflect common standards, definitions and reporting periods across service lines.
Lawfare:   Philip D. Cave, Don Christensen, Eugene R. Fidell, Brenner M. Fissell, Dan Maurer [February 28, 2022].   back to the top

Armed Forces' Pay Review Body Fiftieth Report 2021
The Armed Forces' Pay Review Body provides independent advice to the Prime Minister and the Secretary of State for Defence on the remuneration and charges for members of the Naval, Military and Air Forces of the Crown. This year, the scope of recommendations has been constrained by the government's public sector 'pay pause'. AFPRB were asked to set out a preferred option to implement the government's policy of providing a consolidated uplift of £250 for those Service personnel earning £24,000 or below. They recommend a mechanism that excludes X-Factor from the calculation of the threshold for payment. Their central recommendation is that rates of base pay for those earning £24,000 or below, with the threshold for payment calculated as base pay excluding X-Factor, be increased by £250 from 1 April 2021.
You can access the report:   [here].   back to the top

Report Of The Henriques Review Into The Framework, Processes And Skills That The Service Justice System Requires For Overseas Operations
A valuable report from former High Court Judge, Sir Richard Henriques which, among other matters, explores the summary justice system in the three services and highlights the issues with summary dealing by commanding officers. A proposal is for contested cases to be tried by a military magistrate (a Judge Advocate sitting alone) and in the event of a guilty finding the case should be remanded to the Commanding Officer for sentencing. Criminal convictions should be recorded by tribunals either learned in the law or instructed, as lay magistrates and jurors are, by those learned in the law.
As matters stand in England and Wales, a criminal conviction recorded after a Summary Hearing has the same standing & legal effect as a conviction after a trial by magistrates, District Judge or trial by Jury, notwithstanding there was no right of legal representation. The dangers of a wrongful conviction are very real and must not be underestimated, nor must the consequences to Service personnel returning to civilian life, blighted by a wrongful conviction. It is no answer to say that they could have appealed. How is the unrepresented to know that recklessness or dishonesty has been wrongly defined or that evidence has been unfairly admitted?
You can read the report:   [here].   back to the top

Service Inquiry Into The Death Of L/Cpl Bernard Mongan
LCpl Mongan was discovered in his Single Living Accommodation (SLA) at Bourlon Barracks on 23 Jan 20. He was on a temporary detachment from 1 Military Intelligence (MI) Bn (Catterick) to uplift 77 Bde (Hermitage), as part of an internal HQ 6 (UK) Div trawl, for the period from 2 Dec 19 to 7 Sep 20. The SP had been permitted by 1 MI Bn to retain his SLA in Catterick for personal reasons. He had attended a course (2 to 13 Dec 19) in preparation for his detachment and conducted a 77 Bde arrival package on 16 Dec 19. The SP was scheduled to spend parts of his Christmas/New Year leave (After Duties 16 Dec 19 to First Parade 7 Jan 20) within his SLA at Catterick.
The Inquiry identified several unit specific issues, and changes implemented, immediately following the death on 23 January 2020. All the panel's 49 recommendations were endorsed. They can be found at Part 1.5 of the report. Prior to finalisation of the report, but after completion of the Inquiry, a recommendation endorsement meeting was held with key stakeholders on 26 January 2021 at which each recommendation was agreed and allocated a Senior Point of Authority and a Subject Action Manager. Following the Convening Authority's endorsement of the Inquiry findings, I now formally endorse the Inquiry's recommendations, and will ensure they are logged onto the Defence Lessons Identified Management System and are monitored until implemented and closed.
You can read the redacted report:   [here].   back to the top

Protecting those who protect us: Women in the Armed Forces from Recruitment to Civilian Life
Female veterans are living with the legacy of their Service. While most go on to lead satisfying lives and benefit from their Service, some have life-changing trauma in consequence. Many feel their Service is not recognised. Furthermore, ex-military women do not always access male-focused transition services and veterans' services. In our survey, three-quarters of veteran respondents said the MOD was not helpful in their transition; over half said that their needs are not being met by current veteran services. Despite notable examples (such as the Salute Her service and the WRAC Association), there are very few specialised support services for female veterans in the UK. The inquiry explores the situation of and challenges facing women in the Armed Forces today (both Regulars and Reserves), from recruitment through in-Service experiences through to transition.
Second Report of Session 2021–22,  House of Commons,, 12 July.   back to the top

The Applicability of the EU Working TIme Directive to the Armed Forces
A Peliminary Ruling by the European Court of Justice, concerning the interpretation of Article 2 of the Working Time Directive 2003/88/EC of 4 November 2003 and its applicability to the armed forces of EU member states, was to the effect that, save in training or operation deployments, the Directive is applicable to the armed forces of Member States. At present, it is not believed that Brexit has resulted in substantive changes to workers' rights, although Britain has traditionally been keen to see the military as unsuited to the more extensive measures of the Directive. For the time being, [t]he UK's employment law regime remains, even with the regulations, a light touch regulatory one when compared to the rest of Europe..
See: B. K. v Republika Slovenija (Ministrstvo za obrambo) (2021), 15 July, Case No C-742/19.   back to the top

The Military Justice Handbook
The Military Justice Handbook, now in its second edition, provides a 'road map' to the key areas encountered when dealing with a Service justice case. There are many citations of relevant caselaw to assist in understanding how the courts (principally the Court Martial Appeal Court) deal with Court Martial cases. There is also information about legal aid availability and an outline of the process for applying. For Commanding Officers and discipline staff, there is detailed information about the summary processes, disciplinary awards and appeals to the Summary Appeal Court.
This book was inspired and supported by practitioners from the Association of Military Court Advocates (AMCA), which expressed the need for a text book for practitioners in this specialised field of law. Members provided input into the text and continue in their support to this military justice project.
You can read what practitioners say about the book, and obtain a copy from Howgate Publishing, at this link:   [here]. A more detailed explanation of the utility of the book to practitioners, judges, commanders and discipline staff is to be found [here].   back to the top

Jonathan Rees QC appointed Director SPA
Jonathan Rees QC was appointed Director of Service Prosecutions (DSP) in November 2020. He is a highly experienced criminal barrister and, at the time of his appointment, was listed as a leading criminal silk in Chambers and Partners and the Legal 500. He took silk in 2010 and practised from chambers at 2 Hare Court. During his 13 years as Treasury Counsel at the Old Bailey, he developed a wealth of experience prosecuting grave and complex cases, many of which attracted national media attention. For example, in recent years he prosecuted Stephen Port, 'the Grindr serial killer', and Darren Osborne, the man who carried out the Finsbury Park terror attack.
[15 January 2021]   back to the top

Final Report of the ICC Prosecutor - Situation in Iraq/UK
The Prosecutor announced the conclusion of the preliminary examination into the situation in Iraq/United Kingdom (UK) following a thorough process. She decided, as set out in the detailed report to close the preliminary examination and not to open an investigation. In 2014, her Office re-opened the preliminary examination into the situation in Iraq/UK on the basis of new information received. Since then,they have been rigorously examining allegations of crimes committed by UK nationals in Iraq during the course of the UK's military involvement in Iraq. In particular, the Office has focussed on a sub-set of allegations related to the mistreatment of Iraqi detainees in UK custody. The Office has previously found, and today confirmed, that there is a reasonable basis to believe that members of the British armed forces committed the war crimes of wilful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence. The Office has identified a confined number of incidents to reach this determination which, while not exhaustive, appear to correspond to the most serious allegations of violence against persons in UK custody.
[9 December 2020 ]   back to the top

Service Justice System - The Lyons Report
The Secretary of State for Defence informed the House that, after further and full consideration of an earlier decision announced in February 2020 in response to the service justice system (SJS) review, he has taken a decision to maintain jurisdictional concurrency when dealing with cases of murder, manslaughter and rape when committed by service personnel in the UK. Currently, decisions on which jurisdiction should deal with criminal offences in the UK by service personnel are made by the SJS and civilian justice system (CJS) policing and prosecutorial authorities on a case-by-case basis. His intent is to seek views on what improvements can be made to the protocols which guide those decisions and which have developed since Parliament last expressed its view on this subject. He did not explain from whom those views would be sought. In considering the recommendations made by the service justice system review, SoS concluded that, having agreed to take forward 79 other recommendations, including assurance around the quality of investigations, the SJS is capable of dealing with these offences when they occur in the UK, as well as overseas. He did not outline what the 79 recommendations to be taken forward are. [There is a clear need for transparency].

The SoS indicated that, insofar as jurisdictional matters go, he intends to bring forward proposals to place the arrangements for allocating cases between the SJS and CJS on a statutory basis. It is suggested this is not a good idea, unless the provision is loosely worded to allow for flexibility, along the lines of the Protocol.
[12 November 2020 ]   back to the top

The Brereton Report (redacted)
A report by Major General the Honourable Paul Brereton AM RFD – an experienced and senior Army Reserve Infantry Officer and a Judge of the Supreme Court of New South Wales – who inquired into rumours of serious misconduct by Australia's Special Forces in Afghanistan. Some of the rumours potentially disclosed war crimes. Following planned amendments to IGADF legislation, the then-Chief of the Defence Force directed an IGADF inquiry and the IGADF Afghanistan Inquiry continued on that basis. Major General Brereton's Report is detailed and comprehensive. It has three parts:
a. Part 1 – The Inquiry which provides background and context
b. Part 2 – Incidents and issues of interest which details allegations of wrongdoing and whether they have been substantiated or not, and
c. Part 3 – Strategic, operational, organisational and cultural issues which considers systemic issues.
The Report discloses allegations of 39 unlawful killings by or involving ADF members. The Report also discloses separate allegations that ADF members cruelly treated persons under their control. None of these alleged crimes was committed during the heat of battle. The alleged victims were noncombatants or no longer combatants.
[Redacted Report]   back to the top

Service Justice System Review - A Rejoinder to The Lyons Report
In early October, a rejoinder was submitted, to the Defence Select Committee, to some of the proposals in the report prepared by Judge Sean Lyons and Professor Sir Jon Murphy. The principal concerns in the rejoinder focus on the proposed changes to the court martial system which, as conceded by the authors of the report, has stood the test of time. The court martial is sui generis, and its flexibility and structure ensure that it underpins operational effectiveness. Therefore it is misleading to compare it with a Crown court, and the members of the Board (highly trained, and highly educated personnel managers, used to situation analysis) with the members of a jury. Without any data cited to demonstrate that the simple majority decision making process has led to any serious miscarriage of justice, such a recommendation is put forward, and thereby raises the prospect of hung trials - something that will undermine operational effectiveness. Indeed, the caselaw cited in the report expressly supports the system of simple majority decisions - a practice not unique to the courts of England. We need look no further than Scotland to see simple majority decisions in action. Across the channel, France and Belgium also operate simple majorities. The Defence Select Committee has failed to respond to or acknowledge receipt of the rejoinder. But this matter is too important for military lawyers to ignore. All advocates involved in the court martial system are strongly urged to voice their concerns over the report to the committee, before the Service Justice System is changed in a way that makes it a Service version of the Crown Court and not fit for the purposes of the three Services.
Members Access [1 November 2020]   back to the top

Oral evidence: Work of the Service Complaints Ombudsman, HC 881
Nicola Williams, the ombudsman for the Armed Forces, gave evidence to the House of Commons Defence Select COmmittee. The Service Complaints Ombudsman provides serving personnel and their families with an alternative point of contact outside the services' internal complaints systems. The ombudsman's office is independent of the MOD and the ombudsman is a Crown appointment. She believes there is a culture that discourages people from making service complaints when they have a legitimate right to do so. She is a barrister by background but has also been a part-time Crown Court judge for the last 10 years. Her judicial role—particularly because, as ombudsman, she has a quasi–judicial function—means that she can overturn and has overturned decisions from appeal bodies within the services. She does not adjudge the service complaints system as being efficient, effective and fair. The service complaints system is owned by the MOD. Expertise is not necessarily retained within each service complaint secretariat because, if people move on every two years, you do not have a body of knowledge that is retained. If you have people who do not stay longer than that you are at a disadvantage.
[13 October 2020]   back to the top

Judge Advocate General Appointment: Alan Large
The Queen has appointed Alan Macdonald Large to be the Judge Advocate General on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP, with effect from 1 October 2020. In addition, The Queen has appointed him to be a Circuit Judge on the advice of the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon. Alan Large, aged 59 will be known as His Honour Judge Large. He was called to the Bar (M) in 1988. He was appointed as a Recorder in 2005, as a Deputy Judge Advocate in 2008, and as an Assistant Judge Advocate since 2010.
  back to the top

Legal Protections for Armed Forces Personnel and Veterans
Public consultation on Legal Protections for Armed Forces Personnel and Veterans serving in operations outside the United Kingdom - the analysis and response of the Ministry of Defence. The Government is strongly opposed to Service personnel and veterans being subject to the threat of repeated investigations and potential prosecution in connection with historical operations many years after the events in question, the vast majority of whom have served this country with courage and distinction.
[Statement made on 17 September 2020]   back to the top

Andrew Cayley QC, Director of Service Prosecutions on trying rape allegations, and Iraq Cases.
Andrew Cayley, director of the Service Prosecution Authority, praised the experience of SPA rape prosecutors and emphatically refuted Emma Norton's claims that rape allegations against military personnel should be heard in civilian courts. He also explained that more than a thousand Iraq war accusations against British troops have been dismissed. The head of the military's prosecuting authority revealed yesterday that just one case - thought to be an allegation of unlawful killing - remained under investigation but that it was 'quite possible' there would be 'zero' charges brought against troops. Mr Cayley said that all inquiries would be wrapped up 'within weeks'. Independent investigators dismissed almost all allegations due to "low level" of offending & lack of credible evidence. Mr Cayley also told BBC Radio 4's Law in Action programme he was confident no action would be taken in a separate International Criminal Court (ICC) investigation into alleged abuses by British soldiers. Listen to the interview: [here]
[Telegraph, 2 June 2020]   back to the top

Women launch legal action to stop military courts trying UK rape cases
Two women from the army and one from the navy point to much lower conviction rate at courts martial. They are complaining that the conviction rate is five to six times lower than in civilian courts. They are seeking a judicial review after the defence secretary, Ben Wallace, said in February he was ignoring a recommendation that rape and other serious cases involving the military in the UK should routinely be handled by the police and Crown Prosecution Service (CPS). The women, who cannot be named, all say they were victims of rape or serious sexual assault while serving, but, although their cases were investigated by military authorities, none resulted in a conviction.
[Guardian, 3rd May 2020]   back to the top

