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Question/Comment
31 December;  Happy New Year to Aspals. Let's hope that 2009 is a better year for UK sodiering and that the European court doesn't hand victory to those who spread evil through the world. At least our judges got it right   Will
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Thank you, Will, and the same to you and everyone else. I presume you are referring to the Al Saadoon case. As I said before , I am confident that the two Iraqis were not within article 1 of ECHR and their position is quite distinguishable from Musa (Al Skeini). From what I understand, the Court of Appeal was of the view that article 1 did not apply. European precedent in cases like Loizidou v. Turkey (judgment of 18 December 1996), Bankovic and Issa reinforce my view. It will be interesting to see whether the court endorsed the "real risk" test applied by the High Court (I have not seen the Court of Appeal judgment yet to discover whether they applied that test also) or the "near certainty" test suggested by the Commission in Dehwari. The "real risk" argument, which is a much lower threshold, would truly make the task of international crime fighting even more difficult as it would effectively prevent extraditions of wanted criminals to the US, as some states there still practise the death penalty. However, the "near certainty" argument would not. The Al Saadoon case also places in the spotlight the value (or point) of undertakings given, by governments of countries to which prisoners are returned, that they will not impose a death penalty upon conviction. One might ask how can there be any successful fight against international crime if an arresting state is saddled with the burden of evidence gathering and trial of foreign nationals merely because the state in which the offence took place (and where the evidence presumably is) happens to have the death penalty. It would mean that criminals from non-ECHR countries with the death penalty would find a safe haven within convention countries which would then be a harbour for the most vile and dangerous people and would have to allow them sanctuary. Now would that not be a case of standing common sense on its head? I know that Human Rights lawyers may argue that the ECHR places these duties upon us. While I agree in general terms, I think that one has to consider the practical limitations. The ECHR was not intended, in my view, to make the fighting of serious crime more difficult or that the arrest and detention on behalf of another state of dangerous offenders pending extradition imposes full responsibility for them. It must recognise that cooperation between states is essential and that undertakings given by sovereign states (especially those for whom order and statehood was created or re-instated by the will of the international community) should not be interfered with. In the present case, the two Iraqis have made an appearance before the Iraqi Tribunal which has exercised jurisdiction over them and which intends to try them. I think that the ECtHR will uphold our courts in this matter.     Aspals
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23 December: I happen to agree with Pegasus. Things have gone too far in this country. If the Human Rights convention applies to all European states who signed it, why is that the barmy decisions our courts make aren't repeated in other countries.   Scipio
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The Court of Appeal today rejected the claims of the two Iraqis. They ruled that after midnight on Wednesday, when the UN mandate for British forces in Iraq expires, Iraqi police can go to the British compound in Basra and remove the prisoners. As soon as we are able to get hold of a copy of their judgment we will put it on the cases page. If anyone has a copy, would you be willing to let us have one too?     Aspals
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23 December;  The judges must bear the main share of the blame for driving things as far as they've gone, and of course human rights lawyers encouraged by over generous legal aid payments to support these claims. My brother once said to me, when we discussed human rights and the right to life, that when you've stared at death down the barrel of a gun you know you have a very clear understanding of what human rights is all about and what the right to life is all about.    Will
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23 December: responsibilities now theres an interesting thought  pete
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22 December: Cynical I may be, Anthony, but I am also a realist. The Human Rights Act has made the job of soldiering far more difficult than it should be and is probably one o fthe reasons why the yanks think we are a waste of space. We are frightened to death to go out and capture the badduns in case we end up being sued to high heaven for shouting at them while the're in our custody. It's about time some common sense was re-introduced into this mad world of the ECHR and the proper balance restored. Human rights is about our rights, not those of inhabitants of non-convention countries except in the very rare circumstances envisaged by the Al Skeini and Blaskic cases.  Pegasus   
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Maybe the House of Lords will agree with you, Pegasus. Is it the Act that has made the job of soldiering that much more difficult or the way the courts have applied its provisions. One former attorney general mentioned to me that the rights contained in the Act and ECHR had to be balanced against the responsibilities we all have to one another.     Aspals
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21 December: I don't think we should be quite so cynical about the judgment in the Al Saadoon case. Even though the High Court found that article 1 applied, it held that the two men were "persons in the jurisdiction of the United Kingdom but on the territory of the requesting state, in circumstances where the United Kingdom has an obligation under international law to comply with the request. Indeed the circumstances of the present case, in particular the fact that the British forces have accepted the role of physical custodian of the claimants at the request of the Iraqi court and, in effect, for the state of Iraq may be thought to provide a stronger reason why effect should be given to such an international law obligation of the United Kingdom over the obligations that would otherwise arise under the Convention." The court analysed very carefully the applicable authorities and went so far as to say "there is nothing to show that if the claimants are transferred into the custody of the Iraqi court, the Iraqi authorities intend to subject them to treatment so harsh as to constitute a crime against humanity or that there is an immediate likelihood of their experiencing serious injury (in the sense evidently contemplated in that case). There is indeed no real risk of their being treated in any way contrary to internationally accepted norms. Moreover, in relation to article 2, in the case of Regina v. Special Adjudicator (Respondent) ex parte Ullah, the court referred to the ECHR case of Dehwari where the Commission doubted whether a "real risk" was enough to resist removal under that article, suggesting that the loss of life must be shown to be a 'near certainty'. It follows, in my view, that there is no justification in international law for the United Kingdom declining to comply with its obligation to transfer the claimants." All the court has done is grant time for the two men to appeal because of the court's concerns about the one point: the real risk (my emphasis) that they would be subjected to the death penalty if eventually convicted by the Iraqi court. Of course, if the two individuals are regarded as not being under our jurisdiction, then the transfer to Iraq must go ahead as the claimants will have failed to establish the article 1 point. In this regard I suggest the case is distinguishable from Al Skeini (Baha Musa) as Mr Musa was a prisoner of the British in a military detention facilty and subjected to questioning and physical abuse by British soldiers, eventually leading to his death. The evidence was overwhelming that Musa was within our jurisidction. In the present case, these two men have already appeared before the Iraqi Tribunal, which has exercised jurisdiction and are merely being held by the Brits on the request of the Iraqis. Moreover, where nations act under the authority of a UN mandate, the duties under article 103 of the UN Charter (in the event of a conflict between the obligations of members of the UN and their obligations under any other international agreement, their obligations under the Charter shall prevail) obtain. The Geneva Conventions, particularly our obligations under article 12 of Geneva Convention 3 may not be relevant as the claimants were not military PoW, but merely criminal detainees.
