Aspals Reading List

Military Legal Issues - 2004

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Date	Title	Author	Reference
December 2004 *New*	Occupation for Hire - Private Military Companies and their Role in Iraq	David Simons	RUSI Journal, Jul 2004 Vol 149, at p68
Only since the war in Iraq has the true extent of Washington's 'outsourcing' been laid bare. Can we do without PMCs now that our forces have shrunk to the dangerously low levels of recent times? How do they differ from mercenaries? The Foreign Enlistments Act of 1870 prohibits British citizens being enlisted for foreign service, although the author considers this impossible to enforce. But what law governs PMCS and, more importantly, whose jurisdiction do those employed by PMCs in a (former) war zone come under, where the state infrastructure is not yet reconstituted? Who authorises the carrying of weapons by PMC employees and the circumstances in which force can be used by them? Inappropriate responses by such individuals can spark major incidents with which the military subsequently has to contend. What sanction is there? How does one categorise any intensive and sustained exchange of fire between employees of a PMC and rebels/insurgents? Do the Geneva Conventions apply? If not, what does? These latter questions are yet to be fully resolved. Summary by Aspals.
December 2004	European Military Law Systems	Georg Nolte
The German Ministry of Defence decided in 2000 to commission a study comparing various European systems of military law. This volume contains not only the original study but also all national reports in English. It provides a comprehensive analysis of different European military law systems on the basis of national reports. Summary by Amazon.
October 2004	The International Criminal Court	Steven Kay QC	The Inner Temple Yearbook at, p.38
The author argues that we have entered a new age where citizens of the world are not prepared to accept that their governments may harm fellow human beings in their name even if it be for a so-called "just cause". He asks whether the world is a better place for having the ICC. Summary by Aspals.
October 2004 *New*	Establishing the Rule of Law in Iraq	Christpher Mitchell-Heggs and Salam Abdullah	The Inner Temple Yearbook at, p.42
The campaigns of purification and liquidation carried out by the Baathist regime during the last forty-five years corrupted the civil law and destroyed the old system of justice. Since June 2004, when sovereignty was handed over to the interim government, the rule of law is sustained by the Cabinet of Interim Ministers. A fascinating article describing the efforts to made to re-establish the rule of law in this war-torn and much troubled part of the world. Summary by Aspals.
5 Aug 2004	New war, new law	Ben Brandon and Ben Watson	Solicitors' Gazette Vol 101/31 at, p.12
The authors argue that the war against terrorism has forced the US Supreme Court to rethink the laws on armed conflict. They consider that the guardians of the rule of law have acted decisively and that, for however long the 'war on terror' subsists, in the US the intervention of the law is guaranteed. Do the Geneva Conventions need modernising? Summary by Aspals.
Aug 2004	Law on the Battlefield (Melland Schill Studies in International Law)	APV Rogers	Manchester University Press
This is a critical study of the key provisions of the law relating to the conduct of combat in armed conflicts on land, illustrated by reference to problems that have arisen during recent conflicts. It is an updated version of the first edition but with two additional chapters, dealing with rules relating to the conduct of combat against members of the enemy armed forces and in internal armed conflicts. The approach adopted is to take a proposition of the law of war, examine its historical origins and current exposition, deal with problems of interpretation and application, especially in the light of recent conflicts, and reach conclusions about how it should be applied in practice. Summary by Amazon.
Aug 2004	The Rule of Law in war time	Mark Agrast	Counsel, August 2004 at p.12
The prolonged detention of hundreds of suspected terrorists generated considerable concern in many quarters, from the American Bar Association to such prominent members of the English Bar as Lord Steyn and Lord Goldsmith. At stake was not only the fate of the detainees but also such larger questions as the rule of law in time of war, the limits of presidential power within a constitutional system of separated powers, the role of the courts within that constitutional scheme, and America's place in the world community. What of the rights of non-citizens? The author takes a look at the leading decisions and the use of habeas corpus to deliver up detainees detained outside the jurisdiction. Summary by Aspals.
Aug 2004	Courts-Martial Discipline and the Criminal Process in the Armed Services, 2nd Edition (2003)	HHJ James Rant QC with Commodore Jeff Blackett RN	Oxford University Press
Times have changed. The legal safeguards for soldiers are now at least as good as those for civilians, and arguably better. Every decision of a Court-Martial is reviewed by the military authorities - a process which can only help the Defendant - and the serviceman has the right of appeal to the Court of Appeal, identical to that of a civilian. The author also deals with the Summary Appeal Court, which hears appeals from decisions by Commanding Officers. The book's only serious rivals are the unmanageable tomes of Army, Air Force and Navy law which, unlike Judge Rant's work, do (rather indifferently) cover the substantive law. They are barely portable. This book is. One definitely for courts-martial defence advocates. Summary by Matthew Scott (see Counsel Magazine, May 2004, for full review) and Aspals.