Court Martial Trials - Coronavirus update 2 April 2020
Given the ongoing coronavirus pandemic, the Judge Advocate General has directed that the Military Courts will suspend all proceedings, except for urgent hearings (for example all matters relating to custody and urgent applications for arrest and search warrants) until at least 18 May 2020. Other high priority proceedings may take place if exceptionally approved by the Judge Advocate General. The Military Court Service will contact directly all participants in those proceedings that need to be relisted. A further direction will be given in due course in relation to hearings scheduled to take place.
Thanks to AMCA.   back to the top

Overseas Operations (Service Personnel and Veterans) Bill
The text of the Bill to make provision about legal proceedings and consideration of derogation from the European Convention on Human Rights in connection with operations of the armed forces outside the British Islands. There is a presumption against prosecution where the alleged conduct took place outside the British Islands at a time when the person was a member of the regular or reserve forces deployed on overseas operations. There is a proposed time-bar of 5 years. The Bill provides it is to be exceptional for a relevant prosecutor making a decision in such corcumstances to determine that proceedings should be brought against the person for the offence or, as the case may be, that the proceedings against the person for the offence should be continued.
[27 March 2020]
Thanks to Global Military Justice Reform, which has a deeper analysis of the provisions.   back to the top

Introduction to the Danish Military Justice System
A very interesting and insightful 24-page report explaining how the military justice system operates in Denmark. The Danish Military Criminal Justice System is an integral part of the general criminal justice system and abides by its fundamental principles of justice. Summary dealing may only occur for disciplinary infractions and there is no possibility for a CO to award any sentence depriving the offender's liberty. The military criminal justice procedures follow those applied in civilian criminal law with some differences due to the nature of military service. It is based on the adversarial process. Fundamental tenets are the presumption of innocence, the right of the defendant to remain silent in accordance with the prohibition against selfincrimination, the right of a defendant to be brought promptly before a judge when arrested and equality of arms between the prosecution and the defence counsel. Further, the burden of proof is placed on the Prosecution Service and the assessment of evidence by the courts is free, i.e. not bound by specific rules. The personal jurisdiction encompasses military personnel in active service and discharged military personnel in specified circumstances. During armed conflict, the jurisdiction extends to anyone serving in the armed forces or accompanying a unit thereof, including civilians.
[13 March 2020]   back to the top

Legal Considerations Related to the US Air Strike Against Qassem Soleimani
The author, the Hon. Paul C. Ney, Geis neral Counsel at the US Department of Defense. In this address to BYU Law School, he explains the legal basis upon which the United States relied for its January 2, 2020, air strike in Iraq targeting Qassem Soleimani, a major general in the Islamic Revolutionary Guard Corps of Iran, and the commander of an expeditionary Revolutionary Guards unit called the Qods Force. Among others also killed in the strike was Abu Mahdi al-Muhandis, the leader of Kata'ib Hizballah, also known as KH, a Qods Force-backed Shia militia in Iraq.
[4 March 2020]   back to the top

British soldiers 'over 50 times more likely' to be prosecuted for Troubles deaths than terrorists
Emergency legal action argues that veterans are being taken to court 'disproportionately. Soldiers are 54 times more likely to be prosecuted than terrorists over deaths during the Troubles, according to a legal claim lodged in the High Court accusing ministers of discriminating against British Army veterans. The emergency legal action was launched by a great-grandfather suffering kidney failure who goes on trial next month over a fatal shooting in Northern Ireland in 1974.
[Daily Telegraph, 26 February 2020]   back to the top

Ex-servicemen win payouts of more than £10million over Afghanistan injuries after they were blown up by Taliban bombs in inadequately armoured vehicles dubbed 'coffins on wheels'
Combat Immunity: Three former servicemen have been awarded more than £10 million in compensation each after 'inadequate' Ministry Of Defence vehicles failed to protect them from improvised explosives. They had been travelling in Pinzgauer troop carriers, nicknamed 'coffins on wheels' by UK troops because they provided inadequate blast protection from roadside explosives. 'It is to be hoped that in any future conflict our troops will be provided with the best equipment available before death or serious injury occurs.' This result is to be welcomed. This approach to liability for procurement decisions was supported in 2014 in the submission to Parliament: "UK Armed Forces: Legal framework for future operations."
[Daily Mail, 11 February 2020]   back to the top

The armed forces are all subject to positive obligations to protect the lives of those in their care
This is not a military case, and does not appear in the database. But it makes reference to a key point about the duty of care owed to servicemen and women, by the armed forces. That case law has extended the positive duty beyond the criminal justice context is not in doubt. The touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account. The Queen (on The Application Of Muriel Maguire) - and – Her Majesty's Senior Coroner For Blackpool And Fylde 2019] EWHC 1232 (Admin) 15/05/2019. [1 February 2020]   back to the top

2019 Military Strength Ranking
The complete Global Firepower list for 2019 puts the military powers of the world into full perspective. United Kingdom Military Strength is ranked at 8th place out of 137 countries, behind South Korea. With BREXIT remaining an unshakable topic heading into 2019, UK defense spending and capability will certainly be put to the test. The USA, then Russia, followed by China, India, France, and Japan are the countries ranked with the highest military strength. [15 January 2020]   back to the top

The Sandhurst regime that could change your life
Major General Paul Nanson's new book explains how a military routine can help us all reach our potential.The arcane routines of the Royal Military Academy Sandhurst, alma mater of Winston Churchill, the Duke of Cambridge and Duke of Sussex, and whose motto is 'Serve to Lead', may appear to have little relevance on civvy street. But Nanson, the 54-year-old Commandant of Sandhurst, hopes these are life lessons which most of us can apply to various degrees. Call it military mindfulness, if you will. Nanson has another phrase for it: "the pursuit of excellence" – and it all starts with a perfectly folded sock. [7 January 2020]   back to the top

Racism in armed force 'occurring with increasing and depressing frequency'
Nicola Williams, the service complaints ombudsman for the armed forces, called on the Ministry of Defence to do more to tackle racism among service personnel. Incidents of racism are occurring with "increasing and depressing frequency". The Ministry of Defence said it is committed to stamping out racism and that anyone behaving in such a way will be disciplined, discharged or dismissed. Ms Williams, who said she is waiting for the MoD to act on a number of her recommendations, told the BBC she "would not go as far" as to describe the Army as "institutionally racist". [19 December 2019]   back to the top

Lord Chief Justice's Annual Report 2019 - Court Martial System Reform
The annual report contains a reference to The Lyons Review of the Service Justice System, which reported in February 2019. Ministry of Defence Ministers are currently considering its recommendations. The recommendations are expected to set the framework for policy changes contributing to the next Armed Forces Act which is currently due to be brought into force in 2021. A number of recommendations will also require procedural rule changes and the Service Justice Rules Review Committee are looking at these. The rationalisation of the Court Martial hearing centres to two centres in Bulford and Catterick has worked well and has enhanced efficiency.
Among the recommendations in the Lyons report is a proposal to change the manner in which court martial members arrive at their decisions by suggesting that there should be a board of 6 of which at least 5 should agree. This is unsupported by CMAC decisions, and attempts to overrule Twaite, which it describes in Section 7.9 of the report, Recommendation 4, as "criticised as being inconsistent with the presumption of innocence and the requirement of proof beyond reasonable doubt." However, no jurisprudence from UK courts or the ECtHR is cited in support of this proposition. Indeed, the report refers to the binding nature of the decision (ibid, §8.2). Moreover, it cites no examples of any serious miscarriages of justice which have occurred as a result of majority decisions in the SJS. Were there to be one, the report would have then had to include a comparison with the miscarriages of justice in the civilian system which operates on the basis of a unanimity verdict. Consequently, the proposal on majority decision making does not appear to be evidenced based and is a matter of opinion, in conflict with the acknowledged binding nature of the CMAC decision in Twaite.
The MoD is considering the recommendations made on changes to the size and ranks available for Court Martial Boards and the move from a simple majority to the use of qualified majority verdicts. [November 2019]   back to the top

Competitive National Service - How the Scandinavian Model Can Be Adapted by the UK
A RUSI Occasional Paper by Elisabeth Braw. Major change for defence is underway in the form of Mobilise, Modernise, and Transform.3 Yet, in recognising new challenges and threats, and in seeking solutions, politicians and military leaders of most Western states, including the UK, have ignored any discussion of changing the all-volunteer approach to the armed forces. To many, even the word 'conscription' is toxic, with an aura of amateurism – or coercion – rather than the professionalism on which their own uniformed service has been based. Yet there are states across Europe where various forms of national defence service exist. These countries also boast high public acceptance of national service, including among the young people asked to serve. Indeed, in the countries discussed in this paper that feature selective conscription, there are many more candidates than positions for conscription positions, leading to a seemingly paradoxical situation where young people compete to participate in a scheme that is mandatory. [October 2019]   back to the top

Fairness without Fear: Work of the Service Complaints Ombudsman: Government Response to the Committee's Sixteenth Report of Session 2017–19
On 7 August 2019, the Defence Committee published its Sixteenth Report of Session 2017–19, Fairness without Fear: The work of the Service Complaints Ombudsman [HC 1889]. The response from the Government was received on 10 October 2019. MOD believes that everyone deserves to work in an environment where they are valued, and their grievances, whatever the subject matter, are treated seriously and with respect. Key to that is ensuring effective mechanisms are in place to deal with such instances. [21 October 2019]   back to the top

MoD still treating some military personnel in an 'immoral' way with 'no accountability for incompetence' say MPs
MoD accused of being "immoral and incompetent" as MPs say it is failing to uphold the Armed Forces covenant. The Defence Select Committee says the government has yet to tackle major concerns raised in its previous reports on the Armed Forces Covenant, according to its latest update which is published today. Among other long-standing concerns the report highlighted problems related to Commonwealth personnel and their families and Service accommodation, saying many issues remain unresolved despite years of failure. The report criticised the practice of expecting Commonwealth personnel to serve in the Armed Forces without paying them enough to bring their families to the UK, for years in some cases. [25 September 2019]   back to the top

Fairness without Fear: The work of the Service Complaints Ombudsman
The Service Complaints Ombudsman for the Armed Forces (SCOAF) was established in 2016 by the Armed Forces (Service Complaints and Financial Assistance) Act 2015. SCOAF replaced the Office of the Service Complaints Commissioner (operational from 2008–2015) as part of a wide range of reforms to the overall Service complaints process. On 9 January 2019, an inquiry was launched into the Work of the Service Complaints Ombudsman to examine the progress of the reformed complaints system. One of the conclusions was that the organisaiton was under-resourced, leading to delays in dealing with complaints. [7 August 2019]   back to the top

China's National Defense in the New Era
Today, with their interests and security intertwined, people across the world are becoming members of a community with a shared future. China is at a critical stage of completing the building of a moderately prosperous society in all respects and embarking on the new journey of building a modernized socialist country in an all-round way. Socialism with Chinese characteristics has entered a new era. The Chinese government is issuing China's National Defense in the New Era to expound on China's defensive national defense policy and explain the practice, purposes and significance of China's efforts to build a fortified national defense and a strong military, with a view to helping the international community better understand China's national defense. [Read More]   back to the top

Boris Johnson vows to end witch-hunt against Northern Ireland veterans
Mr Johnson told the 1922 committee of backbenchers that it was time to 'put a stop' to prosecution of troops over historic incidents during the Troubles.According to one of those present, he said: 'This issue cropped up again and again in the hustings around the country. Unless there is absolutely compelling new evidence it is totally wrong that these people who served their country should be investigated and re-investigated. When I am Prime Minister I am going to put a stop to it.' [Read More]   back to the top

Military Justice: Second-Rate Justice
A scathing report from Liberty, criticising the Service Justice System identifying that there remains, running through all of the challenges in this report, a common thread of hostility or suspicion towards any independent oversight or outside involvement in how the armed forces operates or governs aspects of itself. The message received from many quarters is: let us deal with our people, we know what is best for them. On the contrary, Liberty believes that the rights of service men and women are just as deserving of protection as those of civilians. [Read More]   back to the top

A brief guide to previous British defence reviews
This Commons Library paper provides a short guide to the main recommendations of the defence reviews that have taken place since the end of the Second World War, and whether those recommendations subsequently lived up to events. [Monday, July 9, 2018].
Download the full report [here].   back to the top

Armed Forces Covenant Annual Report 2017
The principles of the Armed Forces Covenant are enshrined in law. Therefore, it is the responsibility of the whole of Government to ensure that they are being successfully communicated and implemented. This cannot be done by the Ministry of Defence (MoD) alone. The Government has acknowledged the need for stronger governance structures for the implementation and delivery of the Covenant. The establishment of the Veterans Board and the appointment of 'lead' Ministers in each relevant Government Department is welcomed. However, delivery of the Covenant is also UK-wide and the Government is called upon to ensure the full participation of the devolved administrations in the governance of the Covenant, especially as part of the Veterans Board. This will help ensure uniformity of delivery and the sharing of best practice.. [Report].
Government Response, on the Armed Forces Covenant Annual Report 2017, Published: 26 September 2018, available [here]   back to the top

Beyond 2 per cent: A preliminary report on the Modernising Defence Programme
In this preliminary report ahead of the Modernising Defence Programme (MDP) defence policy review reaching its conclusions, the Committee makes a number of observations on capability and force structure, recruitment and retention, international partnerships, business and commercial practices and defence expenditure that it would expect to be explored in the course of the MDP. This is a 'broad brush' exercise based both on the evidence received and on the conclusions of reports produced since November 2015. In its view this settlement should be based on a level of defence expenditure approaching the figure of 3% of GDP which the United Kingdom still maintained as late as the mid-1990s. Whenever the Committee ask about the place of Defence in our national priorities, it is met with the mantra that "Defence is the first duty of Government". The Modernising Defence Programme provides this Government with a perfect opportunity to show that it means what it says. Whilst old threats have reappeared and new ones have arisen, recent ones have not disappeared. The uncertainty of the future mandates a properly balanced force structure, capable of continuing the fight against terror and extremism, containing and deterring state-based adversaries, and sustaining the range of international commitments that support our strategic interests. [here].   back to the top