On the basis of the authorities, I think the case for transfer to the Iraqi authorities of Mr Saadoon and Mr Mufdhi is strong, but we shall have to wait and see what the Lords make of it. The consequences of upholding the claimants' case in these circumstances, whereby virtually anyone who happens to be held by the Brits (whether they are our prisoners or not) is regarded as bringing the full set of ECHR obligations down upon us, would make the job of soldiering extremely difficult, as Pegasus has already pointed out. There is no evidence, from what I can gather, that these men have been ill-treated in our custody. Had they been, one might be more persuaded by their claims.
Finally, dealing with Pegasus' point, now that the case is before our courts, and especially bearing in mind the High Court's expressed concern, I think it would be a flagrant contempt to release the Claimants on any basis pending their appeal.   Anthony
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21 December: What I suggest we do with Mr Saddon and Mr Mufti is agree that we have no right to hold them in our custody and let them go. Then the Iraqis would be free to arrest them and put them through their system. If our soldiers are to be made liable for every prisoner held in their custody especially as in this case we held these two at the request of the Iraqis, then soldiering will become impossible. But as we know, very few of the present lot of judges would know anything about soldiering.  Pegasus   
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20 December: scipio you cant be that surprised, its human rights of the suspects thats more important in england than victims. why we need to bother ourselves with the rights of non citizens who murder our soldiers is beyond me. let them be tried in their own country acording to their laws.  pete
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20 December: I don't know about anyone else but I was a bit disappointed by the judgement of the high court that the Iraqis accused of murdering our soldiers could be returned to Iraq but they were not sure if they were right in their decision so they want the court of appeal to decide the issue. What an insult to the Iraqi authorities that we look down our noses at their system of justice. This will turn local opinion against our soldiers. Still, the courts probably wont care about that as we are pulling our troops out next year, or so Grodon Brown says.  Scipio
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20 December: Decisions which are unreasonable are open to public scrutiny. If there is evidence that troops on the ground feel they do need the protection of snatch vehicles and there not getting it, then that is some evidence that commanders are out of touch. Commanders can't just give out reckless orders to troops. They owe them a duty of care. If soldiers are saying they need more protection and are being ignored by those in authority, and lives are being put in danger, there's an issue of liability under article 2.  Tess
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19 December: I'm not sure what purpose a public inquiry would serve in deciding whether the decision over use of Snatch was correct. I agree with Aspals that these are command issues. The Savile Inquiry has been going for years and has cost a fortune without any resolution. Naturally, there may still be liability under article 2.  MilLaw
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29 December: come off it tess you cant have a public inquiry everytime the chiefs of staff make a decision that people disagree with, there arent enough lawyers and the country cant afford to pay the millions it would cost.   pete
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19 December (sent 18th): The only way to decide whether the army chiefs are correct in their decision to continue to employ snatch land rover is to have a public inquiry.  Tess
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18 December;  So the army chiefs are implicated in the negligent treatment of our soldiers. If article 2 applies in active service, decisions like this could leave them wide open I think.   Will
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It is an interesting point, Will. I think that the decision by the Chiefs of staff is very unfortunate but it appears to have been made for what they say is a sound operational reason. Bearing in mind that all Ops carry risk, they have to balance the means, the equipment and the risks against the mission objective. If they weigh these considerations carefully, they cannot be said to have taken unnecessary risks with the lives of our servicemen, even if lives are lost. The key, I think, is whether they really are correct that extensive use of Snatch is truly as justifiable as they say when the news from the boys at the front seems to conflict with that. It is not an easy equation to solve.    Aspals
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17 December: When the Defence Secretary says he is not going to hold a public inquiry into the use of Snatch landrovers, because the advice from commanders and the chiefs of staff i sthat they are essential, who is he kidding? He needs to read the newspapers at least where he woul difnd out that only in the past few days an SAS officer quit over the shit state of equipment for our troops. He is the most recent in a line of people who quit for the same or similar reason. In his resignation letter, Major Morley, an Old Etonian officer and cousin to the late Diana, Princess of Wales, who was the commander of D Squadron, 23 SAS, said "chronic underinvestment" in equipment by the Ministry of Defence was to blame for their deaths. According to him, "The boys nicknamed Snatch the mobile coffin." There is a need for a public inquiry. Tuppy
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6 December: Following on from MilLaw, the effect is that in these circumstances the discharge cannot be reversed and that is why I say it is, therefore, valid.  Anthony
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6 December: Replying to Anthony, I think the discharge is invalid but, as he says, cannot now be acted upon by the MoD if the mistake in issuing it was theirs alone and the soldier has relied upon it in good faith, which is what he appears to have to done.   MilLaw
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4 December: In reply to MilLaw, I think that the act speaks for itself. A soldier may not be "entitled" to be discharged under the circumstances envisaged in section 13, but if he is actually discharged, where he has not misled anyone and where the error falls at the feet of the MoD, which is acted upon in good faith, I believe that it would be a breach of Natural Justice (akin to estoppel) if the MoD were allowed to withdraw the discharge. It might have been a different story if the mistake were detected prior to the soldier's last day of service, but it appears not to have been. Like both MilLaw and I say, he needs to speak to a solicitor and take all correspondence with him.   Anthony
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4 December: I take a different view to Anthony on the validity of the discharge. If the soldier was not entitled to be discharged, then surely any purported discharge is a nullity and, once he's told that, he is unlawfully absent if he doesn't return to his unit. I do agree, though, that the point may be academic if the indictable offence was committed overseas and is serious enough to invoke the attorney's power under section 132. I also agree that he needs to see a solicitor.   MilLaw
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Why not get in touch with Lewis Cherry?     Aspals
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2 December: Sorry it has taken a little while to get back to Jimmy.
In my view, the discharge was valid, as the alleged mistake was spotted after the effective date. Any challenge in court would more than likely require the giving of evidence by your friend of the circumstances of his discharge and the correspondence with MoD. So, if he is not willing to submit to the jurisdiction of the courts, it will be difficult to mount a legal challenge. His family are not affected parties and have no standing to present a case on his behalf, for example, an action for judicial review. In any event, without seeing the correspondence from the MoD it is not clear whether there is anything to actually review. On JR he would need to show that the MoD's decision was unlawful, or irrational (unreasonable) or a procedural irregularity/breach of natural justice, Your friend would also need to have deep pockets, as an action for JR is very expensive and would probably cost upward of £10,000. Alternatively, he could seek a High Court Declaration that the discharge is invalid. However, he would once more probably need to give evidence and the cost would be about the same as for JR. As he is the person affected, I would see him as the applicant, not his family members.