Jul 2004	Special Forces’ Wear of Non-Standard Uniforms [Please note, this is a pdf file and is over 500k in size. Get Acrobat Reader]	W Hays Parks	Chicago Journal of International Law 2003, Vol. 4 No. 2, at p.493 See also: corrigenda
The NGO community has expressed concern about the legality of US and other Coalition special operations forces operating in Afghanistan in “civilian clothing." Is it lawful for combatants to wear civilian clothing or nonstandard uniforms in combat? It is not without precedent. Lawrence wore Arab clothing as he led the Arab revolt against Ottoman rule that began June 5, 1916. He learned the lesson from the death of Captain Shakespear who was killed by an enemy sniper when his British Army uniform singled him out and identified him as a high-value target. Indigenous forces with which allied special forces might serve may not wish for their allied colleagues to be readily identified. Moreover, the allied troops themselves might be eager to blend in with their surroundings. NGOs might not want it to be thought that soldiers were assisting them in eg humanitarian missions. There are many examples from history where forces have operated in civilian clothing. Is this perfidy? Or is it warranted by military necessity? As with all articles written by Colonel Parks, this is a stimulating read and a valuable exposition of the law in this field. Operational lawyers are well advised to read it. Summary by Aspals.
Jun 2004	A Spy at Woomera? How an Airman Nearly Panicked Harold Macmillan and Sir Robert Menzies	Prof G R Rubin	RUSI Journal, Vol. 149(3) June 2004, pp. 83-87
When secret documents of rocket tests at Woomera were found in the quarters of an RAF servicemen, the Australian Prime Minister, Robert Menzies, nearly went ballistic. He feared a major spy scandal on his watch involving secret East European agents with names like Corba (the defecting Soviet cypher clerk, after the war, Igor Gouzenko, was codenamed CORBY by the Western powers). Macmillan and Lord Kilmuir (Lord Chancellor) tried to pacify Menzies and could find no independent evidence of a spy ring. The subsequent court martial of the repatriated airman at RAF Uxbridge was an anti-climax. There were no spies; only a conviction for unauthorised possession under section 2, OSA 1911. Summary by Author.
Feb 2004	Soldiers left defenceless	Rosalind English	Times 11 May 2004
It is time to review the principle of combat immunity. The substitution of “peacekeeping” for an entire lexicon of more martial terms has led to an unintended consequence: that is, to deprive British soldiers of the immunity from civil suit that used to cover most damage caused during combat. Since the judgment in the Bici case, it seems that the specific “peacekeeping” role of the soldiers, along with their instructions to fire only if they encounter life-endangering conduct, exposes them to open-ended litigation. Summary by Aspals.
Feb 2004	Ending Impunity in Sierra Leone	Justice Geoffrey Robertson QC	Middle Templar Hilary 2004, at p. 22
In 10 years of fighting, over 100,000 civilians are believed to have been killed and a million made refugees. Grotesque attrocities were carried out. UNSC Resolution 1315 declared that the situation in Sierra Leone constituted a threat to international peace. An independent court was ordered to be set up, comprising both international and local judges and prosecutors. This was unprecedented. It will try those "persons who bear the greatest responsibility for the war", but it sanctions exclude awarding the death penalty, otherwise it is unlimited on the length of sentence. See now, Chief judge sidelined at war crimes court, reported in the Guardian, 15 March 04 Summary by Aspals, contributed by Anon.
18 Feb 2004	Marching on to law	Chris Baker	Gazette, 12 Feb 04 at p. 22
Military courts are no longer intimidating, ceremonial occasions, thanks to the Human Rights Act. Chris Baker finds out why servicemen and women are enjoying better rights. He looks at the decision in Grieves, and its impact upon the navy system. However, he ends with words of caution: it is not a sector to go into, in his view, with all guns blazing, unless you genuinely know how to fire them. Aspals.
12 Feb 2004	Human Rights 'hotspots' and the European Court	Philip Leach	New Law Journal, 6 Feb 04 at p. 183
Philip Leach considers how European human rights protection can be strengthened to deal with gross violations through enhancing the powers of the Commissioner for Human Rights and strengthening ECtHR enforcement mechanisms. He considers the ECtHR's fact finding process is absolutely vital in enabling the ECtHR to adjudicate in a meaningful way. The proposal to create a new post of Public Prosecutor to bring cases before the Court in respect of areas where the ECHR "cannot be implemented" is thought to be something of a misnomer, as the Court does not exercise criminal jurisdiction. He highlights Kosovo, where allegations of human rights violations committed by soldiers from Council of Europe states, acting as part of the multinational KFOR, are currently being taken to the ECtHR. Aspals.
13 Jan 2004	Where should Saddam face his accusers?	Christopher Greenwood QC	Times 13 Jan 04
That Saddam Hussein will be tried is not in doubt. But there are questions over where the trial should be held and what charges he should answer. The evidence and the surviving victims are, for the most part, in Iraq. It is Iraqi society that most obviously needs the catharsis that a criminal trial could bring. But should the Iraqis try him? This article also appears in The Middle Templar , Hilary 2004, at p.8. Contributed by Anon
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