Lost in Translation? Afghan Interpreters and Other Locally Employed Civilians - Defence Committee 5th Report
During the United Kingdom's involvement in Afghanistan, British forces were supported by some 7,000 locally employed civilians (LECs), about half of whom fulfilled vital roles as interpreters. Serving alongside—and for—the British military, Afghan interpreters and other LECs were often exposed to extremely dangerous situations. There is a broad consensus that the UK owes them a great 'debt of gratitude'. This consensus has included the UK Government, which claims to have honoured that debt through two schemes established for LECs who served in Afghanistan: i)The Redundancy Scheme and ii) The Intimidation Scheme. Both Schemes have been the subject of substantial criticism from the media, former Service personnel and from LECs themselves.
Access the report [here].   back to the top

Lords call for an inquiry into the working of Section 42 of the Armed Forces Act 2006
Lord Morris of Aberavon and Lord Thomas QC raised concerns about the Service Justice System, focusing on the ability of the court martial to convict on a simple majority. Lord Morris expressed some concern whether a judge advocate is the best presiding judge for serious cases such as murder or rape. Only the most senior and experienced of circuit judges hear rape cases and they are licensed to do so—likewise with murder cases. "It is the fact of the rarity of such cases which calls into question whether a judge-advocate is the best form of tribunal." They also expressed concerns over the application of s.42 of the Armed Forces Act 2006, by which criminal offences could be tried by a military court. Lord Thomas paid tribute to judge Blackett, JAG, for his improvements to the system. He suggested that the time has come for a proper review of the Prosecutors protocol between the DSPA and the DPP to determine whether it is right that serious criminal cases do not automatically go to the Crown Court. Based upon his extensive experience as a court martial defence advocate, Lord Thomas expressed concern about cases which result from historic conduct where the court martial has jurisdiction over civilians because they were family members, not members of the Armed Forces. He agreed that, as the number of cases in the courts martial decreases, the experience of the judges becomes more important. In Lord Thomas' view, "a review would be welcome to everyone concerned with the administration of justice and, in particular, for the reputation of Her Majesty's Armed Forces. They are not well served by the present system."
[Hansard Debate, 23 November 2017], Volume 787   back to the top

EU Defence: the realisation of Permanent Structured Cooperation (PESCO)
On 13 November 2017, 23 EU Member States submitted a Joint Notification to the EU Council of Ministers setting out their intention to utilise the Permanent Structured Cooperation (PESCO) mechanism to further European defence (CSDP). A Decision formally launching PESCO is expected to be taken in December 2017 with the first capability projects launched in early 2018. The UK did not sign the Joint Notification and will, therefore, remain outside of PESCO. In doing so, the UK will have no decision making rights over its governance or veto over its future strategic direction.
[House of Commons Library, November 20, 2017]   back to the top

Armed Forces: Serious Crime
Lord Morris of Aberavon asked Her Majesty's Government what assessment they have made of the procedures for trying members of the armed forces for serious crimes such as murder; and whether they intend to consult on possible improvements to those procedures. The Minister of State, Ministry of Defence (Earl Howe) replied that, in preparation for the Armed Forces Bill in 2020, the government will review what the services need from the system of justice and whether the current provisions are the most effective means of delivering that. He did not anticipate any external consultation in delivering this, but the Government will consider any representations made. The Government's aim is that the service justice system mirrors where possible the provisions of the civilian criminal justice system. Any interested parties making representations to the Government on these issues as and when they think it appropriate would be welcomed. Lord Thomas of Gresford, Chairman of the Association of Military Court Advocates, suggested that the public had lost confidence in the trial by court martial of serious offences of service personnel. He suggested that cases of murder, rape and sexual offences, and of universal jurisdiction—war crimes and so on—should be tried by an ordinary jury in the Crown Court in this country, and that the days of having courts martial in far-flung places are long past. Earl Howe replied that the Prosecutor's protocol provides that cases with a civilian context are dealt with by the civilian criminal justice system, but where there is a service context it is important that the services can manage the case in question.
[Hansard, 5 September 2017, Volume 783]   back to the top

Armed Forces (Flexible Working) Bill (HL Bill 13)
This Bill proposes making provision for members of the regular forces to serve part-time or subject to geographic restrictions and seeks to amend Section 329 of the Armed Forces Act 2006 (terms and conditions of enlistment and service).
[Bill as Drafted]
[Latest news on the Bill].   back to the top

Protect Northern Ireland veterans with Statute of Limitations
Former British soldiers, who served in Northern Ireland up to the signing of the Belfast Agreement in 1998, should be protected by a Statute of Limitations preventing further investigation and prosecution of incidents which occurred between almost 20 and almost 50 years ago, says the Defence Committee in its report.
[Full Report, 25 April 2017]
[Conclusions and recommendations].   back to the top

Who guards the guardians? MoD support for former and serving personnel: Government Response to the Committee's Sixth Report
The Ministry of Defence (MoD) has a responsibility to support its personnel and veterans, in terms of ensuring that they have the correct welfare and legal support when they face legal proceedings, but also in helping to ensure that they are not subject to persistent claims which undermine their ability to do their job. It is a responsibility that the MoD takes extremely seriously and we are therefore grateful to the Committee for bringing these issues to the fore, and making some helpful recommendations for improvement. There MoD alludes to "a number of inaccuracies" in the Report, particularly on the legal framework within which Defence must operate, which in turn has led to an unfair characterisation of the Iraq Historic Allegations Team (IHAT) and its conduct.
[MoD response, 5 April 2017 to The Defence Committee Sixth Report of Session 2016–17, [HC 109], on 10 February 2017].   back to the top

UK military operations in Syria and Iraq - Second Report of Session 2016–17
The report is a valuable examination of the UK role in operations in Iraq and Syria. It is clear that, during the course of this inquiry the Committee wrote to the Secretary of State seeking clarification on the UK bombing campaign in Syria and Iraq."If the Government is to continue to justify and validate its policy of airstrikes in Syria, it must provide the necessary detail on what is being targeted and how those airstrikes directly support moderate forces on the ground which actually have a prospect of taking control. We therefore recommend that the MoD put this information into the public domain so that realistic judgements on the effectiveness of the UK's air operations in Syria can be made." However, the report does not address the legality of the interventions, especially in Syria where there is no UN mandate authorising any military action. Nor does the report look at the legality - and role - of the UK in arming opposition fighters, the logistical and training support given to them and the extent of any such support. These considerations are clearly germane to the question of legality - see the case of Nicaragua v. United States (ICJ, 27 June 1986), which decided inter alia, that "training, arming, equipping, financing and supplying [rebel] forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, had acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State."
In terms of "moderate fighters", Peter Ford, the former UK Ambassador to Syria described the existence of moderate opposition groups in Syria as "largely a figment of the imagination". In terms of the UK strategy in the Middle East and the wider strategy against extremism, the Committee found that "[w]hilst the progress in the military campaign to counter DAESH is beginning to gain momentum, the same cannot be said for the progress of political reform. A lack of political reform in Iraq, let alone Syria, may well undermine the military progress to date, removing the threat of DAESH only for it to be replaced by other groups posing similar or even greater threats." Moreover, recent interventions have required much more than mere military campaigns. It is clear that there is no single formula for success but that understanding the local political and cultural context, as well as the nature of the situation on the ground, is absolutely essential. The disparity between military effort and that on stabilisation is concerning. Whilst stabilisation does not carry the same cost as a military operation, the low priority placed on stabilisation did not reassure the Committee about Iraq's long-term future. They shall, therefore consider holding a further inquiry, especially in the light of the Chilcot Report, which will look at the way the UK intervenes—the decision-making process, the preparation and planning both for the military campaign and its aftermath, and the way that the UK Government ensures that it can maintain a solid commitment to a strategy which is comprehensive and achievable.
[Committee Report, 13 September 2016].   back to the top

Libya: Examination of intervention and collapse and the UK's future policy options - Third Report of Session 2016–17
In March 2011, the United Kingdom and France, with the support of the United States, led the international community to support an intervention in Libya to protect civilians from attacks by forces loyal to Muammar Gaddafi. This policy was not informed by accurate intelligence. In particular, the Government failed to identify that the threat to civilians was overstated and that the rebels included a significant Islamist element. By the summer of 2011, the limited intervention to protect civilians had drifted into an opportunist policy of regime change. That policy was not underpinned by a strategy to support and shape post-Gaddafi Libya. The result was political and economic collapse, inter-militia and inter-tribal warfare, humanitarian and migrant crises, widespread human rights violations, the spread of Gaddafi regime weapons across the region and the growth of ISIL in North Africa. Through his decision making in the National Security Council, former Prime Minister David Cameron was ultimately responsible for the failure to develop a coherent Libya strategy.
[Committee Report, 6 September 2016].   back to the top

The Chilcot Report
In 2003, for the first time since the Second World War, the United Kingdom took part in an opposed invasion and full-scale occupation of a sovereign State – Iraq. Cabinet decided on 17 March to join the US-led invasion of Iraq, assuming there was no last-minute capitulation by Saddam Hussein. That decision was ratified by Parliament the next day and implemented the night after that. The consequences of the invasion and of the conflict within Iraq which followed are still being felt in Iraq and the wider Middle East, as well as in the UK. It left families bereaved and many individuals wounded, mentally as well as physically. After harsh deprivation under Saddam Hussein's regime, the Iraqi people suffered further years of violence. The decision to use force – a very serious decision for any government to take – provoked profound controversy in relation to Iraq and became even more controversial when it was subsequently found that Iraq's programmes to develop and produce chemical, biological and nuclear weapons had been dismantled. It continues to shape debates on national security policy and the circumstances in which to intervene. This report is hugely important and, while not giving an overt opinion on the legality of the war, provides a strong intimation that it was, in fact, illegal. It is devastatingly frank in its criticisms of decision makers and MI6.
[Chilcot Report].   back to the top

Beyond endurance? Military exercises and the duty of care - House of Commons Defence Sub-Committee Third Report of Session 2015–16
The inquiry examined if effective processes exist for learning lessons from accidents and deaths that have occurred during such events and whether there was an appropriate level of accountability and sanction when failings occurred. Of particular concern was to find out if there were any systemic failings in the policies and practices of the MoD and the Armed Forces; the balance between potential risks in training, exercises and selection events with the need to maintain operational preparedness and effectiveness; the provision of medical services during training, exercises and selection events; the checks in place to manage the risk of Service personnel pushing themselves too hard; effective processes for capturing lessons from accidents and deaths during training, exercises and selection events; and how Coroners' recommendations following the deaths of Service personnel were implemented. The Committee recommended, inter alia, that the MoD conduct an analysis of whether Service law is fit for the purpose of holding people accountable for training supervision. It also was not persuaded that the military should be exempt in respect of hazardous training in preparation for operations or that Specialist Military Units should enjoy a complete exemption where gross neglect has occurred. Furthermore, it cannot be right that an individual can be prosecuted while the corporate body cannot. Accordingly, the Committee recommended that the military exemptions in the Corporate Manslaughter and Corporate Homicide Act 2007 be amended so that the MoD can be prosecuted if it has been subject to a Crown Censure from the Health and Safety Executive for a particular incident.
[Defence Committee Report].   back to the top

Shifting the goalposts? Defence expenditure and the 2% pledge
This report will be publicly available from the Defence Committee website on Thursday 21 April at 00.01am. The report will examine how the UK should manage its capabilities to engage with Russia where appropriate whilst mitigating military confrontation with Russia; explore the extent of UK understanding of the Russian use of multi-dimensional warfare, and the underlying culture and mind-set; and understand the extent to which the UK has adequate information about Russia's military capabilities and intentions, the main tools of Russian 'multi-dimensional'– also known as 'ambiguous' and 'hybrid'– warfare, and the capacity of the UK and NATO to respond.
[Defence Committee Page].   back to the top

UK military operations in Syria and Iraq inquiry
The House of Commons Defence Select Committee will be conducting an inquiry into UK military operations in Syria and Iraq. Submission deadline is Monday 11 January 2016
[Defence Committee Page - Link no longer active].   back to the top

Larium: response providing expert advice of the Surgeon General to the Committee's letter of 8 September 2015 about the use of the anti-malarial mefloquine in the Armed Forces
The Defence Secretary wrote that "Mefloquine is one of a number of anti-malarials we offer personnel. It is licensed in the UK by the Medicines and Health Products Regulatory Agency, based on the expert guidance of Public Health England's Advisory Committee for Malaria Prevention (ACMP). It is under continual review, but there are no countries where mefloquine has had its licence withdrawn. It is not a first line drug, and is used primarily in cases where other drugs would not be effective or appropriate for that person. Mefloquine makes up 1.2% of our anti-malarial stocks. The Department complies with national guidelines on Malaria Prevention, which are reviewed annually, with the latest updated version being issued on 16 September 2015. These continue to recommend mefolquine use as long as individual assessments are undertaken before prescribing. Since 2004/05, Defence policy has required mefloquine to be prescribed to Service personnel with the accompanying risk assessment.
The health and wellbeing of our people is paramount, In this and all matters."
Full letter available on the [Committee's website].   back to the top

Decision-making in Defence Policy: Government response to the Committee's Eleventh Report of Session 2014-15
On 26 March 2015, the Defence Committee published its Eleventh Report of Session 2014-15, Decision-making in Defence Policy (HC 682). The Report highlighted what it's predecessor Committee considered to be significant problems with the way in which military advice is provided by the Ministry of Defence as currently configured, and the negative impact this has on the quality of advice given to Ministers. A key suggestion of the Report was that the Chiefs of Staff should be constituted as the Military Sub-Committee of the National Security Council, in order to provide joint military and strategic advice from the professional heads of the Armed Forces. This was not addressed in the Response.
While the DC is content to publish the Government Response, it is yet again dissatisfied with its tone and content, which betray a worrying level of complacency. The Ministry of Defence will soon be facing a number of key policy challenges—the Strategic Defence and Security Review, the National Security Strategy and, ultimately, the Report of the Chilcot Inquiry. Addressing all these challenges will test the Department's ability to provide expert advice to Ministers. The DC is not yet convinced that the Department will pass this test and it intends to revisit this issue following the publication of the SDSR and the NSS.
The Government Response is appended to the Committee's Third Special Report of Session 2015-16, available on the [Committee's website].   back to the top