He, at present, seems to be a fugitive from justice, in the sense that he may be considered by MoD to be a deserter and therefore amenable to arrest by the army for that reason and/or that he is liable to be tried either by the military or civil authorities for an indictable offence. So, the best time for your friend to challenge the MoD's mistake is if/when he is apprehended. I would advise him to go and discuss his case with a solicitor where he can lay out the full facts, produce the relevant correspondence and provide any further information his legal representative requires. Good luck.  Anthony
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1 December: The question that Jimmy raises about is friend. I think he has a valid discharge. Jimmy doesn't say if the indictable offence was committed overseas, but I suspect it was and I also guess that it isn't so serious that they can get the attorney general to consent to prosecution, so they are trying to get him back into the army so they can do it. Am I right? Anyway, I agree with Anthony that he needs to speak to a lawyer about it.  Tess
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29 November: the law is an ass. no wonder theres no money for kit.   pete
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28 November: Anthony - thank you for your concise and learned opinion. I have reserched the information you have provided me with and applied it to the facts of the matter as I see them. I conclude that the liability of my friend to military law is dependent upon the following question:
Is a correctly authorised discharge valid if made by mistake during a period of non-entitlement?
Any thoughts on this question are appreciated. My friend is willing for any alleged offence to be heard before a civilian court as he considers it unlikely that a correctly instructed jury could find him anything but not guilty.
As both the Army and HO insist/confirm that the issuing of the discharge was 'a mistake', is there any legal way for his family to have the question answered in a civilian court. I ask this as it is not presently practical for my friend to stand trial in any court, military or otherwise.
Thank you once again.  Jimmy
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28 November;  It was wrong for those soldiers who victimised LCpl Fletcher to have done it, but paying out high compensation is not justified. I read today that someone on ARRSE was arguing that it is not the high level of compensation that is wrong, but the low level paid to soldiers. Squaddies are paid too little when they get injured but then again I do not agree that hurt feelings deserve £200,000. As for a career in the police, if they've got any sense they will find an excuse not to take her on. Then I suppose she will be back to the tribunals asking for more cash. Yet all the time our soldiers are facing real dangers and displaying great courage, only to be awarded compensation in a fraction of the sum she got. Wrong, wrong wrong.   Will
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28 November: lesbian soldiers getting paid out huge sums of cash for hurt feelings, even if she was bullied as she says, is not right and i don't care how anyone tries to justify it.   pete
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27 November: To reply to Jimmy's posting. The disclaimer applies. What follows is just guidance based upon the information provided and is no substitute for advice from a solicitor with whom the full facts can be discussed.
The matter of whether the discharge was legitimately authorised or not will only have any relevence to the question of the allegation of AWOL. If your friend reasonably believed he had been lawfully discharged, then he cannot be shown to be AWOL in my view, as up to when he was told, he had legitimately believed his absence was lawful. In any event, for an AWOL charge they look as if they are out of time. All the same, an unlawful absence of over a year looks more like desertion (see below). You don't tell us if the army is saying the discharge was wrong because he was liable to be retained in the army under section 13 of the Army Act, which allows the Service to postpone discharge when he has become liable, as a person subject to military law, to be proceeded against for an offence against any of the provisions of the Act (eg a section 70 offence). But, if he has been discharged before the army realised it had made this mistake, it seems to me that the discharge is valid. Subject to what I say later, in any event it does not prevent the Army from trying him for any offences he might have committed while still serving. The only difference is that a time limit then kicks in.
Take a look at Sections 131 and 132 of the Army Act 1955. Subject to section 132, "where an offence under this Act triable by court-martial has been committed, or is reasonably suspected of having been committed, by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation of charges, ... trial and punishment by court-martial ... as continuing subject to military law notwithstanding his ceasing at any time to be subject thereto." In other words, if a civilian criminal offence has been committed, he can be arrested, placed into custody and brought to trial by the military authorities.
But, if he has left the army, section 132 requires that the trial is begun within six months after he ceases to be subject to military law. However, you will see from sub section 3A that the time limit does not apply to the offence of desertion, nor does it apply to "an offence against section 70 where the civil offence is alleged to havebeen committed outside the United Kingdom and the Attorney General consents to the proceedings." This latter exception means that if the indictable offence was committed overseas, then the Attorney General can consent to the matter being tried in the UK and the 6 month time limit again doesn't apply. The attorney general is only asked to give his consent where serious offences have been committed. You should be aware that if the offence was committed in England, and it is an indictable offence, then there is generally no time limit on the civilian prosecutors in bringing your friend to trial.
You don't say what the indictable offence was, but if the the offence were murder or manslaughter, then he could be tried by the UK civil authorities under section 9 of the Offences Against the Person Act 1861. Time limits are irrelevant for this offence. (You may be also committing an offence of obstruction of justice by not notifying the authorities of his whereabouts).
In summary, the discharge looks valid. However, no time limit applies to desertion offences or offences of murder or manslaughter. Offences triable by courts-martial are subject to the 6 month time limit, unless they were committed overseas and the attorney general consents to trial. If the offence was committed in UK and it is indictable, then trial may still go ahead by the civil authorities.
He ought to go and see a solicitor who is knowledgeable in military law and the court-martial process and dicuss the facts more fully.
Hope that helps.   Anthony
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27 November: The Mail today was right to brand the payout to the lesbian soldier as obscene. She feels she deserved the money for her 4 years of hell. If she doesn't get into the police force (would you have her?) she is going to sue for another £200 grand. She and others who complain all the time about the way they are treated present a terrific argument to all those who argue that the army is no place for a woman.
Then of course for heterosexual women there is pregnancy leave. How can a unit operate well and cohesively if its members are at home having babies? Their absence only shifts the burden onto the shoulders of the rest of the unit. The more women in a unit the bigger the problem. They are seen as whingers. As a woman I am at a loss to understand what motivates other women to enter a man's world and then expect to be treated differently. My husband says the army is stuck with women as there aren't enough men available to recruit. If he's right, this doesn't look good for our services.  Briony
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Perhaps she will give some of her money to Help for Heroes. The Sun newspaper was equally scathing about the award to Ms Fletcher. In contrast, the Telegraph points out that, after complaining to the authorities Miss Fletcher was disciplined, had her mental stability questioned and was denied a transfer. Her car was vandalised, she was belittled at work and she received sinister phone calls.     Aspals
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26 November: Re Anthony's posting. The offence of Genocide has been updated and is now included in the Rome Statute of the ICC. Hope that helps. Apart from that, I agree with him that countries have to act within the UN Charter.  Tess
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Tess, I think you will find that the provisions in Article 6 of the the ICC Statute mirror those contained in article 2 of the Genocide Convention. But you are right to point out that there is a more recent point of reference. Thank you.    Aspals
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26 November: connect with the awol squady. i'm no lawyer but if your friend is awol for so long he is a deserter and the army can get him back and try him. i know cos we had a bloke that that in our unit and he was brought back after a couple of years.  pete
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26 November: Hello. I am hoping that someone reading this will be so kind as to offer their legal opinion regarding a friend of mine who is presently absent without leave.
