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18 Dec: Yes, hear hear. Merry Christmas to all.   Briony
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18 Dec: The board has been silent for a long time, which is a shame but I wanted to wish everyone at Aspals a merry Christmas and thanks for continuing to provide free access to military law cases and materials.   Tess
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Thanks, Tess. And a Merry Christmas to you too. As for the Board, please feel free to contribute.      Aspals
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27 Nov: Can I just add a point to the ones Scipio made. The RAF also sends its lawyers into the High Court and Court of Appeal and has been doing this for some time. This is great for the lawyers who do this, shows the higher courts that they can perform well at these levels and has the advantage of saving money in the process.   Briony
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There is absolutely no reason why service lawyers should not appear in the high court and court of apeal. The Services have some very able advocates who can truly hold their own with their civilian counterparts. As Briony say, the added bonus is the saving to the public purse which comes from employing an in-house advocate.      Aspals
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26 Nov: Just when we thought it had all gone quiet over the Blackwater affair, they are up to something else. They are such a hot potato that President Bush and his gang are doing everything they can to stop them from being prosecuted. Does the US administration know anything at all about integrity?.   Dick
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25 Nov: I want to take issue with Tuppy's claim that lawyers from other services wouldn't have prosecuted some of the difficult cases faced by the army. First, there is absolutely no evidence to support that claim. Then the RAF successfully prosecuted consientious objectors, officers and enlisted, at a time when army court martials were finding it difficult to convict anyone for Iraq related offences even when deaths were involved (the Para case, the Irish Guards Case, then the notorios Payne case). Sounds to me like they are up to the job. As for the navy, their lawyers seem to spend a lot of time in the court of appeal. If they couldn't handle themselves there, they would end up as mince meat. They seem to thrive on the challenge.  Scipio
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To add some support to Scipio's observations, I have today posted a case (R-v-Brown) concerning the Naval Prosecuting Authority, which relates to a successful appeal against a judge advocate's terminating ruling. This appeal was conducted by NPA officers. They not only brought the first such appeal of the three service criminal justice systems but also argued it themselves.     Aspals
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25 Nov: the bunch thats in power never understood the forces as none of thems served. does anyone really believe brown changed his colours. he was bliars chancellor of the exchequer and starved the forces of the cash it needed for the wars he and bliar sent them off to fight. now he suddenly wants to be seen as the champion of the services. I can hear the sound of pigs revving up for take off  pete
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24 Nov: There are some strong points made by Southern Cross and I agree with most of what he says. The places my brother and his family lived in when he was in the army differed wildly from one place to another. I remember when he lived in Germany the flat was awful. It was damp and proper plumbing was only a dream. Even then I told him he should complain about it as it was a breach of article 8 of the ECHR. His attitude was typical of others living in that block of flats that complaining wouldn't get them anywhere and might even harm their careers. When I said that didn't stop the wives complaining my brother said it did because complaining wives were regarded as a liability to a serviceman's career and CSMs would give them a hard time about it, so no one complained but everyone knew about it especially the medical staff. I don't know whether that's a case of stiff upper lip by the soldiers or just contempt by the chain of command. Reading all the stuff recently in the press, I wonder if any of the commanders ever raised any concerns when they had the chance and if they did why they never made an issue out of it that Gen Dannatt has. It was all kept hidden before then and that's why nothing happened. Dannatt gets my vote.  Chris
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24 Nov: What a bevy of news stories today all of which just goes to prove the point that it's not just the government but the public too that doesn't appreciate the price our soldiers pay for serving their country. You've got the former chiefs quite rightly making a noise, though you cant help wondering why they didn't do this when they were serving. They complain about the dire state of funding of the armed forces and how the grand statements of the government about how the budget increase in funding is far greater than ever before are nothing more than a hot air. Why, because the services have been so badly underfunded for so long that some of this increase will merely make up for that underfunding. But the real sting is that the treasury, Gordon Browns fiefdom for about 10 years until he became PM never provided funding that matched the level of military and operational commitments the services were facing. The army needed money not just for equipment and training but also for providing decent housing for its military families for which incidentally rent is paid by the serviceman. Don't think I'm a Tory supporter either. It was the Tories that presided over the decimation of the army in the early 90's drawing down its strength from 145000 to just under 100000 today. They called it the cold war dividend. They are not the defenders of the services they make themselves out to be. This present crisis is just a convenient vehicle to take a shot at the government for their own political ends. A tory government wouldn't be any better for the forces.