Defence Committee has written to the Ministry of Defence in support of granting asylum in the United Kingdom to 200 Afghan interpreters
200 Afghan interpreters worked for UK Armed Forces during our mission in Afghanistan. Many of them have been threatened with death by the Taliban. It was recently reported that at least one interpreter has been tortured and murdered after a failed attempt to flee the country. Others live in constant fear of their lives. Despite this clear and present threat to their safety, the Government continue to deny them asylum in the United Kingdom. The Defence Committee consider this to be a wholly unacceptable way to treat proven friends and allies. We would expect Defence Ministers and the Ministry of Defence to take the same robust view. [Letter to the Secretary of State]   back to the top

Defence Committee seeks answers on Lariam by MoD
Defence Committee has written to the Ministry of Defence requesting information on the use of Lariam. The use of Lariam has come under increasing scrutiny and it is clear that the drug does not command the universal support of members of our Armed Forces. The number of cases of military personnel reporting serious side-effects after taking Lariam is deeply disturbing and, as a consequence, the Defence Committee is minded to conduct an investigation into its use. The Committee asked for clarification of a number of issues. Amended link, as original removed by publisher [Letter to the Secretary of State]   back to the top

Cpl Long RMP, murdered at an Iraqi police station in Majar-al-Kabir, South East Iraq - family alleged breach of section 6 of the Human Rights Act 1998 by SoS
Corporal Paul Long was one of 6 British soldiers of the Royal Military Police, deployed as "C Section", who were unlawfully killed on 24 June 2003 by members of a crowd at an Iraqi police station in Majar-al-Kabir, South East Iraq. His mother Mrs Pat Long contended that the Secretary of State for Defence was in breach of section 6 of the Human Rights Act 1998. Her case in summary was that there has not been a sufficient investigation into the circumstances of the death and that this constitutes a breach of article 2 of the European Convention on Human Rights. The Court of Appeal held that the state had substantially discharged its investigative obligation under article 2 after a very thorough Board of Inquiry.  [Judgment on BAILII]   back to the top

Corporal's wife Caroline Salisbury jailed for three years after having sex with 14-year-old boy
An Army corporal's wife who had sex with a 14-year-old boy has been jailed for three years, after judges ruled her initial suspended sentence was unduly lenient. Caroline Salisbury, 28, befriended the boy while employed as a school bus monitor, groomed him and had sex with him on four occasions, despite being warned to stay away from the teenager. She pleaded guilty to four charges of sexual activity with a child in February this year and was handed a two year suspended sentence. The initial sentence of two-year's suspended imprisonment was referred by Attorney General Jeremy Wright as being unduly lenient, following complaints from the boy's family and an MP. [Daily Mail, 28 March 2015], [Independent, 4 June 2015]   back to the top

The Iraq Fatality Investigations
The consolidated report into the death of Nadheem Abdullah and the death of Hassan Abbas Said is now available. Anonymity rulings were made in relation to the identities of the soldiers concerned in the deaths of the 2 Iraqis, even though, in each case, criminal, trials were conducted and reported upon, and the identities of the main individuals disclosed and, therefore, known.
The Chairman, Sir George Newman, touched upon issues which the domestic courts and the ECtHR have also been addressing, albeit his view demonstrates a clearer understanding of the practical difficulties of soldiering. He recognised that "instant judgements which have to be made in the sort of circumstances I have had to consider appear to me to present a great challenge for soldiers in executing law and order functions in hostile and foreign theatres of operation." The Chairman found that, "as a whole the evidence demonstrated the existence of gaps in the VCP training and in particular the handling of uncooperative occupants of vehicles stopped or chased during a VCP in prevailing dangerous and volatile conditions such as those in Maysan Province in Iraq in May 2003." However, these "gaps in training" were not in any way a factor that was causative of the treatment inflicted on Mr Abdullah. The training received by the soldiers addressed the concept of using minimum force. In the case of Mr Said, it was said that the situation in "Maysan Province .... wasn't just a 'walk in the park'. Tension was high and it was an area that was frequently inflicted with bloody tribal feuds. People were 'ready' for things to happen all the time." This is the reality of life in an operational theatre.
The Report available is [here].   back to the top

Defence Select Committee 11th Report: Decision-making in Defence Policy
The report examines two examples of poor decision-making in the past. One Secretary of State claimed that he was not aware of being in the chain of command; some civilians seemed uncomfortable challenging military advice; and there was little sense of any long-term strategy underpinning the decisions. All this seems to have created a system which struggled to establish and prioritise defence objectives, evaluate alternative options available, or manage the risks of final decisions. Immensely important and costly decisions appear to have had remarkably uncertain foundations.
The Committee found that subsequent reforms, and the development of the National Security Council, have improved interdepartmental coordination, and brought clearer leadership, clearer accountability, clearer civilian control, and clearer opportunity for challenge. This was all a substantial improvement on the old decision-making system. But significant problems are still not addressed. There is a continuing lack of deep-country or subject expertise, and therefore, a lack of high-quality information or evidence available to decision-makers. More needs to be done to educate the key decision-makers better, and train them to think and act more strategically. Chairman of the Committee, Rory Stewart MP, says, "In both the Helmand and Carrier examples, the MoD seemed to have been poorly informed of the facts, which inevitably led to decision-makers misunderstanding the nature of the problems. Those responsible do not seem to have sought the right expert advice, or if they did, they ignored it. To compound that situation, there does not seem to have been a healthy culture of challenge within the chain of command. We are pleased that recent reforms have addressed the lack of clarity in decision-making. But there is more to be done."
Defence Committee Report available [here].   back to the top

Summary of the discussions held during the expert consultation on the administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations
In its resolution 25/4, the Human Rights Council requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to organize an expert consultation for an exchange of views on human rights considerations relating to the issues of administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations. The expert consultation was held on 24 November 2014 in Geneva. The present report was prepared by OHCHR pursuant to the request of the Council.
The main issues discussed during the consultation were independence, impartiality and competence of the judiciary, including military courts; the right to fair trial before courts, including military courts, and other procedural protections; the personal jurisdiction of military courts; and subject matter jurisdiction of military courts.
Link to the report [here].   back to the top

The Armed Forces Covenant in Action Part 5: Military Casualties, a review of progress
The Defence Committee published the Government response to the Committee's Fourth report on The Armed Forces Covenant in Action Part 5: Military Casualties, a review of progress on Friday 23 January at 11.00 am. The comments relate to, inter alia, Mental health of Armed Forces personnel, Support for Families, Support for the recovery of wounded, injured or sick personnel, and Hearing Damage. The issue of adequate and fair compensation for Service personnel and veterans with Service-related noise damage to hearing is an important one. Compensation for hearing loss ranges from a lump sum award of £6,000 up to £470,000, and more serious injuries will also include a tax-free index-linked Guaranteed Income Payment. Veterans under 75 are three and a half times more likely than the general population to report hearing difficulty.
The Armed Forces Covenant provides the assurance that the needs of all of those who have served in the Armed Forces and their families will continue to be met. The requirement under the Armed Forces Act for an annual report to be made to Parliament and the involvement of service charities and others in this process provides open and transparent public scrutiny of the ongoing commitment to delivering the Covenant.
Link to the report [here].   back to the top

Al-Sweady Inquiry Chairman's concluded Report laid before Parliament, Wednesday 17 December 2014
On 14 May 2004 armed Iraqi insurgents ambushed vehicles belonging to the Argyll and Sutherland Highlanders ("A&SH") near a permanent vehicle check point known to the military by its code name of "Danny Boy". Following a fierce battle, where soldiers displayed outstanding courage and bravery, many Iraqis were killed and a small number of British soldiers were wounded. The bodies of 20 dead Iraqis, together with nine captives, were taken back to Camp Abu Naji to assist in the identification of the Iraqi dead to see if there was amongst them an individual who was suspected of having been involved in the murder of six Royal Military Police ("RMP") in Al Majar al'Kabir in 2003. The nine live Iraqis were detained overnight at Camp Abu Naji and, the following day, transferred to the Divisional Temporary Detention Facility ("DTDF") at Shaibah, where they were detained for just over four months before being handed over to the Iraqi Criminal Justice System. Rumours began to circulate in Al Majar al'Kabir that not all of the 20 dead Iraqi had died on the battlefield and that a number of them had been murdered by British soldiers after having been taken alive to Camp Abu Naji. It was also said that, after their arrival at Camp Abu Naji, a number of the live Iraqis had been tortured or ill-treated and/or had been unlawfully detained. In proceedings for judicial review Khuder Karim Ashour Al-Sweady (witness 1) alleged that his nephew Hamid Al Sweady was one of a number of Iraqi nationals said to have been unlawfully killed whilst in the custody of British troops at Camp Abu Naji. Judicial Review Proceedings were postponed pending a proper investigation. The Inquiry was established for that purpose. The inquiry concluded (§737) "the vast majority of the allegations made against the British military, which this Inquiry was required to investigate (including, without exception, all the most serious allegations), were wholly and entirely without merit or justification. Very many of those baseless allegations were the product of deliberate and calculated lies on the part of those who made them and who then gave evidence to this Inquiry in order to support and perpetuate them. Other false allegations were the result of inappropriate and reckless speculation on the part of witnesses." The report criticised the Shooting Incident Review policy as leading to a possible breach of the obligation under article 2 ECHR to conduct a proper investigation. Detainee handling was found to be less than satisfactory in a number of respects. In contrast, he found the evidence of military witnesses "to be both truthful and reliable" [Access the Report]   back to the top

Global Seminar on Military Justice Reform
Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz Visiting Lecturer in Law at Yale Law School organized this event at Yale Law School, on 7-8th November 2014, which brought together military law experts from 15 countries around the world. The Seminar was sponsored by the generosity of the Oscar M. Ruebhausen Fund at Yale Law School and in cooperation with the International Society for Military Law and the Law of War and the National Institute of Military Justice. This was a very important opportunity for military lawyers from around the world to exchange information and discuss the systems they operate under. [Access here].
Yale Law School has a dedicated web page for the Seminar and Eugene's informative blog is to be found [here] - this is essential reading for all who are serious about military justice reform.   back to the top

ECtHR decisions on trade unions in French armed forces
The European Court of Human Rights handed down decisions in two cases concerning trade unions in the French Armed Forces:  Matelly v. France, App. No. 10609/10, and ADEFDROMIL v. France, App. No. 32191/09. The court found a violation of the right to freedom of association under Article 11 of the European Convention on Human Rights in France's order that M. Jean-Hugues Matelly, a member of the gendarmerie, resign from the "Forum for Gendarmes and Citizens." According to the summary, the "blanket ban on forming or joining a trade union encroached on the very essence of freedom of association, could not be considered proportionate and had not therefore been 'necessary in a democratic society.'" The applicant in the second case was the Association for the Protection of the Rights of Military Personnel, which was established by two military officers. The court held there as well that the blanket ban violated Article 11. The decisions are available on the court's website in French. Organizing or joining a union in the US armed forces is a federal crime, as noted here. The big question is what ramifications does this have for UK armed forces, where the chain of command in each Service have resisted any form of federation for their Servicemen and women, in spite of the Council of Europe Recommendation 1572 (2002) 11. [With thanks to Gene Fidell and his excellent blog, Global Military Justice Reform]. NB, these cases are now on the Aspals database. There is an unofficial translation of the Matelly decision available to subscribers.   back to the top

Government responses to Committee's Tenth Report of Session 2013- 14 Remote Control: Remotely Piloted Air Systems - current and future UK use; Intervention: Why, When and How?: Government Response to the Committee's Fourteenth Report of Session 2013- 14
In its response to the Drone report, the government stated that the "UK fully complies with its obligations under international law. All of our attack systems, including RPAS, operate with clear legal authority, such as UN Security Council Resolutions and UK forces operate in accordance with International Humanitarian Law, following the principles of humanity, proportionality, military necessity and distinction." Reaper and Watchkeeper are both in the core programme and, on current plans, the former will be replaced from 2018 onwards through the SCAVENGER programme.
It its response to the report on intervention, the government continues to insist that there is a right of 'humanitarian intervention' even without a UN Security Council mandate, which contradicts what it says about operating with a clear legal authority "such as UN Security Council Resolutions". This is simply wrong and we are perhaps the only country that believes this right exists under international law. The "might is right" argument has no place in an international society which is governed by the rule of law.   [Access Here]   back to the top

UK Armed Forces Personnel and the Legal Framework for Future Operations - Annex: Government response
The response in general terms accepts the findings of the Committee and sets out how the government intends to respond. One such example is an intention to appeal the recent judgment in Serdar Mohammed. There is the prospect of legislation to deal with the issue of combat immunity (to exempt liability when eg we kill or injure our own servicemen during combat) - but Aspals consider the meaning of "combat" needs to be strictly defined so as not to excuse incompetence in those responsible for equipping and training service personnel. While the response claims "The Government has been actively involved in a range of initiatives aimed at strengthening international humanitarian law", there is no indication of how the real problem of prisoner handling can be resolved, while the courts - both domestic and the ECtHR - continue to find ECHR obligations overriding IHL. This is an international problem and needs to be addressed eg at UN level, as courts tend to find ways to bypass article 103 of the Charter.
In its final response, concerning the exploitation of the media by UK's adversaries, the Government said, the "MOD's primary focus is to prevent any such incidents. But recent developments in the Al-Sweady public inquiry have demonstrated again the very real problem of false accusations, which in this case were highlighted in MOD's submissions to the Inquiry. MOD will continue to resist false accusations, whether in inquiries or in other legal proceedings such as personal injury claims. The Department will continue to seek to make clear to the media and the public both the severe view it takes of violations and its determination to protect staff against false accusations."   [Access Here]   back to the top

Afghanistan - Camp Bastion Attack: Government Response to the Committee's Thirteenth Report of Session 2013-14
Government responses to the "The burning man incident", Security incidents recorded in Helmand Province; Camp Bastion guard towers; Perimeter Security; and Force Protection projects and expenditure. Lessons have been identified and captured following numerous UK, US and ISAF reviews in the year following the attack on Camp Bastion. As a result of these extensive efforts, there have been further significant enhancements to force protection at the complex: additional personnel have been deployed, command and control arrangements improved and base surveillance measures enhanced.   [Access Here]   back to the top