My friend has discharge papers from the British Army dated 2007 and presumably correctly authorised. Both the Army and the Home Office have said that the discharge was issued by mistake and that as such he is still a serving soldier liable to military law (despite no longer being paid).
The Army want to try my friend by court-martial for both being absent without leave and an alleged indictable civilian offence.
I am of the understanding that a discharged soldier is no longer liable to military law and that there is no provision for 'voiding' a discharge made by mistake.
What legal action can be undertaken to force the Army/Home Office to concede that my friend is no longer liable to military law?
I appreciate your thoughts and am happy to provide further information/clarification.   Jimmy
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25 November: The lecture by Lord Bingham has reignited the debate over the legality of the war in Iraq and the legitimacy of the advice given by the then attorney general.
In support of Lord Bingham, Article 2 of the UN Charter provides that "4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll. "

The exceptions are the inherent right of individual or collective self-defence if an armed attack occurs against a Member (see Article 51) and the authority of the UN by virtue of a mandate under Chapter VII.

These are the only two bases in international law for the intervention in the internal affairs of another state. For these reasons, it is easy to see the strength of the criticisms against the Turkish invasion of Cyprus, of those forces attacking Serbia and Kosovo, of the invasion of Iraq and the recent invasions of Ossetia and Georgia. There is, however, the question whether the right to anticipatory self defence (based upon the Caroline principle) is also within article 51, or whether it is superseded by Article 51, or whether it is in any event part of customary international law . The Israelis certainly relied on the anticipatory self defence principle in 1967, during the 6 day war, when they destroyed the Egyptian airforce in a pre-emptive strike during the morning of 5th June. In all, over 300 aircraft were destroyed on the ground.

Turkey relied upon self defence of Turkish Cypriots, and being one of the guarantors of the island, to justify its invasion in 1974 and its subsequent occupation, ethnically cleansing the north of the island of Greek Cypriots and remaining in situ ever since (well after any perceived threat had evaporated).
In my view, the case in support of the attack on Iraq was different. It raised issues of (1) anticipatory self defence and the principle of (2) self defence under the Charter. The third basis for arguing a legitimate basis for the action was that UN Security Council Resolutions 678 (1990), 687 (1991) and 1441 (2002) had not been fully complied with. Putting the emotional arguments to one side of those who say the war is illegal, these three counter arguments I suggest are valid arguments. While advising that "a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution", the former Attorney General, in his advice to the Prime Minister (the one that was eventually published, that is) gave a fourth (his third option, the other two being self defence and UN authorisation) and exceptional, option namely, to avert a humanitarian disaster.
This latter basis is one that it is difficult, I suggest, to find any clear precedent for. Should there truly be such an overwhelming humanitarian disaster, surely that is the very sort of situation that would, dare I say it, relatively swiftly lead to a UN resolution. It would have to be a major catastrophe threatening world peace, otherwise the UN would be violating its own charter if it sanctioned any intrusion into the sovereign territory of one of its member states. Two of the purposes of the UN are, "To maintain international peace and security" (§1.1) and "To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character". But these purposes are confined to acting within the authority of the Charter and not taking unilateral action. So it is not clear that the aversion of "a humanitarian disaster" is a legitimate reason for unilateral action, even though there may be a strong moral argument.

So go the arguments one might raise in support of war. But we should also remember that we live in the real world and have to take into account the high intensity power politics that are played out in the Security Council, where countries like Russia and China are very ready to use their veto. That may raise the significance of the moral argument. If we take the letter of the law arguments to their logical conclusion, and bearing in mind the fallibilities of the UN SC, it would mean that nations should stand idly by in the event of inaction by the SC and watch another "final solution", with innocents being murdered in a widespread genocide. Can that be morally justifiable? I suggest not. The belief (mistaken as it turns out) that this was happening in Kosovo lent great moral authority to NATO's action there. It was an extension of the self defence argument, being applied to the defence of others. I concede that it is a very dangerous argument to use because, as we now know, the media hyped up the Kosovo genocide arguments thereby providing an erroneous basis for the NATO humanitarian operation. When nations go out on a limb and then are shown to have acted precipitously, it undermines the validity of the moral argument and reinforces the purist legal views espoused by Lord Bingham.

On balance, I agree that the letter of the law, that is, the UN Charter, should be observed and authority for military action should only ever emanate from the United Nations. Exceptionally, humanitarian intervention without such an authority should only ever be justified (a) where it presents an overwhelming danger to world peace or where genocide is being carried out (as defined by the Genocide Convention of 1948) and, as a result, there is a plausible argument that (b) there is a pressing need to act in immediate self defence of others and (c) that the UN Security Council is unable to act swiftly enough. Any such action by member States must cease as swiftly as possible and should be reported to the UN without delay, with States involved in these interventionist measures acceding to the authority to the UN. There should be no direct attempts at what is called "regime change" without the clearest of UN mandates. Lord Goldsmith's above cited advice conceded that The use of force to avert overwhelming humanitarian catastrophe has been emerging as a further, and exceptional, basis for the use of force. It was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The doctrine remains controversial, however. I know of no reason why it would be an appropriate basis for action in present circumstances. Bearing in mind the question mark over the Kosovo intervention, one can appreciate how shaky this "humanitarian" argument is.