So nobody should really be surprised about the ignorant and inconsiderate attitude of the women at the swimming pool, or NHS hospitals that allow wounded soldiers to be abused by enemy sympathisers, or the council that banned soldiers marching with weapons through the town or, obscene compensation sums paid to typists for wrist injury compared with sums paid for serious trauma suffered by servicemen or, or. Theres no longer any national pride as most people are suffering an identity crisis brought about by government induced political correctness which tolerates ideas and practices that threaten our indigenous culture and stifle freedom of speech by condemning as a racist anyone who speaks out. The very minorities it gives preferential treatment to repay that favour by failing to serve their chosen country in significant numbers in its armed forces. With attitudes like that, is it any surprise that theres no pride in our armed forces.
As for the former chiefs of staff, they are right to make a fuss about what's happening, but they aren't whiter than white. Believe it or not folks, we should remember that the crappy state of service accommodation has been a problem for some years, during their tenure as senior commanders. In Germany the army took over really good quality German houses and flats and failed to maintain them regularly. In UK, they virtually failed to maintain them at all “ leaking roofs, rising damp, antiquated plumbing, terrible state of internal decoration, old carpets you name it. The places I've lived in with my family would never have been given to a civvy or an asylum seeker. It would have breached their human rights I'm sure. It's a pity that government concern for human rights doesn't apply to the army. If it did, families wouldn't live in the crappy accommodation they do. Gen Dannatt had the courage to speak out and raise the profile of the military covenant. Some criticised him as acting unconstitutionally, but what else was he to do. The nation is entitled to know when its fathers, sons, daughters, sisters and brothers are being betrayed by their own government who was only too happy to send them to war on a lie.
I left the army this year and plan moving to Australia in the new year with my family, a country which is really proud of its troops and where there's a strong sense of national identity. Even though the idea of political correctness isn't unknown there, it hasn't become a government obsession like it has here. Australians are proud of being Australian. Isn't that how it used to be in UK?   Southern Cross
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It took some doing, Southern Cross, but I found the links to the items you referred to. References now added to your posting.      Aspals
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20 Nov: what does a civvy know about prosecuting soldiers? come to think of it what does a navy lawyer know about soldiers?   pete
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20 Nov: Just a bit surprised to hear a para, cos i presume thats where Pegasus comes from, defending the lawyers from other services. I don't think they would have had the bottle to prosecute some of the hard cases flowing out of Iraq. They're far to cosy with the chain of command.   tuppy
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19 Nov: I don't think you should be too unkind to lawyers from the other two services Pete. They have some fine people. I've worked with several RAF and Navy lawyers in my time and have been impressed by the quality. I don't see any reason why they could not hold their own in heading up the new prosecuting authority. The most important things are to stop creeping civilianisation and to make sure that the new organisation is truly indpendent from both the MOD, and the three service chains of command.  Pegasus
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And Aye to that, Pegasus. I would add that the TSPA should also be free from meddling politicians and anyone else who wishes to undermine their independence. The new head will need the courage to stand up to anyone who seeks to challenge that independence. It was won at a heavy cost (I still bear the scars) and should not be given up.      Aspals
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18 Nov: sorry will i dont agree that a civvy heading up the prosecutors is a good thing. the exception might be if the civvy has previous service and knows something about the system there responsible for but it scares the daylights out of me to think that anyone apart from an army lawyer should hold the job.  pete
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18 Nov: A civvy heading up the new prosecuting authority has a lot of attractions doesnt it? for starters, it will underline the independence of the organisation providing the reporting chain is to the attorney general or DPP and not the army or MOD. A civilian head would also not have any of the career baggage that a service lawyer would have and will bring a fresh approach to service discipline.