Afghanistan - House of Commons Defence Committee Fifteenth Report of Session 2013- 14
Following a campaign that was so protracted and costly in both casualties and expenditure of resources, it is important for the public to understand what has been achieved in our engagement in Afghanistan. The COmmittee asked the Secretary of State for Defence what plans the MoD had for a comprehensive review of our involvement in Afghanistan. He replied:
Once the campaign is over, it will clearly be appropriate to look at a strategic level across the campaign as a whole to see what lessons need to be learned in addition to those thrown up by the short-term and medium-term processes. I would expect that we would do that, but the time to do it will be when the campaign is completed.
He explained that the terms of reference for a future review of the campaign had not yet been scoped and he invited the Committee to make recommendations about what a post-campaign review should cover. The Committee consider that it would be appropriate for an independent national lessons study into Afghanistan to be commissioned by the Government. It should receive input from all departments of state concerned, and take evidence from all those engaged and affected by the campaign. The Committee recommends that the study should include a balanced review of the successes and setbacks of the campaign, identifying lessons from the tactical to the strategic, clearly distinguishing the pre-2006 section of the campaign from activities in Helmand from 2006 onward.   [Access Here]   back to the top

Independence of judges and lawyers - Report of the UN Special Rapporteur
The report focuses on the compliance of military tribunals with human rights law and internationally recognised standards. The Special Rapporteur on the independence of judges and lawyers addresses these concerns and proposes a number of solutions that are premised on the view that the jurisdiction of military tribunals should be restricted to offences of a military nature committed by military personnel. States that establish military justice systems should aim to guarantee the independence and impartiality of military tribunals, as well as the exercise and enjoyment of a number of human rights, including the right to a fair trial and the right to an effective remedy. The present report is based on an analysis of international and regional human rights instruments, the jurisprudence of international and regional human rights mechanisms and responses received to a questionnaire on military justice. Does this have implications on the Summary Justice system in the British armed forces?   [Access Here]   back to the top

Veterans' Transition Review
The Veterans' Transition Review was conducted by Lord Ashcroft KCMG PC. The Review was published on 11 February 2014 examining the transition of Armed Forces personnel from their military careers to civilian life at the end of their service.   [Access Here]   back to the top

Defence Committee - Seventh Report - Towards the next Defence and Security Review: Part One
A highly critical report in which the Committee asks, 'Was the 2010 Strategic and Security Review strategic?' and points out that the 2010 Strategic Defence and Security Review and the 2010 National Security Strategy were governed by the overriding strategic objective of reducing the UK's budget deficit. They found it difficult to divine any other genuinely strategic vision in either document. This is the first of a series of reports that the Committee intends to publish to assist in the preparation of the next Defence and Security Review, to both inform and shape the next Review and the next National Security Strategy and help to drive a more strategic approach to security across Government.   [Access Here]   back to the top

Change at the Top - Director Service Prosecutions
Aspals understands that the first Director Service Prosecutions, Bruce Houlder QC, has retired and is succeeded by Andrew Cayley QC. After a long and distinguished career at the Bar, the SPA presented a new challenge for Bruce, as he had no prior service background. He headed the SPA at a time of intense media coverage involving criminal allegations against our servicemen on military operations in Iraq and Afghanistan. More recently, the SPA successfully prosecuted the cases of Sgt Nightingale (firearms offences) and Blackman (murder of a prisoner of war). Aspals wish him well in his next career move. Andrew Cayley is a former Army Legal Services officer, who retired in the field rank of Major and who, after a period of loan service with the ICTY, went on to take on a full-time post there and prosecute war crimes and crimes against humanity arising from the breakup of the former Yugoslavia in 1991. He was on the prosecution team prosecuting those accused of genocide in Srebrenica where over of 9000 men and boys were murdered. He led the investigation against Colonel General Ratko Mladic - now on trial in The Hague - and the first prosecution of members of the Kosovo Liberation Army for war crimes and crimes against humanity committed in 1998 in Kosovo. In 2005 he moved on to prosecute at the ICC in the Hague and, latterly, in 2009 became the International Co-Prosecutor of the Khmer Rouge Tribunal in Cambodia. Aspals wish Andrew every success in this new post.   back to the top

Goodbye to George III - The fight over prosecuting sexual assault in the military is really over an antiquated model of commander control.
An excellent article by Eugene R. Fidell, of Yale Law School, who examines the competing proposals of two Democract Senators, Sen. Kirsten Gillibrand, and Sen. Claire McCaskill. At first glance, the proposals may look like alternate routes to the same goal, but there is a profound difference between them. Gillibrand's bill would transfer the commander's power to decide who will be court-martialed for serious offences to lawyers outside the chain of command (except for core military offences, like desertion and disobedience). McCaskill's bill would largely keep commanders in the driver's seat, but with an added layer of review for sex offences. Read [here]
The bill has been compromised to strengthen protections for military victims of sexual assault, although it stops well short of the more far-reaching changes advocated by many victims and Senator Kirsten E. Gillibrand, Democrat of New York, who sought to remove military commanders from overseeing the cases and brought considerable attention to the issue this year. "... real reform in the structure of military justice has been put off." (Eugene Fidell) [More...]   back to the top

Guidance On Sentencing In The Court Martial, Version 4
The latest version in this excellent guide for practitioners. Released on 11 October 2013    [Access Here], (64 pages).   back to the top

Twice Betrayed - Bringing Justice to the US Military's Sexual Assault Problem
A report which examines the need for reform of the US military justice system in the context of sexual assault allegations, to remove the power to deal with them from the chain of command. It looks at the difficulties in victims reporting to the chain of command rape/sexual assault and the perception, at least of harm which may be done to the complainant's career. The authors identify the two systems run by US allies: where prosecutions are handled by the civilian system and, as in the case of Canada and the UK, where they are handled by an independent military prosecutor. They point out that in both cases, no proven damage to readiness or unit cohesion of these militaries has declined because commanders are not handling criminal cases. Under the US status of forces agreement with Japan and South Korea, these countries can and do prosecute US service personnel who commit crimes off base.    [Read the Report ], (45 pages).   back to the top

The Export Control (Syria Sanctions) Order 2013
Order makes provision for certain trade restrictions against Syria and certain Syrian persons. The prohibitions apply to any person in the United Kingdom and United Kingdom persons, as defined in section 11 of the Export Control Act 2002(c. 28), wherever they are in the world. The measures include prohibitions on the export, transfer or the provision of brokering services to Syria or to Syrian persons in relation to equipment or technology which might be used for internal repression as listed in Schedule 2 to the Order. In addition, this Order makes provision for the enforcement of certain new trade sanctions against Syria specified in Council Regulation (EU) No 867/2012 (OJ No L 257, 25.9.2012, p1), Council Regulation (EU) No 325/2013 (OJ No L 102, 11.4.2013, p 1) and Council Regulation (EU) No 697/2013 (OJ No L 198, 23.7.2013, p 28) all of which amend Council Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria ("the Amended Syria Regulation").    [SI 2013 No. 2012 ]   back to the top

Defence Reform Bill
The Bill is intended to improve procurement and support of defence equipment and to strengthen the reserve forces. The Bill contains four Parts and seven Schedules. Part 1 relates to the reform of the Defence Equipment and Support (DE&S) organisation. Part 2 creates a regulatory framework for "single source contracts" (that is, contracts which are not subject to a legal obligation to be advertised and competed) in the defence area, a new Non-Departmental Public Body (NDPB), called the Single Source Regulations Office (SSRO), to oversee that regulatory framework, and a civil compliance regime to ensure compliance with key aspects of the regulatory framework. Part 3 makes changes to reserve forces by extending the powers to "call out" members of the reserve forces.    [Draft Bill and Explanatory Notes]   back to the top

The work of the Service Complaints Commissioner for the Armed Forces: Government's and Commissioner's Responses to the Committee's Eighth Report of Session 2012-13 - Fourth Special Report 2013-14
The Defence Committee published its Eighth Report of Session 2012-13 on The work of the Service Complaints Commissioner for the Armed Forces on 26 February 2013. The responses from the Government and the Service Complaints Commissioner for the Armed Forces were received on 14 June 2013 and 3 May 2013 respectively and are published as Appendices 1 and 2 to this Report.   [Report, 25 June 2013]   back to the top

Text of White House Statement on Chemical Weapons in Syria
At the following link is the statement issued by the White House in the name of Benjamin J. Rhodes, deputy national security adviser suggesting the Assad regime has used chemical weapons, including the nerve agent sarin, on a small scale against the opposition multiple times in the last year. There is a serious omission, however, of any reference to chemical weapons use by rebel forces and a failure to address the report by the Independent UN Commission of Inquiry on Syria which was to that effect.    [New York Times, 13 June 2013]   back to the top

Germany's Ratification of the Crime of Aggression Amendment: A Significant Step
June 3, 2013, Germany deposited its instrument of ratification of the Kampala Amendment on the crime of aggression. The ratification is the 6th to date, and one step closer to the thirty ratifications needed to activate the International Criminal Court's crime of aggression. [Opinio Juris, 4 June 2013]      back to the top

High Court directs major overhaul of Iraq death and mistreatment allegations investigation
Remember the Iraq War? Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda - our coverage here), the state's duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing. In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty. [UK Human Rights Blog, 24 May 2013]      [Read the judgment]   back to the top

Army law: uniform instructions
Some press reports estimate that up to one in four of the army's lawyers face being cut. And the overall picture for the army is one of drastically reduced headcount - the Ministry of Defence's Future Force 2020 plans will see the army cut 20,000 regular soldiers by 2020, with the number of regular soldiers set to fall to 82,000. Last year, during the second completed phase of cuts, four Army Legal Services lieutenant colonels applied for voluntary redundancy. [Read Here]   back to the top

New UK Chief of the Defence Staff appointed
Congratulations to General Sir Nicholas Houghton will succeed General Sir David Richards as the UK's next Chief of the Defence Staff in July 2013. A hearty "thank you" to General Sir David for his custodianship of the Services through a very difficult time. [Read Here]   back to the top

David Cameron sacks adviser in row over Armed Forces pay
The head of the independent body responsible for military pay, Professor Alasdair Smith, (and also a member of the Review Body on Senior Salaries), has been sacked by David Cameron after calling for servicemen to be given a rise to compensate for Coalition defence cuts. [Read the Report]   back to the top

Defence Committee - Eighth Report: The work of the Service Complaints Commissioner for the Armed Forces
The Committee found that the Service complaints system is too complex, time-consuming and needs to be simplified. The MoD should reconsider the Commissioner's proposal that one level of appeal in the system should be removed. It also recommends the appointment of an Ombudsman. [Access the Report]   back to the top

Armed Forces (Prevention of Discrimination) Bill
A Bill to provide that certain offences committed towards members of the armed forces shall be treated as aggravated; and for connected purposes. The Bill was withdrawn on 1 February 2013 and will not progress any further. It was argued that the Armed Forces Covenant Report, under the Armed Forces Act 2011, section 2, was sufficient to address concerns. [Text of Bill]   back to the top

UN Security Council Resolution 2085 (2012) - Mali
Chapter VII mandate authorizes the deployment of an African-led International Support Mission in Mali (AFISMA) for an initial period of one year, which shall take all necessary measures, in compliance with applicable international humanitarian law and human rights law and in full respect of the sovereignty, territorial integrity and unity of Mali. [Available Here]   back to the top

DLA Piper Report of the Review of Allegations of Sexual and other forms of abuse in Defence
On 26 November 2012, the Minister for Defence Stephen Smith announced the Government's response to the Review into Allegations of Sexual and other forms of Abuse in Defence. The response included:
  • A general apology to members of the Australian Defence Force or Defence employees who have suffered sexual or other forms of abuse in the course of their employment
  • The establishment of an independent Taskforce to assess the individual complaints and any wider systemic issues to be headed by the Hon Len Roberts-Smith QC
  • access to a capped compensation scheme; and
  • a free telephone hotline (already established) so that complainants can from today access information about the Government's response (1800 424 991).
The redacted version of Final Report of Phase 1 of the Review conducted by law firm DLA Piper was released by the Minister on 10 July 2012 (redacted for public release) DLA Piper was engaged by Defence to methodically review allegations at arm's length from Defence and to make recommendations for further action. The review was in two phases. Visit the background page if you would like to learn more about the background of this review. [Access Here]   back to the top

The Gotovina Verdict Does Not Wipe the Slate Clean
A previous judgement to indict two Croatian generals of war crimes during 1995 has been overturned on appeal. While their conduct is deemed within the reasonable demands of a military offensive, Serbian prejudices against the War Crimes Tribunal process will be reinforced. [Access Here]   back to the top

Circuit Judge Appointment - Watson QC
The Queen has appointed Francis Paul Watson QC to be a Circuit Judge on the advice of the Lord Chancellor, the Right Honourable Kenneth Clarke QC MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned him to the North Eastern Circuit, based at Sheffield Combined Court Centre with effect from Tuesday 23 October 2012. Francis Paul Watson QC, 59, will be known as His Honour Judge Paul Watson QC. He was called to the Bar (G) in 1978 and took Silk in 2002. He was appointed as an Assistant Recorder in 1998 and as a Recorder in 2000. He previously served in the Army Legal Services as a legal officer, retiring in the rank of major. Aspals congratulates His Honour Judge Watson QC and wishes him every good fortune in his appointment.   back to the top

BIRW - Report on the Baha Mousa Public Inquiry
"In this report BIRW has highlighted the link between Belfast 1971 and Basra 2003, based on more than 20 years documenting the tactics used by the British Army in Northern Ireland. The similarities sadly speak for themselves. Some comfort can be taken from the fact that the Baha Mousa Inquiry was able to establish the truth, prompting a statement of condemnation from David Cameron and a formal apology from the Ministry of Defence. As the report notes, we now have an inquiry model that can be replicated in order to help ensure that future inquiries are fair and effective." Baroness Helena Kennedy, QC.   [Note that, in §6.4 of the report, it is said: "BIRW have no difficulty at all, in the light of all the evidence, in concluding that not only was Baha Mousa tortured, he was murdered." Murder requires the prosecution to prove an intention either (a) to kill or (b) to do grievous ie really serious, bodily harm. The report does not point to the evidence which it says supports its view].    [Access Here]   back to the top

Forms of Address in the Court Martial
In a direction of 31 August 2012, the Judge Advocate General, His Honour Judge Jeff Blackett, has directed that "from 1st September 2012 Judge Advocates shall be addressed in court as 'Your Honour' and referred to as His or Her Honour. I have agreed this change with the Senior Presiding Judge for England and Wales. This change will make the form of address in the Court Martial consistent with that in the Crown Court. This is especially appropriate because of the change in section 26 of the Armed Forces Act 2011 enabling all Judge Advocates to sit in the civilian system." See also At Trial   back to the top