What do others think?   Anthony
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13 November: The BBC website has published a list of the UK fatalities in Afghanistan and Iraq, showing the number of UK troops killed on operations there since 2001 and how they died.   Anthony
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11 November: ref will's point. this lot lie so much that they dont know where the truth is anymore.  pete
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7 November;  Who does Des Browne think he's kidding in his Hansard report? If the Treasury was fronting up the cash why did they threaten not to a little while ago and tell the MOD there would be no extra funding for armoured vehicles?    Will
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7 November: Re the Nimrod fuel leaks. It does essentially come down to making hard choices when engaged in operations. You either stop using the equipment, which means the mission is thwarted, or you use it and try and minimise the known dangers, but you get the mission accomplished even though there is a risk element. Any military commander would take the latter option while trying to get better kit from the government. By the way, I do not and never have worked directly for Des Browne. MOD operates within its budget constraints. It cant spend money it doesn't have unless it uses some very creative accountancy, but audit rules are quite hard on that.  Pegasus   
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6 November:  Pegasus, did you work for Des Browne? It sounds like he promised a lot but, guess what, delivered little. No surprises there then.    Will
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The delay in replacing "Snatch Rovers" is regrettable. That is an MoD responsibility, I suggest. In the case of the crashed Nimrod, the RAF knew about the fuel leaks on these aircraft, as there had been reports known to the chain of command since at least December 2005. Is it any wonder that the father of one of the deceased felt "that a fuel leak caused the crash and the Service was fully aware of the risk months beforehand. I believe the RAF killed my son. " At least MoD accepted liability for the tragedy which cost the lives of 14 of our servicemen.    Aspals
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6 November: i bet £2.4 million will go a lot further in kosovo than it would over here.  Pete
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6 November: Can I contribute to the discussion about funding or rather under funding. I hope I can help persuade everyone that the situation is not as negative as believed here. In October last year Gordon Brown announced a further 140 Mastiffs , 157 new Cougar 4x4 variants, named Ridgback, and 401 Panther were being ordered to protect troops from mines and roadside bombs. A £60million contract to deliver the new generation of Mastiff vehicles - the Mastiff 2 - was announced by Des Browne on a visit to NP Aerospace on 8 September 2008. Des Browne (Hansard) explained to Parliament that he had "never been refused any request that I have made to the Treasury for urgent operational requirements, and I do not expect that I ever will be." I hope the supplied links all work.  Pegasus   Thank you. They do.   Aspals  
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6 November: Mr Brown, his government and the minions within the MoD and Treasury need to take note of court decisions, such as the Smith case. Today we read that a Kosovan is paid £2.4 million by MoD for being shot through the jaw by a soldier. They seek to justify the £570,000 limit on compensation payments to our servicemen by saying that they receive an additional tax free service pension for life of between £15,000 and £20,000, as if that is in some way equivalent. They forget that our servicemen sustain their injuries in the course of serving the government's foreign policy objectives. How they worked out Mr Bici's entitlement to so vast a sum is puzzling, bearing in mind the Mail reported that if a "British soldier suffered a similar wound to Mr Bici's, the MoD's Armed Forces Compensation Scheme would pay them just £11,000 under strict tariffs." This is the same MoD that would not listen to pleas from senior servicemen begging for better equipment to protect the lives of their soldiers. £2.4 million would buy about 10 of the RG-31 All-steel armoured vehicles. The result of that indifference is that 30 servicemen have died: killed in Snatch landrover incidents.This government is morally bankrupt and does not deserve the high quality servicemen it has.  Anthony
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5 November: Does Mil Law mean that the army wanted to escape liability for killing and maiming its troops when training went wrong or when measures were used which were plainly negligent?  Tess
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3 November; Anthony, do you really think this government wants to make itself accountable? Gordon Broon keeps saying he's listening, but never takes a bit of notice. Perhaps he's deaf.    Top Cat
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3 November: Re the Corporate Manslaughter and Corporate Homicide Act 2007, the army and MOD were very keen to remove any possibility of liability, especially for combat ops and preparation for combat ops, which I think is quite right. Leaving liability in would have been unworkable and would have seriously afected our ability to train realistically for war.  MilLaw
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3 November: Anthony hit the nail on the head again. It's rather pathetic that the government and MOD keep denying that they behaved in a pretty cavalier way towards our soldiers. I don't know what part the Treasury plays in events other than to say how much money will be given to the armed forces, but the MOD looks like the organisation that has direct responsibility for spending money allocated to it.
I agree that the government seems happy enough to spend huge sums of money on non life threatening causes and doesn't give the armed forces the priority they deserve. It's a great shame that there's no legal criminal liability for failures to act which place soldiers lives in danger when those dangers are forseeable. Looks like the Corporate Manslaughter Act is very narrow in its scope.  Toby
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2 November: The criticisms by the SAS officer reported in the media directly refute MoD statements that the equipment provided to our servicemen is plentiful and top quality. It clearly isn't and this lamentable state of affairs is costing lives. The regrettable response from Quentin Davies hardly merits comment here. Anyone reading the newspapers is aware of the concerns expressed by various coroners on the theme of the rueful state of military equipment. The Snatch Landrover problem, we are told, is finally being addressed, but why has it taken so long when the dangers were obvious and lives were being lost? Aircraft mid-air refuelling problems have been apparently known about since Nimrod first entered service. According to the Oxford Coroner's findings, Nimrod had œnever been airworthy from the first time it was released to service nearly four decades ago.
Yet another problem has arisen with SA-80, a weapon many soldiers who served in the 80s will know from their days in Northern Ireland, often had a mind of its own when it came to discharging rounds unexpectedly.
That these dangers existed and were blindingly obvious even to the most unmilitary member of society makes one wonder which planet the mandarins of MoD and the Treasury inhabit. Enough comment has been made in the media and on Aspals and Army Rumours (arrse) about it. There is no question that ignoring these obvious dangers does place our servicemen in grave danger. Not preventing this, when there is the power to do so, is a breach of the duty of care owed to them by Government (and civil servants). Not doing this when lives are lost as a result and ignoring protests or concerns voiced is grossly negligent (ie criminal). After all, soldiers do not decide upon going to war. Governments do. Penny pinching in these circumstances is unacceptable, especially when the Government seems to react with alacrity to provide help to others by way of aid payments or to alleviate the plight of negligent bankers and front up billions to shore up the practices of greed and exploitation that have set the nation on the edge of financial ruin. If officials responsible for inhibiting or preventing necessary equipment getting to our military do not have the decency to resign, they should be sacked. There should be no question that the protection of our troops is the top priority.
Sadly, the Corporate Manslaughter and Corporate Homicide Act 2007 is pretty useless at bringing departments to book in respect of the way their decisions affect the lives of our soldiers. The exemption given to the military, under section 4 of the Act, makes prosecution of the military unlikely. This is a significant departure from the early drafts of the bill. However, Her Majesty's Treasury is listed in Schedule 1, along with the Ministry of Defence. It is difficult to see how the operational get out applies to them. But, unfortunately, the way the section is drafted (section 2), the new offence only applies in circumstances where the Treasury, "an organisation", owes a duty of care to the victim under the law of negligence. The duty is only applicable
  1. in respect of its employees or to other persons working for "the organisation", ie the Treasury
  2. as occupier of premises
  3. when the Treasury ("the organisation") is supplying goods or services
  4. when constructing or maintaining buildings, infrastructure or vehicles etc or when using plant or vehicles etc
  5. when carrying out other activities on a commercial basis, and
  6. in relation to the duty that is owed because a person is being held in detention or custody
  7. .