Re the Para officer. It seems that every senior officer who leaves the army is destined to be the next chief of the general staff, if press reports are anything to go by. The para who resigned from his £70000 job over poor treatment of soldiers has probably got a well paid job lined up and just wanted to make a point in his letter of resignation. I doubt that poor conditions of service were the actual reason he resigned, but it is a nice thought to use the opportunity to fire a shot across the bows of the MOD, not that they take any notice.   Will
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11 Nov: The civvy ombudsman is just for starters. The next thing we'll see is a civvy head of the services prosecuting agency who has no idea about service life and who will be tucked up in bed with the MoD calling the shots. You probably know a lot about htis Aspals.   Stu
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I couldn't possibly comment!     Aspals
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11 Nov: does anyone really think that a civvy appointed as ombudsman is really for the benefit of the services? kantfan is right that being a serviceman means essentially accepting that your job is ultimatley to kill people and you need to be trained to do that efficiently and with minimum risk to yourself and fellow squaddy. if training is watered down to coincide with h&s rules then it can;t be in anyone's interests. it means we all lose.  pete
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3 Nov: But they couldn't appoint a serviceman pete could they?  Tuppy
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9 Nov: Of course Pete is right, but no one should be surprised by this latest appointment by this governement. It has never understood the armed forces and doesn't have anyone at senior level who's served. It would be too much to ask that the Independent Police Complaints Commission couldn't be headed up by a retired senior officer. Lord knows we're not short of them.   Dick
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8 Nov: so the services will have an ombudsman. its a stroke of sheer genius that they appointed guess who, a civvy who knows bugger all about the services or about servicemen, their environment or needs or the pressures of service life on them and their families.  pete
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5 Nov: The poor old squaddy always gets dumped on and the ungrateful greedy civvy establishment is never slow to stick the knife into there backs.  pete
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5 Nov: Health and Safety laws should not be applicable to the army. If we are to train soldiers to fight in realistic battlefield conditions, where health and safety laws have absolutely no relevance, then our trainers should not be looking over their shoulders constantly to see whether their actions are going to infringe some H and S rule or other. The downside to what is probably a well meaning suggestion is that soldiers will face the consequences if their training is inhibited. They will be coming home in large numbers, in body bags. Soldiers understand when they sign up that their job is to fight. To fight to win and survive they must train and that training must be realistic enough to teach them to cope with what the enemy might throw at them. What the government must do is to ensure that those who are hurt or killed have their lives properly valued and proper compensation is paid to them and their families. There shouldn't be reliance on civilian schemes which impose ridiculous insurance premiums. The MOD should take care of this. If they're prepared to dish out £350000 to an RAF typist for a strained wrist, they should show that a soldier's injuries especially those incurred in combat, are valued more highly.  Kantfan
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4 Nov: The government's insistence upon crown immunity for soldiers injured or killed when not on active service is just another example of the contempt that this bunch of left-wing anti military wan***s holds the services in. The brainless disregard for safety you sometimes see on exercise should be prosecuted if it leads to the death or serious injury of a serviceman or woman. Just because training for war has to be realistic shouldnt mean soldiers lives are put in obvious and serious and unnecessary danger.  Dasher
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On top of it all, there is the news today that soldiers will see insurance costs double to make up for inadequate government death or injury compensation. And they wonder why soldiers are leaving the Service!     Aspals
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4 Nov: You said it mate. the yanks use the rules of the wild west and thats why everyone whose got anything to do with them thinks there cowboys.   pete
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3 Nov: US condoning Blackwater? A clear licence to kill any foreigner. Shoot first and ask no questions.  Tuppy
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2 Nov: As the US gears itself and us up for a war against Iran let's hope the legitimacy is properly examined by international lawyers this time before the government takes us into another unlawful fiasco.   Tess