Rules of Procedure and Evidence adopted for the Mechanism for International Criminal Tribunals
The Judges of the Mechanism for International Criminal Tribunals (MICT) recently adopted the Rules of Procedure and Evidence, to guide the work of the institution mandated with carrying out a number of essential functions of the ICTY and the ICTR after the completion of their respective mandates. Adopted on 8 June 2012, the Rules of Procedure and Evidence will govern the Mechanism's trial and appellate proceedings as well as sentencing and early release practices. [MICT Rules of Procedure and Evidence]   back to the top

Case Note: A Critical Review of the ICC's Recent Practice Concerning Admissibility Challenges and Complementarity - draft version of a case note forthcoming with Melbourne Journal of International Law, vol. 13, no. 1, 2012
The principle of complementarity has often been pointed to as the cornerstone of the Rome Statute (the Statute); as a key concept which permeates the entire structure and functioning of the International Criminal Court (ICC or the Court). Although the legal literature has been preoccupied with discussing the nature and scope of complementarity the Statute, until recently however the jurisprudence of the ICC has only to a limited extent dealt with a number of key issues pertaining to complementarity. However, the Court's recent practice – a series of decisions, including the Appeals Chamber's decisions of 30 August 2011, relating to an admissibility challenge filed by the Government of Kenya – offers a significant contribution to the understanding of complementarity. These decisions have not yet been comprehensively assessed in the literature on the ICC and complementarity. Examining the Court's most recent practice against the backdrop of existing case law and the literature on the topic, this Case Note identifies four key contributions of the ICC decisions. [Melbourne Journal of International Law, vol. 13, no. 1, 2012]   back to the top

Short War, Long Shadow - The Political and Military Legacies of the 2011 Libya Campaign
The impetus for the UK to intervene came very much from the top, with a hawkish prime minister pushing the operation despite private military warnings of the risks. At home and abroad, a debate quickly flared up over the generous interpretation of 'all necessary means' to 'protect Libyan civilians' in UN Security Council Resolution 1973. Whatever the initial intention of the Permanent Five, there is little doubt that the operation mutated into a proxy war with regime change as the object. Jonathan Eyal concludes that this may lead to some troubling implications for the fledgling concept of the Responsibility to Protect (R2P) – not least, China and Russia feeling that they were hoodwinked into permitting an operation they did not intend. They may not be so trusting in the future. [RUSI Report], 19 March 2012   back to the top

Armed Forces Redundancies - Commons Library Standard Note
This note sets out the information that has been publicly released regarding the Armed Forces Redundancy Programme. The Government announced plans to cut 17,000 from the armed forces by 2015 in the Strategic Defence and Security Review in October 2010. A further reduction in the size of the Army was announced in July 2011. [Standard notes SN05951], 29 February 2012   back to the top

Defence Committee - Tenth Special Report
here]    Do you have an opinion on the Government's response? Please let us [know].   back to the top

Defence Committee - Ninth Report, Operations in Libya Terrorism
Defence Committee report resulting from its inquiry into operations in Libya. Although their inquiry focused mainly on operational aspects of the mission, they were also keen to examine wider issues arising from the mission such as how the capability decisions in the SDSR and subsequent announcements had affected the UK contribution to operations in Libya. Their Report covers the development and adoption of the relevant UN Security Council Resolutions and NATO's operational implementation of the Resolutions, including command and control structures and decisions, and the potential impact on the future of the Alliance, particularly the involvement of non-member nations. They then discuss the UK's involvement in, and the lessons learned from, the mission. [Report]  [Evidence]   back to the top

Foreign Affairs Committee
Over the last four years, Somali piracy has grown into a major problem for the international community, representing a threat to vital trading routes and to national and international security. As a state whose strengths and vulnerabilities are distinctly maritime, the UK should play a leading role in the international response to piracy. Despite nine UN Security Council resolutions and three multinational naval operations, the counter-piracy policy has had limited impact. The number of attempted attacks, the cost to the industry and the cost of the ransoms have all increased significantly since 2007. ...............................[Tenth Report Piracy off the coast of Somalia]   back to the top

Armed Forces and Reserve Forces (Compensation Scheme) (Amendment) Order 2011
Comes into force on 17th November 2011 and amends the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 ("the principal Order") which provides for benefits to be payable to or in respect of a person by reason of injury or illness (whether physical or mental), or death, which is caused (wholly or partly) by service in the armed forces or reserve forces. ...............................[SI 2011 No. 2552]   back to the top

General Wesley Clark on 9/11 and Libya, Libya was already planned, Iran next..
General Clarke speaks of his amazement at some aspects of US foreign policy and the shopping list of states where military intervention was planned, seemingly motivated by the presence of oil. In his view, without oil, the middle east would be as interesting to the US as Africa. Watch for yourself. ...............................[YouTube]
Watch also:  [Putin: Who gave NATO right to kill Gaddafi? ]   back to the top

The real scandal is not hacking but Helmand
The 75-page report by the Parliamentary Defence Committee, the details of which we reveal today, is a precise and shocking expose of how British troops on duty in Helmand, Afghanistan, from 2006 onwards were routinely failed by their senior officers and government ministers. As scandals go, it is among the very worst. ...............................[Telegraph, 17 July]
[Access the report]   back to the top

Amnesty questions claim that Gaddafi ordered rape as weapon of war
Human rights organisations have cast doubt on claims of mass rape and other abuses perpetrated by forces loyal to Colonel Muammar Gaddafi, which have been widely used to justify Nato's war in Libya. Nato leaders, opposition groups and the media have produced a stream of stories since the start of the insurrection on 15 February, claiming the Gaddafi regime has ordered mass rapes, used foreign mercenaries and employed helicopters against civilian protesters. An investigation by Amnesty International has failed to find evidence for these human rights violations and in many cases has discredited or cast doubt on them. It also found indications that on several occasions the rebels in Benghazi appeared to have knowingly made false claims or manufactured evidence. [Independent, 24 June 2011]   back to the top

The Armed Forces (Terms of Service) (Amendment) Regulations 2011
Regulations to amend the Terms of Service Regulations for the Royal Navy, Royal Marines, the regular army and the Royal Air Force principally concerning transfer to the Reserve. Importantly, Regulations 5, 8, 9 and 11 insert new regulations into the Terms of Service Regulations for each Service. The new regulations enable a person, under the age of 18 years, to leave the Armed Forces as of right. [Access on-line]   back to the top

Application no. 66387/10 by J. L. against the United Kingdom
An important case pending in the European Court of Human Rights. The applicant, a diasbled wife of a serviceman dismissed the Service, complains under Article 8 of the Convention that the possession proceedings brought against her violated her right to respect for her home (a service married quarter). The applicant further complains that in view of her "different situation" the decision to grant the Ministry of Defence the right to evict her before alternative accommodation was available violated her rights under Article 14 read together with Article 8 of the Convention. The question posed to the parties is: Was the interference with the applicant's respect for her home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?  See:  Application no. 66387/10   back to the top

Libya: Col Gaddafi's letter to Barack Obama in full
The following is the text of a letter sent to President Barack Obama on Wednesday by Libyan leader Moammar Gadhafi. The misspellings and grammatical errors are in the original letter. [Telegraph, 6 April 2011]  back to the top

British Casualties - Afghanistan, Edition - 07 Oct 01 - 15 Mar 11
This publication, produced by Defence Analytical Services and Advice (DASA), Ministry of Defence, was released on the 1st April 2011 according to the arrangements approved by the UK Statistics Authority. The Ministry of Defence has published the following casualty figures for Operation HERRICK. These figures are updated every two weeks, two weeks in arrears.   [Afghanistan]  back to the top

Suicide and Open Verdict Deaths in the UK Regular Armed Forces
The latest National Statistic on suicides and open verdict deaths among the UK Armed Forces, produced by Defence Analytical Services and Advice (DASA), Ministry of Defence, was released on 31 March 2011 according to the arrangements approved by the UK Statistics Authority. It includes both coroner-confirmed suicides and open verdict deaths in line with the definition used by the Office for National Statistics (ONS) in the publication of National Statistics. In accordance with ONS practice, throughout this notice, the term 'suicide' should be understood to include all suicide and open verdict deaths. There is a link to download the complete report.   [Suicide and Open Verdict Deaths]  back to the top

Libya: Coalition bombing may be in breach of UN resolution's legal limits
Legal expert warns that forces led by Britain, France and the US face 'a moment of danger' in justifying latest strikes. [Guardian, 28 March 2011]
See also:  [Targeting Gaddafi is allowed by UN resolution]  back to the top

Libya. The Observer debate: Is it right to be intervening in Libya's struggle for freedom?
Peter Preston, Abdelkader Benali and other expert voices on North Africa argue for and against military action.  [The Observer, 27 March 2011]  back to the top

UN Security Council Resolution 1973 - No-Fly Zone and Airstrikes authorised against Libya
Adopting resolution 1973 (2011) by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory , requesting them to immediately inform the Secretary-General of such measures. [Read the full text]  back to the top

Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece)
ICJ Hearing during week commencing 21 March: The Applicant contends that in accordance with Article 11, paragraph 1, of the Interim Accord, Greece "has undertaken a binding obligation under international law" and that this provision lays down that Greece shall "not . . . object to the application by or the membership of [the former Yugoslav Republic of Macedonia] in international, multilateral and regional organizations and institutions of which [Greece] is a member"; the text provides however that Greece "reserves the right to object to any membership referred to above if and to the extent [the former Yugoslav Republic of Macedonia] is to be referred to in such organization or institution differently than in paragraph 2 of the United Nations Security Council resolution 817 (1993)", i.e., as "the former Yugoslav Republic of Macedonia".  back to the top

The Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions (Amendment) Order 2011
This Order amends the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 ("the principal Order") which makes provision for pensions and other awards in respect of disablement or death due to service before 6th April 2005 in the naval, military and air forces. Articles 2 and 3 substitute Tables in Schedules 1 and 2 to the principal Order thereby varying the rates of retired pay, pensions, gratuities and allowances in respect of disablement or death due to service in the armed forces. [Access Here]  back to the top

First Joint Russian-US report on Cyber Conflict
The EastWest Institute released the first joint Russian-American report aimed at defining the "rules of the road" for cyber conflict. Prepared by a team of Russian and US experts convened by EWI, Working Towards Rules for Governing Cyber Conflict: Rendering the Geneva and Hague Conventions in Cyberspace explores how to extend the humanitarian principles that govern war to cyberspace.     [Access here, 3 Feb 2011]   back to the top

US: House votes to repeal ban on gays in military
The US House of Representatives has voted to repeal a ban on openly gay men and women serving in the US military. [16 December 2010]  back to the top

Diving belles! Wrens set to serve on Navy submarines... and they'll get their own bunks to avoid 'hot-bedding' with the men
It is one of the last great all- Below: Hot-bedding male bastions in Britain's Armed Forces with a proud tradition stretching back more than 100 years. [Mail, 4 December]  back to the top

UK infantry ban on women soldiers remains, MoD rules
Women are to remain barred from close-combat roles in the UK armed forces. [29 November 2010]  back to the top

War crimes charges against military interrogators would put MoD on trial
Human rights lawyer in high court action that aims to force an inquiry into 'systematic abuse' of detainees in Iraq. The revelation that a number of members of a secretive British military intelligence unit could face war crimes charges threatens to put the Ministry of Defence's entire interrogation regime on trial.    [9 November 2010]  back to the top

Military Investigations 'Fail Rape Victims'
A Channel 4 News investigation has discovered that the conviction rate for rape investigations in the military justice system is less than half that of the civilian system. [17 October 2010]  back to the top

Military justice system reforms 02 Nov 10
As new investigations start into allegations of abuse by British soldiers in Iraq does the system need to reform? Joshua Rozenberg looks at the issue of military justice. [Podcast 2, November - Link removed by BBC]  back to the top

Coroners and Justice Act 2009
In force from 4 October 2010, Sections 52-55 of this Act abolish the defence of provocation in murder, replacing it with a partial defence known as "loss of control". The defence of Diminished responsibility is also significantly amended.  back to the top

Report of the Committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards
This report is submitted to the Human Rights Council pursuant to its resolution 13/9. The Committee concluded that the dual role of the Military Advocate General (MAG) to provide legal advice to IDF with respect to the planning and execution of "Operation Cast Lead" and to conduct all prosecutions of alleged misconduct by Israeli Defence Force soldiers during the operations in Gaza raises a conflict of interest. This bears on whether the MAG can be truly impartial ­ and, equally important, be seen to be truly impartial ­ in investigating these serious allegations. Human Rights Council: Report, 21 September 2010 .   back to the top

Human Rights Joint Committee - First Report
Serious, sustained allegations that the UK has received information from countries which routinely use torture, or has been more actively complicit in torture carried out by others, puts the UK's international reputation as an upholder of human rights and the rule of law on the line. Government Response to the Committee's Second Report of Session 2009-10, 15 September 2010 .   back to the top

Defence Committee - First Report
The Strategic Defence and Security Review. The Defence Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Ministry of Defence and its associated public bodies. In view of the speed with which the SDSR is being conducted, the Committee was compelled to report to the House as soon as possible. This Report sets out, albeit only in summary, its understanding of the process and the anxieties about that process, and about the relationship between the SDSR and the CSR. [Report, 7 September 2010]  back to the top

Defence Committee - First Special Report
The Comprehensive Approach: the point of war is not just to win but to make a better peace: Government response to the Committee's Seventh Report of Session 2009-10. [added on 3 September 2010]  back to the top

Implementation of section 144 and Schedule 17 of the Coroners and Justice Act 2009 - Circular 2010/12
The purpose of this circular is to inform criminal justice professionals and any other interested parties that the Coroners and Justice Act 2009 (Commencement No.5) Order 2010 (SI 2010 No.1858 (C.94)) brings section 144 and Schedule 17 (Treatment of convictions in other member States etc) of the Coroners and Justice Act 2009 into force in England and Wales on 15 August 2010. An EU conviction will be taken into account if the offence would also have been an offence in the UK if it had been done here at the time of the trial of the defendant for the current offence. Paragraph 11 of Schedule 17, amends section 263 of the Armed Forces Act 2006, (Explanatory Notes paragraph 646), concerning restriction on imposing a custodial sentence or service detention on an unrepresented offender. Explanatory Notes are available on-line. [2 August 2010]  back to the top