Looking at those limited circumstances, it is hard to see how there is a nexus with the poor old squaddy on the ground who is affected by the decisions of Treasury officials (unless it could be argued that they supply services to the military in respect of financial allocations). Similarly, for there to be individual liability for manslaughter, there has to be a clear nexus between the individual making the decision (the duty of care), the establishment of gross (ie criminal) negligence and the resultant loss of life flowing from it - very difficult when the effects of the civil servant's decision is filtered through the MoD. Which inexorably means that the departmental civil servants can do what they like without any fear of falling foul of the 2007 Act, no matter how many people might die or be seriously injured as a result of their decisions. While the European Convention on Human Rights will bring the government to book for its disdainful treatment of its military, applications under article 2 of course usually mean that there has been a death first. Applying the civil law standard, the risks to servicemen are clearly foreseeable and therefore underfunding which exacerbates those existing or foreseeable risks would give rise to civil liability. But that is not, in my opinion, good enough when it has led to a person's death or serious injury. The law should provide for criminal liability, at least against the department responsible for the policy decision. The message I would like to give to government is: Stop playing with the lives of our servicemen.  Anthony
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22 October: The eagle eyed Aspals news reader will not have failed to read the news item about the Iraqi government desire for Iraqi courts to exercise jurisdiction over US troops for serious crimes. Some might think this to be a good idea as Iraq is after all an independent sovereign state. But jurisdictional arrangements are common among NATO countries, as we operate under the NATO Status of Forces Agreement, article VII of which relates to jurisdictional arrangements for offences committed by servicemen.
In summary, each state has the exclusive right of jurisdiction to prosecute
  • offences, including offences relating to its security, punishable by its law, but not by the law of the other State
Where the right to exercise jurisdiction is concurrent the military authorities of the sending State shall have the primary right to exercise jurisdiction for
  • offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent
  • offences arising out of any act or omission done in the performance of official duty.
In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.

Within NATO, the exercise of jurisdiction by the sending state is therefore limited to the circumstances provided for in article VII, which I have broadly summarised above. There may be arguments over what "offences arising out of any act or omission done in the performance of official duty" means, but this is generally understood to mean while in uniform and engaged on official duties (including travelling to and from those duties, although this is not always agreed). The soldier who steps outside those boundaries is the one who might find himself at the mercy of a receiving state court.

Outside of NATO, SOFAs make express provision for jurisdiction. The reasons for trying to retain jurisdiction over a nation's own soldiers make good common sense: soldiers are dealt with by their domestic enacted laws governing investigation, pre-trial rights and trial procedures, with any court proceedings conducted in their own language, being able to engage and easily instruct their counsel and, if found guilty, to serve their sentence in a prison in their home country, with all appeal rights open to them. There is protection under the rule of law. Subjecting soldiers to the possibility of trial for alleged offences before courts with different systems of justice, poor records of adherence to human rights etc is not conducive to recruitment or maintaining morale. It is also likely to cause problems back home when commanders and politicians have to account to an irate public that perceives their soldiers have not been given the protections they would otherwise have had.

The Iraqis are not members of NATO. However, in my experience, Status of Forces Agreements (SOFAs) with non-NATO countries do tend to contain jurisdictional provisions at least as good as those found in the NATO SOFA, for the reasons explained. Assuming that the US agrees a SOFA with Iraq along these lines, US forces accused of committing offences whilst on duty should still have the protection of their own system of justice. As the likelihood of US soldiers socialising in civilian clothes in a disco in down-town Bagdad is a remote one, the chances of being prosecuted in local courts for serious crimes committed in such circumstance is also remote, in my view. Soldiers tend to be regarded as on duty most of the time they are in Iraq, anyway.

It will be interesting to see what the US agrees with the Iraqis. My advice (offered very deferentially to our US allies) is to stand resolute on the question of jurisdiction over their soldiers and not concede anything beyond the parameters of article VII of NATO SOFA.  Anthony
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22 October; The verdict of unlawful killing of the 10 servicemen was an interesting outcome to the investigation by the coroner into this terrible and tragic loss of life. The reported analysis of the evidence gives serious cause for concern over the attitude of the RAF higher command, who failed to provide the necessary explosion suppressant foam. The familes will perhaps consider legal action for what looks like clear negligence.
As a second point, I didn't quite understand how the coroner could make the finding of unlawful killing when we were at war and we are told that killing the enemy is lawful when done in war. Presumably the opposite is also right, that being killed by the enemy is not a crime under international law.    Top Cat
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16 October;  And if immunity means although they can't be prosecuted they can still be AGAId, then who is going to say anything to endanger their career?    Will
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15 October: Im pleased to hear that things are at last moving on the inquiry. Immunity for military witnesses from prosecution probably means the army could not kick anyone out under AGAIs either. Immunity is a great idea but what happens if one or more of the squaddy witnesses gives evidence of a crime and his part in it. If immunity extends to preventing prosecution and AGAI, the Army will have in its midst self confessed prisoner abusers who they can't get rid of. What a farce and what a stain on the army. I agree with Conan that its funny no one else has been prosecuted. May be there isnt the evidence to support more prosecutions. Makes you wonder how the judge came to the view he did though.  Thinners
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15 October;  I think a lot of people will breath a sigh of relief when the Mousa case inquiry gets underway nextyear. Immunity from prosecution, limited though it is in its scope may be a clever way to get people to tell the truth, the whole truth and nothing but the truth, but it may not. After all, for those still serving, admitting they lied on oath would still open them up to AGAI action. How could the army have serving in its ranks anyone who by his own mouth was implicated in the disgraceful events that took place in QLR lines. It is also interesting that in spite of the trial judge's view that others should have been on trial, no one else has ever been tried for what took place.    Conan the barbarian
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9 October: The Tri Service Act was an ambitious piece of legislation which is good in parts and bad in others. The good bits relate to the complaints procedures and certain improvements to the court-martial process (although the abolition of DCM and GCM, and then making provision for 3 and 5 man courts is bizarre and unnecessary). The bad bits relate to "harmonising" the disciplinary systems. The three disciplinary systems developed to suit the single Service disciplinary needs of each Service. The 2006 Act supposes that these needs have now changed so that they are the same for each Service. It was argued by the Navy, RAF and, of course, the MoD that with the growth of jointery, ie mixed Service units, there should be one disciplinary system, so that servicemen of whatever Service serving in that unit could be dealt with. That is a superficially attractive argument. It lacks substance though for a number of reasons.