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30 Oct: The jurisdictional provisions governing coalition forces and accompanying civilians in Iraq are governed by Coalition Provisional Authority Order Number 17. This Order provides for Sending State jurisdiction over military and civilian personnel accompanying the force. Unfortunately, the US does not exercise jurisdiction over US civilian personnel outside the states for constitutional reasons, although some inroads have been made through the extra-territorial jurisdiction act passed a few years ago. As can be seen from today's announcements, the US administration far from condemning what Blackwater does and the way it does it has actually decided to grant immunity.  Pegasus
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Thank you for reminding us of these provisions, Pegasus. There is also an interesting article from Captain Glenn R. Schmitt(1) United States Army Reserve, which examines the problem of American civilians who commit crimes while accompanying the Armed Forces abroad. I am afraid I do not know how well in practice the act has operated.     Aspals
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28 Oct: Refferring to Tess. The chances are that when Phil Shiner gets his case up and running in court, that is if the MOD doesn't back off well before then for fear of what will come out, we might still not learn the truth about what went on in that battalion over the 40 odd hours QLR held on to those prisoners unless the witnesses include soldiers who were there. I remain unconvince that the high court case will find out who was responsible for Musa's death although the actions of those in authority could very well fall under close scrutiny. If I were an officer or senior rank in the former QLR who was in Basra at the time, I think I would be getting worried.  Kantfan
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27 Oct: I agree that its better to be dealt with by your own legal system, which is what would happen in the example Lewis gave. The difference is that the act does entertain the possibility of the UK trying to exercise jurisdiction over a non UK national working for a UK security firm who opens fire to protect someone part of the UK force. Self defence varies enormously from one country to another. Under our system its quite strict compared with say France. So a Frenchman opening fire in self defence would be aware of his own domestic law, yet he potentially falls to be judged according to the stricter criteria under English law. I think the French might protest about that sort of British arrogance and quite right too. If there is no intention to try to use such a broad authority I don't think it would have been included in the act.
While we exercise jurisdiction over our own nationals in some case when they commit crimes abroad (murder, sex offences), or prosecute foreigners (once they come into our jurisdiction) who commit offences against our nationals (eg murder), I have never know a situation where we exercise authority over foreign nationals overseas merely on the basis that they happen to work for a UK firm. In fact, a designated organisation could be a non UK organisation, which is even more strange.
The choice Lewis refers to is a clear one: no Brit would ever want to choose sharia law over our own. But what if the choice isnt faced by a Brit and the host nation law isnt something as primitive as sharia.   Briony
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27 Oct: Its good to see that its a military lawyer that's speaking out about the goings on in Guantanamo. It goes to show that as far as integrity goes the leading lights in controversial cases are military lawyers. We have our own example in the shape of Col Mercer who had the courage to take on the attorney general over what was allowed as far as treatment of Iraqi prisoners goes.   Stu
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27 Oct: It's a pity that members of the QLR don't share your sense of shame Tess.  Tuppy
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26 Oct: Isnt it strange how no one heard Baha Musa's dying screams, reported in the Guardian today. Merging that batallion was too good for them. They should have been disbanded in disgrace and there name permanently tarnished with that dishonour. That no one has been held responsible and punished for Musa's death and the abusive regime inside that detention room fills me with shame.   Tess
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25 Oct: I can envisage the Sch 15 power being used to encompass some civilians that we would not normally deem to be within the military ambit. For example, it might be that the government in some theatre one day might contract out the security of the embassy or government officials to a PMC. Consequently the act is written widely enough to encompass such an organisation that could be designated by the minister and come within the act.
It would be quite likely that I might fall within the scheme in certain circumstances. For example, it was planned for the Bulford trial that I and other defence lawyers were to go to the scene as part of the preparation. For various security reasons it did not occur. If on the convoy travelling into the scene we were attacked and the convoy required to fight its way out of an ambush, I would have wished to be covered by UK mil law than any Iraqi local law if we found ourselves relying on "self-defence" - particularly as I think I would have preferred to rely on an SA80 rather than Archbold (even if I am a little rusty on WHD's I can remember how to load and make ready!!)   Lewis Cherry