Al- Sweady Public Inquiry
In a written statement given on Wednesday 25 November 2009, the Secretary of State for Defence announced that there would be a public inquiry in to the allegations that Iraqi nationals were detained after a firefight with British soldiers in Iraq in 2004 and unlawfully killed at a British camp, and that others had been mistreated at that camp and later at a detention facility. The Inquiry is established under the Inquiries Act 2005 and is chaired by the Sir Thayne Forbes, a retired High Court judge.    [Visit the web site]   back to the top

Kosovo Advisory Opinion: Unilateral declaration of independence in respect of Kosovo
The ICJ was asked by the General Assembly to assess the accordance of Kosovo's declaration of independence of 17 February 2008 with "international law" (resolution 63/3 of the General Assembly, 8 October 2008). Several participants have invoked resolutions of the Security Council condemning particular declarations of independence: see, inter alia, Security Council resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541 (1983), concerning northern Cyprus; and Security Council resolution 787 (1992), concerning the Republika Srpska. the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens). In the context of Kosovo, the Security Council has never taken this position. The exceptional character of the resolutions enumerated above appeared to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council. Held: By 10 votes to 4, the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.    [Kosovo Advisory Opinion of the ICJ, 22 January 2010]   back to the top

Submissions to the Baha Musa Inquiry, on behalf of the detainees
A former Army commanding officer has been accused of lying to a public inquiry into the death of an Iraqi civilian in his soldiers' custody. Colonel Jorge Mendonca said he saw nothing out of the ordinary when he checked on hotel worker Baha Mousa and his colleagues after their 2003 arrest. But Rabinder Singh QC, counsel for Mr Mousa's family, questioned his account of events in Basra, southern Iraq. He told the inquiry he must have not visited or had seen a "horrific scene". (19 July 2010).[Link to Baha Musa Inquiry Closing Address - Rabiner Singh QC removed by Government]
[BBC News, 19 July 2010]
See also:  [Colonel accused of lying to inquiry]  back to the top

Armed Forces (Leave) Bill 2010-11
A Bill to provide that leave for members of the armed forces serving overseas should be calculated from the time an individual arrives back in the United Kingdom; and for connected purposes. [Latest news on the Bill] (added 7 July 2010).  back to the top

Iraq inquiry publishes legal advice to Blair on war
The Iraq inquiry has released details of the legal advice given to Tony Blair prior to the invasion of Iraq after the documents were de-classified. Copies of the draft legal advice given by former attorney general Lord Goldsmith was previously kept secret despite calls for it to be published. [Download here] (added 1 July 2010).
See also the advice of 7th March 2003. (added 18 May 2011)  back to the top

Ministry of Defence: Treating injury and illness arising on military operations
Committee of Public Accounts report, together with formal minutes, oral and written evidence. The main challenge the Department faces, should casualties increase significantly, is to ensure that all military patients will receive the same standard of care they currently experience at Selly Oak and Headley Court. The Department does not have sufficiently detailed and robust contingency plans should Selly Oak become full. Injured military personnel should be treated in a military environment which is suitable for their needs. Read the report, [Twenty-seventh Report of Session 2009-10]   back to the top

Senate report slams Blackwater unit
An investigation into a unit of security contractor Xe, formerly known as Blackwater, shows the company didn't properly vet the people it hired for a training contract in Afghanistan, employees recklessly used firearms they weren't authorized to have and the Army didn't provide sufficient oversight of those contractors when mistakes were reported, according to a statement released Tuesday by Senate Armed Services Committee Chairman Carl Levin, D-Mich. [Army Times, Wednesday Feb 24, Army Times, Wednesday Feb 24, 2010]  back to the top

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)
The International Court of Justice (ICJ), principal judicial organ of the United Nations, has directed the submission of a Reply by the Republic of Croatia and a Rejoinder by the Republic of Serbia in respect of the claims presented by the Parties in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). Press Release No. 2010/3, 18 February 2010  back to the top

Did the Foreign Office legal adviser mis-state the law?
A number of remarkable facts leap out from the testimony at the Chilcot inquiry of the former Foreign Office legal adviser, Sir Michael Wood. The least interesting of these is that the Attorney General, Lord Goldsmith, changed his mind about the legality of the war without a second UN resolution, a fact which was long suspected. This is widely supposed to mean that he was leaned on to mis-state the case for war. On the contrary " it is clear that the 'illegal war' Goldsmith mark one was wrong, while the 'legal war' Goldsmith mark two was correct. This article is from the [Specatator Link removed by publisher]. back to the top

Adaptability and Partnership: Issues for the Strategic Defence Review (Command Paper Cm 7794)
This Green Paper does not attempt to answer the fundamental question of the role we want the United Kingdom to play in the world and how much the nation is prepared to pay for security and defence. Rather it opens discussion and sets out our emerging thinking on this and other key issues for Defence. Where possible it seeks to begin to build consensus; and in writing the Paper, consultation took place with academics, opposition parties and across government. Download the Paper hereback to the top

Rape case to force US defence firms into the open
Senate passes measure prompted by case of woman prevented from suing over alleged rape by Halliburton/KBR colleagues. US defence firms are to be barred from lucrative government contracts if they refuse to allow employees access to the courts, after a woman working for a Halliburton subsidiary in Iraq was prevented from taking legal action over an alleged gang rape by fellow workers.
See: [Guardian, 15 October 2009back to the top

Australian Courts-Martial ruled unconstitutional
Aspals readers might be interested in a slight crisis that has hit the Australian Court-Martial system recently. In the case of Lane, the Australian High Court declared the new Australian Military Court (AMC), the centrepiece of military justice reforms, to be unconstitutional. Lane, a former sailor, was charged with indecent assault for placing his genitals on a sleeping colleague's forehead - a practice known as "teabagging" - after a drunken night out in 2005. He denied the charge and fought it all the way to the High Court.
Background:  Due to concerns that the Australian military justice system was not striking the right balance between the requirements of the armed forces on the one hand, and the rights of its personnel on the other, it was reformed in 2006. However, in doing so, the Australian government rejected the recommendation of the Senate Foreign Affairs, Defence and Trade References Committee to create the military court under Chapter III. The AMC was created in 2006 by the inclusion of section 114 in Division 3 of Part VII of the Defence Force Discipline Act 1984 (Cth) (the Act). Section 114 states:
"(1) A court, to be known as the Australian Military Court, is created by this Act.
Note 1: The AMC is not a court for the purpose of Ch III of the Constitution.
(1A) The AMC is a court of record."

The effect of section 114 was to discard the court-martial process and to create in its place the AMC which would have the jurisdiction to determine military justice issues. The problem was, however, that the judicial power identified in Chapter III of the Constitution is that of the Commonwealth and the powers to create federal courts are found in sections 71, 72 and 122. It was for that reason, in a unanimous verdict, the High Court held that the provisions of Division 3 of Part VII of the Act were constitutionally invalid. French CJ and Gummow J held that the AMC was intended to be a Court under Chapter III but was not created under Chapter III, and section 51(vi) does not allow for military jurisdiction under a "legislative" court. The Court rejected the Commonwealth's submission that the AMC, as a replacement for the court-martial system, was merely a "modernisation" of terminology and not a matter of substance.
Consequences:  Quite apart from the unusual circumstances of Australia not currently having a military tribunal, there is a clear question over the validity of the decisions made by the AMC since it was convened in October 2007. The Government has enacted legislation to reinstate the pre-2007 machinery as an interim measure while it determines the construction of a military justice system that meets the requirements of the Constitution.
Human Rights Joint Committee - Twenty-Fourth Report (Closing the Impunity Gap: UK law on genocide and related crimes)
International conventions allow and in some cases oblige the Government to give our courts criminal jurisdiction over the world's most heinous crimes, including genocide, war crimes, crimes against humanity, torture, and hostage-taking. However, the Government has chosen not to implement those conventions to the full extent possible, leaving inconsistencies and gaps in the law. These gaps effectively provide impunity to international criminals, allowing them to visit and in some cases stay in the UK without fear of prosecution... [Report printed 11 August 2009]. back to the top

Human Rights Joint Committee - Twenty-Third Report (Allegations of UK Complicity in Torture)
There have been a number of reports that UK security services have been complicit in the torture of UK nationals held in Pakistan and elsewhere. In this report the Committee examines what it means for a state to be complicit in torture. The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman. [Report printed 21 July 2009]. back to the top

Service Complaints Commissioner for the Armed Forces: the first year - Eighth Report of Session 2008⁄09
The Defence Committee has had a long-standing interest in the Service complaints system. In this inquiry the effectiveness of the current Service complaints procedures is examined based on the findings of the Service Complaints Commissioner in her first annual report. The Commissioner's evaluation of the support given to her by the Ministry of Defence during the year is also examined. [Report printed 23 June 2009]. back to the top

Defence Committee - Tenth Report: Russia: a new confrontation?
It is difficult to consider the future of NATO and the global security challenges it faces without taking account of Russia. Indeed, some commentators have suggested that there is a risk of a new Cold War emerging as a result of Russia's increasingly assertive foreign policy. It was against this backdrop that it was decided to launch an inquiry. The title Russia: a new confrontation? encapsulated the uncertain relations between the West and Russia that was at the heart of the inquiry, and the Report serves as a guide to future defence policy for the UK and NATO. ...............................[Report on-line].  back to the top

Defence Committee - Seventh Report
Concerning the examination of the Defence Support Group (DSG) established to support the Armed Forces and to deliver wider defence objectives in support of the Defence Industrial Strategy (DIS).   [Defence Committee - Seventh Report on-line]  back to the top

Army chiefs in Afghanistan cannot be sued for death of their troops
Commanding officers in Afghanistan have been offered indemnity from prosecution under human-rights laws if they make a decision that leads to the death of a soldier. The move is to address widespread concern that officers might face private prosecution if a military operation goes wrong.    [Times, 15 June, 2009 ]  back to the top

Courts rule British soldiers covered by right to life
Army chiefs can be sued over decisions taken in the heat of battle after a Court of Appeal ruling that troops must be protected by the Human Rights Act. The judgment by Sir Anthony Clarke, the Master of the Rolls, and two other judges, makes the Ministry of Defence liable to civil prosecutions by families who claim that the treatment of soldiers who have died on operations overseas might have breached their human rights.    [Times, May 19, 2009 ]
See also:&nbsp:[Telegraph, 19 May 2009back to the top

Human Rights Joint Committee - Thirteenth Report, Prisoner Transfer Treaty with Libya
The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders. [Read the Report on-line]  back to the top

Getting Away with Torture?
This 95-page report, issued on the eve of the first anniversary of the publication of the Abu Ghraib photos, presents substantial evidence warranting criminal investigations of Rumsfeld and Tenet, as well as Lt. Gen. Ricardo Sanchez, formerly the top US commander in Iraq, and Gen. Geoffrey Miller the former commander of the prison camp at Guantanamo Bay, Cuba. [Human Rights Watch]  back to the top

Committee On Armed Services United States Senate Inquiry Into The Treatment Of Detainees In US Custody
Over the course of its inquiry into the treatment of detainees in US custody, the Committee reviewed more than 200,000 pages of classified and unclassified documents, including detention and interrogation policies, memoranda, electronic communications, training manuals, and the results of previous investigations into detainee abuse. The majority of those documents were provided to the Committee by the Department of Defense. The Committee also reviewed documents provided by the Department of Justice, documents in the public domain, a small number of documents provided by individuals, and a number of published secondary sources including books and articles in popular magazines and scholarly journals. The Committee interviewed over 70 individuals in connection with its inquiry. [Removed from public access]. back to the top

The International Headquarters and Defence Organisations (Designation and Privileges) (Amendment) Order 2009 - SI No. 704
In force since 19th March 2009. This Order amends the International Headquarters and Defence Organisations (Designation and Privileges) Order 1965 ("the 1965 Order") by substituting a new Schedule to that Order. The Schedule to the 1965 Order lists those headquarters which are designated for the purposed of the International Headquarters and Defence Organisations Act 1964. Part I of the Schedule lists those headquarters which also benefit from the privileges and immunities conferred by article 3 (inviolability of archives), article 4 (legal capacity) and article 5 (immunity from legal process) of the 1965 Order. Those headquarters listed in Part II only benefit from article 3 (inviolability of archives)..... ...............................[Read on-line].  back to the top

Her Majesty's Crown Prosecution Service Inspectorate's follow-up report on The Army Prosecuting Authority - February 2009
The report details the findings of Her Majesty's Crown Prosecution Service Inspectorate (HMCPSI) arising from a follow-up inspection of the Army Prosecuting Authority (APA) in November 2008. The APA is responsible for the review and prosecution of cases referred to it for trial by court martial in respect of persons subject to military law who are accused of a criminal offence.... ...............................[Full Report]. back to the top

UN accuses Britain of condoning torture
Britain has been condemned in a highly critical United Nations report for breaching basic human rights and "trying to conceal illegal acts" in the fight against terrorism. The report is sharply critical of British co-operation in the transfer of detainees to places where they are likely to be tortured as part of the US rendition programme... ...............................[Guardian, 9 March]
[Read the Report].  back to the top

Records of Detention (Review Conclusions)
Parliamentary statement by The Secretary of State for Defence (Mr. John Hutton) Link hereback to the top

Forces Widows Pensions (Equality of Treatment) Bill 2008-09
This Bill was presented, through the ballot procedure, to Parliament on 21 January. This is known as First Reading and there was no debate on the Bill at this stage. The Bill is a Private Member's Bill and, as such, unlikely to be printed until close to a Second Reading debate. If you want information about the Bill before it is printed then you would need to speak to the Member sponsoring the Bill. This Bill will be on the Order Paper for a Second Reading debate on 19 June. It is described as a Bill to provide for the equal treatment of forces widows' pensions in respect of retirement from military service for the periods before 1973 and between 1973 and 2005; and for connected purposes. ...............................[Latest news].  back to the top

Binyam Mohamed - Commons Statement
Hansard report of the statement made by The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown) referring to the Written Ministerial Statement of the Secretary of State for Foreign and Commonwealth Affairs (David Miliband). ...............................[Lord Malloch-Brown].  back to the top