  1. Unless the intention is that there should be an amalgamation of the three Services into one, combined, defence force, the single Services will remain the main authority for the disciplining of their own personnel. So the single Service ethos and culture will remain - and quite right too.
  2. The Attachment Regulations already provided for servicemen from different Services who are attached to eg a unit under Army command, to be dealt with under the disciplinary code attaching to that CO (in the present example, the Army Act). The RAF in particular were unhappy with this, because Army COs used their formal disciplinary powers more frequently than their air force counterparts. The practice in the air force was to use administrative powers rather than disciplinary. In contrast, the army did not like the RAF approach too much as it deprived the individual of even the semblance of a hearing (with the concomitant appeal to the Summary Appeal Court).
  3. Even though the Attachment Regulations provided as mentioned, the convention was that any serviceman to be disciplined would be dealt with by his own Service. So, in the example given, the airman would have an air force CO appointed to deal with him. This practice gave rise to real problems when there were personnel from more than one service involved in a disciplinary matter. But it was a policy matter rather than a legal requirement and had nothing to do with the fact there were separate disciplinary systems.
It will be interesting to see, if the disciplinary provisions of the 2006 Act ever get off the ground, whether this culture will change, so that the airman will be dealt with by his army or navy CO without being re-claimed by the air force. The simple fact remains that there was no need for a TSA to solve this particular "problem", but I was present at meetings with the Army policy people when it was quite clear that even they didn't understand the regulations that already applied to their own soldiers and, what was even more disappointing, even after it had been explained to them they did not believe it! That was a demonstration to me of either how little they knew of their own disciplinary procedures, or that the Tri Service provisions were politically driven, or both.
I encountered a lot of this type of attitude. I remember at the time thinking how foolish it was that the Services were hell bent on clinging to the non-ECHR compliant process of summary dealing, yet were only too ready to ditch the compliant court-martial process for a new, untested, model. At the behest of the navy, MOD then went the additional mile by making an already precarious summary process even more precarious by extending the powers of the non-compliant CO so that he could deal with more serious offences (eg ABH). Now I would like to hear someone argue before the ECtHR that this new summary process is compliant.  Anthony
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The Written Ministerial Statement for Tuesday, 7 October 2008 acknowledges the complexity of the task in hand and says, "We do, however, plan to maintain momentum by making the necessary legislative changes to enable the director of service prosecutions, created under the Armed Forces Act 2006, to prosecute all cases under the existing Service Discipline Acts from 1 January 2009. We will bring before Parliament in the autumn the necessary secondary legislation to achieve this."     Aspals
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8 October: looks like the yanks are fed up with our ability to help them and fight effectively as a result of the human rights restrictions on our soldiers. Scrap this law for soldiers. pete
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8 October: I'd share a trench with a pretty female soldier, nudge, nudge, wink wink. Tuppy
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7 October: Now the Brigadier lawyer has said that women should be allowed to do combat, i sense the MOD will go along with it just to prevent any claims for millions being paid out to women who think they're Rambo. That would be a scandal, eh, for one of them to be paid out more in compensation for not being allowed to fight, than a soldier recieves whos been seriously injured in combat.  No Duff
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7 October: the infantrys no place for a woman soldier and its time all the political correctness was put to an end. theres no place for it in the army. we want an army thats capable of fighting effectively and destroying the enemy or at least we did when i served. it sounds like army lawyers want to do more damage to our fighting forces. pete
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In fairness, we have not seen the letter written so do not know the context. Journalists are notorious at quoting out of context. I doubt that the author was advising in blanket terms. It appears we have a good argument to resist any claims by disgruntled females. But perhaps we should wait until we see the leaked document in full before castigating the poor lawyer.    Aspals
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7 October: Re it appears dead in the water, what is the newly appointed tri service civilian prosecutor to do, if there's no tri service legal system in place? Is this more public money being wasted? Sounds like another typical Mod botch up.
As for women in combat units, I am in favour. They can do the majority of jobs that men can do. Where I agree that they should be restricted is in any outfit that requires hand to hand fighting. Most women do lack the strength of male soldiers, although I can think of one or two exceptions.  Tess
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6 October: The Tanja Kreil decision was hardly surprising, as the ban on women in the German army was quite extensive. As for the Sirdar decision, this was much more interesting, in my view, as she was already working as a chef with a commando regiment of the Royal Artillery when she received her redundancy and applied for the Marines, who accepted her until they realised she was a woman. She was then discriminated against.
Member states are required to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. A literal interpretation of this meant that all military jobs were open to women, too.
But the court did recognise that there could be exceptional circumstances and that sex may be a determining factor. It went on to rule that "A Member State may restrict such activities and the relevant professional training to men or to women, as appropriate."
The court quite clearly held that "exclusion of women from service in special combat units such as the Royal Marines may be justified under Article 2(2) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, by reason of the nature of the activities in question and the context in which they are carried out." [See also, Amsterdam Treaty, article 297].
Fighting in highly mobile infantry or special forces units, which rely on physical strength to carry significant weights over considerable distances and then be fit to engage in close combat, might properly be viewed as a special case justifying the exclusion of women. That is not discrimination but sound and proportionate military thinking to ensure combat effectiveness. It is all about of course defeating the enemy by the best available means.
I hope the Army Board does not drop into panic mode over this and fights any challenges which might be made. Anthony
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3 October: I see from your news- mill legal that certain sections of the armed forces act 2006 have come into force, when is it anticipated that the remaining parts of the act (in particular part 1 discipline - part13 miscellaneous and supplemary) come into force?The judge
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According to the MoD document, An Overview of the Military Criminal Justice System and the Armed Forces Act 2008, "subject to Parliamentary approval it is planned to bring the Armed Forces Act into full effect by the end of 2008." Updated, 5th Oct:  A well-informed contributor has said that the "rumour" is that the ministerial decision was to have been given a few weeks ago, but it is not clear if it happened. In any event, the subordinate legislation has not been prepared (latest estimate is Aug 2009), and the training has not occurred. Interested parties are still waiting to hear officially but it appears dead in the water. (Paraphrased)    Aspals
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3 October: I agree with Pete about the Ghurkhas, but I'm really surprised that no one has commented on the story of the Army law officer who advised the army board that the army was facing the possibility of challenge over its policy of not allowing women into front line combat roles. He must be right about it and I don't understand what defence there is. Women are just as capable as men.Tess
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I have updated the cases page with the ECJ decision in the application of Tanja Kreil, and have refreshed the link to Sirdar. Of course, we do not know the detailed contents of the paper submitted. While the blanket discrimination employed in the Tanja Kreil case was found unacceptable, the court did agree certain limitations in the Sirdar case, which accorded with common sense "by reason of the nature of the activities in question and the context in which they are carried out". As a result, have we not seen more roles open up to women? It would clearly be useful to see the written advice Brig McEvoy gave to determine the proper context.