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24 Oct: i tend to agree with lewis about the practicalapplication of the power that he says is in the new act but it does seem a bit strange to make such a wide power that includes foreign nationals if it is never seen as being used. does anyone know why did mod put this in the act. i dont remember any power as wide as this when i was in the army.   pete
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23 Oct: Its an interesting thought Will to exercise jurisdiction over foreign nationals working for organisations supporting British troops. Applying that to security firms, I'm not sure many commanders would feel comfortable being responsible for firms that operate like Blackwater does. As for Tuppy's comment, I never said the judge's decision wasn't strange, just that it was his decision and that for whatever reasons it couldn't have been unjustified otherwise the prosecution could have appealed it which they didnt. That got me thinking about the merits of their case in the first place and whether there actually was sufficient evidence to justify a prosecution or whether it was a case as Colonel Mendonca has said himself, of wanting a senior officer's scalp after the criticisms of the media in the breadbasket case.   Scipio
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22 Oct: Mr Shiner's interest in the lot of Iraqis is easy to see - having a go at the british military is a bit like shooting rats in a barrel, you can't miss. I agree with Stu that the cock up in the trial of Musa has done the reputation of the UK no good at all and will take us many years to recover from and because of that everbody is wary of military justice actually effectively dealing with soldiers who kill and injure civilians. The Musa case has shown that not only are we not the good guys we've always told the world we are, but we've shown that we will cover up any wrongdoings if a case is ever prosecuted. Scipio can say what he wants about the judge and the reasons he made his rulilng, to me it still sounds like a strange decision and one that will haunt the military system for years.  Tuppy
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22Oct: I hope Lewis is right about the practical application of Scedule 15. Trying to exercise jurisdiction over "foreign" nationals who happen to fall with the designation provisions of the act could be highly difficult although the provisions do seem to allow for it. Maybe the option of UK military law or Islamic law would be an easy choice for security firms and their people. My brother (who has served) tells me that some of the support organisations employ some very dodgy types from a number of different nations - Rumania, Hungary, Albania - and they some times literally get away with murder (lorry drivers in hit and run incidents on civilians). If there's no local force of law and order, and the military dont have authority to deal with them who will. My brother thinks its a good idea to bring some of these people under military law, even if difficult to implement. Perhaps we'll just have to wait and see how it works in practice, if it is ever used.   Will
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21 Oct: Will, The provisions of Schedule 15 are unlikely to be used by HMG to regulate Private Military Companies. Probably for many of the reasons you outline!!
I think you will find that they better fit the "embedded journalist" category of civilian where the designated area is one where medals are being awarded. They are fairly widely worded such that they could encompass a PMC employee, but there is no history of trying to rope in people who are not within the fold, and where the military are not trying to control them closely.
It fits better with a journo trying to get a scoop by breaching the security regulations, or more simply if the journo punches a soldier or possibly steals from someone eg a local national, whilst embedded. Then, like a serviceman (or NAAFI EFI worker) they can be dealt with under service law ... I understand employment opportunities for one handed cameramen are much reduced if convicted of theft under Sharia law. Hope that Helps.  Lewis Cherry
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20 Oct: As I'm not watching the rugby I've spent my time productively looking at this forum. The Armed Forces Act provisions Aspals points out suggest to me that UK seeks to exercise jurisdiction over non-UK nationals outside UK if they (a) work for specified military organisations eg NATO? or (b) they are in a "designated area" as a member or employee of a specified organisation or is (c) a person designated by or on behalf of Defence Council. The exception is where the individual is a national of or oridnarily resident in the country occupied.
This is a fascinating attempt to extend jurisdiction over anyone "designated". As I read it, the Defence Counsel could designate a security firm providing services to UK business personnel who are supporting the military operation or designate any person if for the purpose of maintaining good order and discipline.
So this could cover non-UK civilian security personnel working for a firm within the UK force commander's area of operations. A brilliant idea, but difficult to see how we could actually bring to trial say an Italian working for a security firm within the Brit AOR in say Iraq,who shoots a civilian in what he says is self defence (perhaps according to his own domestic law) but what we say is murder or excessive self defence. This is compunded by the fact that the Iraqis would have the legitimate claim on jurisdiction, as would the Italians.