Human Rights Committee challenges ministers over torture allegations
Andrew Dismore MP, Chairman of the Joint Select Committee on Human Rights has written to the Home Secretary, the Foreign Secretary and the Attorney General on behalf of the Committee raising the Committee's serious concerns over the recent allegations of complicity of UK agents in torture overseas. ...............................[Link removed from UK Parliament].  back to the top

Forces Widows' Pensions (Equality of Treatment) Bill - Presentation and First Reading (Standing Order No. 57)
Mr. Michael Mates, supported by Mr. Bruce George, Sir Menzies Campbell, Patrick Mercer, Mr. Michael Clapham, Nick Harvey, Sir Peter Viggers, Simon Hughes and Sir Michael Spicer, presented a Bill to provide for the equal treatment of forces widows' pensions in respect of retirement from military service for the periods before 1973 and between 1973 and 2005; and for connected purposes. ...............................[UK Parliament].  back to the top

Bruce Houlder, QC, the top criminal silk taking on the Armed Forces
When appointed the first civilian in charge of military prosecutions, Bruce Houlder, QC, faced accusations that he would "let our boys hang out to dry". Others said that he had been put in post to "whitewash the crimes of the military". Houlder, who took over on January 1 as the independent Director of Service Prosecutions for all three Armed Forces, is determined to prove that he can steer a middle course. [Times, 8 January 2009].
See also: [Times Comment, 2 Jan 09back to the top

The Manual Of The Law Of Armed Conflict (Joint Services Publication 383) — Amended Text
Amendments made in 2007 to the published editions of the Manual Of The Law Of Armed Conflict are available for free download here. (Thanks to Will for the information).  back to the top

Black Rod: Another military man for the job
Lieutenant-General Sir Freddie Viggers KCB CMG MBE as the next Gentleman Usher of the Black Rod, in succession to Sir Michael Willcocks, who will retire in May 2009. Details here.  back to the top

Armed Forces: Snatch Land Rover Statement
The Parliamentary Under-Secretary of State, Ministry of Defence quoted John Hutton as saying that a public inquiry into the continued use of Snatch landrovers would not be the right way to proceed. "I have sought comprehensive advice on whether the continued use of Snatch is necessary, particularly given the substantial investment that we have made in new protected vehicles in recent years. The clear advice to me from military operational commanders, unanimously endorsed by the Chiefs of Staff, is that Snatch remains essential to the success of our operations in both Iraq and Afghanistan. In the light of this authoritative assessment, I have decided that it would be inappropriate and unnecessary to conduct an inquiry. These are matters on which I must rely on the considered judgment of military commanders who have experience of conditions in Iraq and Afghanistan and access to specialised military engineering expertise. " Access on-line.  back to the top

Call for independent public inquiry into the use of the Snatch Land Rover
Petition the Prime Minister to call upon Defence Secretary John Hutton to instigate an independent public inquiry into the use of the Snatch Land Rover in the Iraq and Afghanistan conflicts. Submitted by Susan Smith of MFSG. Link Removed  back to the top

Need for a Bill of Rights
There currently exists an unusual cross-party consensus about the need for a "British Bill of Rights". In its Governance of Britain Green Paper (July 2007) and the Prime Minister's statement to the House of Commons on 3 July 2007, the Government committed itself to exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The Conservative Party had previously announced that it proposes to replace the Human Rights Act 1998 (HRA) with a British Bill of Rights whilst remaining a party to the European Convention on Human Rights (ECHR) and has appointed a Commission of experts to consider how to achieve this. The Liberal Democrats have reiterated their longstanding commitment to a Bill of Rights as part of a written constitution for the UK. ....[read more....back to the top

Joint Committee on Human Rights - Twenty-Eighth Report
The Committee had been concerned enought in 2004 to write to the then Minister of State for the Armed Forces, Adam Ingram, over Methods of physical and psychological coercion that had been used by British interrogators to obtain confessions and extract information. One of the issues raised concerned the possible use of five 'conditioning techniques' - wall standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink - in interrogation. The use of these techniques was prohibited by the Government in 1972, following allegations about their use in Northern Ireland. In the case of Ireland v UK in 1978, the European Court on Human Rights found that the combined use of the five techniques amounted to a practice of inhuman and degrading treatment. During court proceedings, in 1977, Sir Samuel Silkin, the then Attorney General, gave an "unqualified undertaking" that "the five techniques will not in any circumstances be reintroduced as an aid to interrogation". In its 28th Report, the Committee voiced concerns over Discrepancies in evidence received.  back to the top

UK Armed Forces MoneySaving
A new MoneySavingExpert.com's Forum dedicated to the Armed Forces, created to look at issues that are specific to members of the forces. Whether it be getting goods delivered overseas, the difficulty of getting life coverage, what's available when leaving the forces, specific discounts and how to get back to civilian life. This is a fantastic site with lots of really useful tips. Link to it hereback to the top

The Armed Forces (Service Complaints) (Consequential Amendments) Order 2008 (Draft Order)
The Working Time Regulations 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 provide that a complaint cannot be presented by a member of the armed forces to an employment tribunal under those Regulations unless a complaint under service complaint procedures has been made about the same matter and not withdrawn. Consequent upon the Armed Forces Act 2006 this Order amends those Regulations so that they refer to service complaints brought under that Act: The Armed Forces (Service Complaints) (Consequential Amendments) Order 2008 back to the top

Civilian QC chosen to run military court despite MPs push for specialist candidate
A civilian lawyer with no experience of the military has been appointed to take charge of courts martial against British soldiers. A committee of MPs urged the Ministry of Defence to give the job of overseeing the military justice system to a candidate with specialist knowledge of the forces and an understanding of the pressures of combat. Instead, the £130,000-a-year role of Director of Service Prosecutions has gone to Bruce Houlder, QC, a criminal law barrister with no experience of the forces and no specialisation in military justice.
For an interesting discussion, see the Select Committee on Armed Forces First Report where the MoD representative said, "Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience."
The parliamentary discussion on the Armed Forces (Alignment of Service Discipline Acts) (No.2) Order 2008 is very worthwhile reading and shows the confusion over the appointment of DSPA. back to the top

The Aitken Report
An investigation into cases of deliberate abuse and unlawful killing in Iraq in 2003 and 2004. It focuses solely on those instances where members of the British Army are alleged or proven to have mistreated Iraqi civilians outside the context of immediate combat operations. It seeks to explain what happened in each case, and to describe the context in which they occurred; but its principal purpose is to detail the measures the Army has taken to ensure (as far as possible) that they are not repeated. It makes deductions based on evidence from official reports, court judgments and interviews. Because inquiries are not yet complete into all the cases with which this report is concerned, it also recommends other areas that will need to be addressed by further work. Read it on-line hereback to the top

R-v-Payne and others
The Crown's opening, charge-sheet and judge's ruling on reporting restrictions are to be found on the website at this page.  [Posted: 22/x/06]
News items relating to 1 QLR War Crimes Trial  1 QLR Case. back to the top

A catalogue of abuse
What will it take for our government to face the awful facts of British detention policy in Iraq? Evidence now publicly available proves that UK forces had a systematic policy that led to the execution of scores of Iraqis in detention, and the torture of countless more. But most people remain blissfully unaware of the truth, while the government chooses to ignore it. It seems that it is too painful for the nation to recognise that what we did in Iraq is no more than what we have always done in times of conflict, and that an arrogant, brutal racism that harks back to colonial times requires urgent exorcism.   [Guardian, 19 Oct]    [Posted: 22/x/06]  back to the top

RAF clerk gets £484,000 for typing injury
   A clerk in the RAF has been paid £484,000 compensation for an RSI-style wrist injury - nearly NINE TIMES what a soldier would get if his leg was blown off in action. The scandalous payout, which will astonish troops who have been mutilated in Iraq and Afghanistan, went to an unnamed typist in her twenties who developed the strain in her right hand. She had been inputting Royal Air Force data and medical experts judged her work-related injury would prevent her finding a new job. ..............................[News of the World, 29 Jul]      back to the top

HMCSPI Report into the Army Prosecuting Authority
The HMCPS Inspectorate report into the Army Prosecuting Authority 2007.
Follow-Up Report February 2009   back to the top

His Honour Major-General Sir David Hughes-Morgan, Bt, CB, CBE
Sir David, a former Director Army Legal Services, died on 15 July 2006, aged 80. His intellectual acuity and warmth of personality shall be greatly missed. His obituary can be read hereAspals. [Posted: 21/vii/06] back to the top

Selman and others - Army verdict throws up questions
Quite apart from the unanswered aspects surrounding the death of a young Iraqi, the "not guilty" verdict throws up another series of questions. (This item was published by the BBC on 7 JuneAspals. [Posted: 16/vii/06] back to the top

In the cases of Sergeant Selman and others - Lords Questions
Lord Astor of Hever asked Her Majesty's Government a number of questions about the case and the decision to prosecute. The government response was given by the Attorney General   Aspals. [Posted: 3/vii/06] back to the top

British Armed Forces Federation
A website dedicated to the federation designed to protect the rights of servicemen. Aspals. [Posted: 4/vi/06] back to the top

Report To The President: Death Of Slobodan Milosevic, by Judge Kevin Parker
Slobodan Milosevic died in his cell at the United Nations Detention Unit in the Scheveningen Penitentiary Facility on Saturday morning, 11 March 2006. By order made that day, pursuant to Rule 33 of the Rules of Detention, the President of the Court assigned Judge Kevin Parker to conduct a full inquiry into the circumstances surrounding his death and to report his findings. The terms of inquiry were without restriction. This report is available hereAspals. [Posted: 31/v/06] back to the top

Highland lament: Scotland's oldest regiments march into history
It was out with the old and in with the new yesterday as six Scottish infantry regiments were consigned to military history. While Black Watch veterans, wearing the red hackle, lamented the loss of their 267-year-old regiment, serving soldiers wore the cap and badge of the new Royal Regiment of Scotland for the first time. .... [Telegraph].  [Posted: 29/iii/06] back to the top

High Court judge to hear 'war crime' case
The court martial of Col Jorge Mendonca and six other servicemen charged in connection with the death of an Iraqi civilian will be conducted by a High Court judge, it has been announced. Mr Justice McKinnon, 67, a highly experienced trial judge who hears civil and criminal cases, has been assigned to the men's trial.  [Posted: 23/iii/06] back to the top

Too Many Rotten Apples
Transcript of an interview with a private soldier, a Fusilier A of the 1st Bn, the Royal Regiment of Fusiliers, who has since left the army. It was carried out by a Royal Military Police Special Investigation Branch officer as part of a "lessons learned" investigation into a botched SIB investigation into allegations of drugs taking and conspiracy to murder at the battalion. The interview took place on June 27, 2003. Most of the battalion were on leave after returning from Iraq. The day after the interview took place, Fusilier Gary Bartlam, another member of the same unit, walked into a photographic shop in Tamworth, Staffs to have some photographs developed. [Times, 12 Feb 06].  [Posted: 18/ii/06] back to the top

We have received a rather humorous script which shows how differently things could have turned out if Nelson were a modern commander. If you embarrass easily, it is not for you. If you do not, then link here  [Posted: 27/xi/05]  back to the top

Trial of 7 members of 3 Para stayed
7 soldiers accused of the killing of Nadhem Abdullah were acquitted by direction of the judge advocate general who ruled that, although he found sufficient evidence for a properly directed court to conclude that
(a) Nadhem Abdullah is dead
(b) that he died as a result of an assault, and
(c) the assault was carried out by Cpl Evans' section,
he did not feel that if unlawful force was applied there was sufficient evidence to identify which of the defendants applied that force or whether it was applied after other members of the section joined in. Since those not involved in the assault on Nadhem could not be guilty as secondary parties, and the prosecution could not identify any single defendant who applied unlawful force, then there was no case against any of the defendants. The prosecution in a court-martial has no right to appeal terminating rulings such as this.
Read the ruling here (you will need Acrobat. This is a large file of over 500kb)
In spite of unsubstantiated media claims that the trial cost £10m Aspals has learnt that the true figure is in the region of £½m.  [Posted 3/xi/05, revised: 5/xi/05] back to the top

Military police chief found dead
The senior military police investigator in Iraq was found dead at the British base in Basra, the Ministry of Defence (MoD) said. Captain Ken Masters was discovered in his accommodation in Waterloo Lines in southern Iraq on Saturday. The MoD said an inquiry was under way but the circumstances were not regarded as suspicious. Captain Masters, who was 40 and married with two children, had served with the Royal Military Police since 1981. Fuller story at BBC News. Our condolences to Ken's family. Aspals [Posted 19/x/05] back to the top

Prosecution of British Soldiers - Statement of the Attorney General
This was the statement made on 14 June 2004, concerning the position in relation to prosecution of soldiers and offences involving Iraqi civilians. Link Here. [Posted 8/v/05] back to the top

Iraq War - Advice of Attorney General
The full advice letter to the Prime Minister from the Attorney General, Lord Peter Goldsmith, of 7th March 2003 has now been released. It is an opportunity for the public to judge for itself. Read it in full here [Posted 28/iv/05] back to the top

GCM of Kenyon, Larkin and Cooley
Read the consolidated news reports on the trial of these four soldiers, members of the 1 RRF (1st Battalion, Royal Regiment of Fusiliers) who were tried and convicted of abusing Iraqi civilians. News items posted to the Kenyon Trial page. [Posted 8/iii/05] back to the top

Iraq: Key documents library at the Guardian
Links to reports by the ICRC and Amnesty, plus other important documents. This is a most useful source. Link to it here.  [Posted 27/viii/04] back to the top

Council of Europe Recommendation 1572 (2002) 11
Right to association for members of the professional staff of the armed forces (adopted by the Standing Committee on behalf of the Council of Europe's Parliamentary Assembly, Sept. 3, 2002).
1.  The Parliamentary Assembly recalls its Resolution (1988) on the right to association for members of the professional staff of the armed forces, in which it called on all member states of the Council of Europe to grant professional members of the armed forces, under normal circumstances, the right to association, with an interdiction of the right to strike. It also recalls its Order No. (1998) on monitoring of commitments as regards social rights, calling on the member states to implement the European Social Charter... (read more)
Doc. 9518,15 July 2002
Chapter 9 of the Handboook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
Recommendation 1742 (2006)  back to the top

Armed Forces Discipline Act 2000    Link to it here: Armed Forces Discipline Act 2000
Visit the Aspals synopsis page for a brief overview. back to the top

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