Perhaps these provisions are designed to operate when there is a legal vacuum and tie in with the legal duties of commanders under the Hague Rules r. Article 43 "The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." All the same, I am a bit sceptical that we would actually ever try a truly foreign national in these circumstances especially if the court of trial is a military one. What do others think?    Will
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20 Oct: Mr Shiner is at it again i see. It seems to me that if the court martial had dealt with the Mousa case properly then we wouldn't keep getting the bashings we do over the way troops behaved. The decision in Musa was nothing short of a disgrace. Theres no other way to describe it. A man was murdered and no one was held accountable due to a closing of ranks in the biggest ever display of regimental amnesia. How can we blame people for regarding our soldiers as lawless psychopaths with a licence to kill even prisoners in there possession. Confidence in the services is severly undermined. Now more accusations are heaped on our boys for killing and executing Iraqis. Personally I dont believe that happened. Newspapers report only half the facts. What went on in some of the incidents Shiner talks about was all out fighting where people lost limbs and eyes through being hit by rounds. Not that the truth should ever stand in the way of a good law suit.   Stu
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20 Oct: Pegasus makes a good point about jurisdictional difficulties over none military companies and personel. Someone told me that there is legislation in place to ensure that jurisdiction can be exercised over civilians by the miiltary.   Lorna
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Lorna (and others), take a look at Schedule 15 to the Armed Forces Act 2006 which governs the provisions concerning civilians subject to Service discipline. There are two paragraphs of particular interest: §6, which relates to "Persons in designated area who are members or employees of other specified organisations" and §7, which relates to "Persons designated by or on behalf of Defence Council". But also take a look at §11 (1), which states "A person who is not a United Kingdom national is not within any of paragraphs 4 to 10 at any time when he is in a country ” (a) of which he is a national; or (b) in which he is ordinarily resident."  Hope that helps the discussion.   Aspals
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20 Oct: The problem is that the Blackwater affair has given all private security firms operating in Iraq a bad name. They dont all operate like Blackwater, thank God, and this is shown by the fact that its only Blackwaters name thats been brought up as operating a shoot first policy.  pete
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19 Oct: I don't try to challenge what Dick says about the Iraqis, but it is a bit frightening to have trigger happy security people carrying weapons, opening fire and killing and injuring innocent people and being answerable to no one. It makes the job of the military that much harder especially when they are trying to win hearts and minds.   Pegasus
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17 Oct: The immunities in the Blackwater case were negotiated with the Iraqis, so they have no one to blame but themselves for the consequences. It was the price they had to pay for firms moving in to help with the reconstruction. The senior management of those firms need protection from the fanatic factional murderers that abound in Iraq and Blackwater provide that security and protection. Their protection of key workers and management enables the nation building to continue, which was and is to the benefit of the Iraqi people.   Dick
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17 Oct: I just accept that the judge advocate made his ruling based upon his view of the strength of the evidence and my change of heart as you put it was influenced by the absence of any appeal by the prosecution.   Scipio
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17 Oct: The problems over using civilian contractors is nothing new, it's just that the Americans use more of them than we do. How do you exercise jurisdiction over the personnel employed by them when the contractor may employ your own nationals, nationals from the "host" nation and nationals from other countries? Any legislation Parliament enacts may work in the case of our own nationals going around killing people but where would the jurisdiction come from to deal with foreign employees?   Pegasus
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16 Oct: I don't understand how gun toting security officials can carry guns and shoot people with total impunity. soldiers are subject to military law. how come security personnel stand outside even the domestic law of the host nation?  Tuppy
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16 Oct: The Blackwater shootings show how dangerous it is to allow organizations like them into any theatre of operations and not make them subject to the same jurisdiction as the troops of the nation to which that organization belongs. The Iraqis are understandably peed off about his, but they must have agreed to the jurisdictional arrangements that granted them immunity.  Paul
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16 Oct: Not realistic Scipio. You were realistic before. Now youve been brainwashed by the daily mail.  Tess
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15 Oct: I've been a bit surprised that no one on here has commented at all on the shootings of iraqis by private contractors. These people are outside the law and I dont understand how they can operate without any accountability at all. I sympathise with the Iraqis and the frustration they must feel about these mavericks.   Dave
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14 Oct: I am not being inconsistent merely realistic. The judge will have been aware of all the arguments on command responsibility and have been aware of the Yamashita case. Ultimately he decided that the prosecution case just didn't cross the threshold for going on before the jury. Lewis explained this in some detail and I accept that now.   Scipio
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14 Oct: Youve changed your ideas Scipio. I seem to remember reading on this site that you referred to the Yamashita case and were concerned about how difficult it was to understand how the judge came to the decision he did when he made his ruling at half time. Why the about face?  Tess
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13 Oct: I still think that Mendonca was prosecuted because it was felt a senior officer had to be made accountable whether or not he was actually to blame.   Scipio
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