I ought to add that I was serving in Germany at the time and recall that the decision in the Kreil case was not greeted with universal approval by German female service personnel. The majority felt that she had not done them any favours!     Aspals
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1 October: brilliant news about the ghurkhas. pete
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I agree wholeheartedly. It was an unanswerably just cause and, at last, has been recognised as such by the High Court.     Aspals
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13 September: Legal Representatives and rights of audience.
The Courts-Martial Rules for all services were amended wef 1 Jan 08 which stated that the:
œlegal representative means a person appointed to represent an accused at a formal preliminary examination and at any proceedings before a court-martial, providing he is"
    (i) a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990([1]);
    (ii) an advocate or a solicitor in Scotland;
    (iii) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland; or
    (iv) a person having in any of the Channel Islands, the Isle of Man, a Commonwealth country or British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and subject to punishment or disability for breach of professional rules;
The footnote to para (i) can be found here: Access to Justice Act 1990
The restriction is only for those who practice only in England & Wales. Those of us from further afield in the empire and commonwealth have an automatic right, mine being in part (iii) ! ;-)
Baha Mousa Public Inquiry
The Secretary of State specified 1 Aug 08 as the setting-up date of the Inquiry for the purposes of the Act. Senior and Junior counsel to the Inquiry have been appointed. There is a provisional date for a Preliminary Hearing next month. Initial letters went out about 3 weeks ago and legal meetings have commenced to attempt to resolve representation issues etc as there are various conflict of interest issues identified. There are various types of individuals as well as the MOD who are likely to be affected by the Inquiry, and they will be grouped into categories of œcore participants.   Lewis Cherry
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Thanks Lewis for helping with these two points.    Aspals
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9 September: Following what Joshua Rosenberg says about the rules applicable, I ask whether Lord Justice Gage's inquiry will be regarded as satisfying article 2.Tess
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8 September: Reference the higher rights question, Aspals is right that solicitors don't need it to appear at CMs although in my experience most have them.  MilLaw
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8 September: Is there any news of when the Mousa inquiry will take place. It seems to have gone very quiet.  Thinners
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Lord Justice Gage has been appointed by MoD to chair the inquiry, but I have not heard of a date for it. You might want to read a very interesting - and slightly sceptical - article by that excellent legal journalist, Joshua Rozenberg, writing in the Telegraph, when he suggests that the Baha Mousa public inquiry means little. He points out that the notion of an independent judicial inquiry has been killed off by the Inquiries Act 2005, because "[a]n inquiry can now be closed down at any time by the minister who set it up. He can restrict public access to an inquiry if this would incur additional cost. It can be suspended pending investigation of other matters to which the inquiry relates. The inquiry must not go outside its terms of reference, which can be amended by the minister at any time. If it does, the minister can cut off its funding. Its members can be sacked for failing to comply with their duties under the Act " which include not incurring any unnecessary cost." I can see what he's getting at.
He also makes the telling point that it is doubtful that the court martial of the 7 QLR/Int soldiers and officers charged with various offences connected with the mistreatment of Iraqi prisoners satisfied the Government's procedural obligation œto initiate an effective public investigation by an independent public body into breaches of article 2, which protects the right to life. "Since the court martial never reached the stage of hearing and testing defence evidence, it is hard to argue that it did satisfy this obligation."
For a US Attorney's perspective, take a look at Iraq £3m deal ends a fight for justice.    Aspals
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7 September: After some research I hope to be able to provide some thoughts on Andrew's teaser.
The Access to Justice Act 1999 provides for solicitors to have rights of audience in all courts, subject to training requirements laid down by the Law Society (the Higher Courts Qualification Regulations 2000 - see §14).
According to the Solicitor's Code of Conduct, Guidance to rule 11 " Litigation and advocacy:
General
1. If you are a solicitor you are entitled to conduct litigation in any court. You are also entitled to exercise any right of audience which solicitors had immediately before 7 December 1989, provided that your exercise of that right is in compliance with these rules. You are entitled to exercise additional rights of audience in the higher courts if you have obtained a relevant higher courts advocacy qualification under the Higher Courts Qualification Regulations 2000.
The explanantory notes to the Access to Justice Act 1999 state:
151. Rights to appear as an advocate in court (rights of audience) and rights to do the work involved in preparing cases for court (rights to conduct litigation) are governed by the Courts and Legal Services Act 1990. The 1990 Act leaves it to 'authorised bodies' (currently the Bar Council, the Law Society and the Institute of Legal Executives) to set the rules which govern the rights of their members, subject to a statutory approval process under which new or altered rules must be submitted for the approval of the Lord Chancellor and the four 'designated judges' (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor). Before making their decisions the Lord Chancellor and designated judges receive and consider the advice of the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) and of the Director General of Fair Trading. The Lord Chancellor and each of the designated judges must approve the application before it can succeed. Applications for designation as a new authorised body follow a similar procedure, with the additional requirement that the designation of the new body is made by Order in Council subject to Parliamentary approval.
152. The Government believes that the existing approval procedures are convoluted and slow, and that rights of audience are currently too restrictive. Some applications for approval have taken several years to be processed, in part due to the need for applications to meet the approval of several parties. Rights of audience in the higher courts (the House of Lords, Court of Appeal, High Court and Crown Court) remain restricted to barristers in private practice and a small number of solicitor advocates. (My emphasis).

The requirement for Higher Rights only applies to "higher courts". The key is what constitutes "higher courts". It seems to me that The Access to Justice Act 1999 provisions (coupled with the helpful explanantory notes) clearly have in mind the non-summary courts within the England & Wales civilian court structure which omits any reference to the separate military systems which are sui generis. Consequently, it is my view that there is no requirement to hold the Higher Rights accreditation in order to appear before a court-martial, whether District or General. If you are still in doubt, I would suggest that the easiest way to resolve this is to specifically ask the Law Society as the relevant Regulatory body.
As a point of interest, higher rights was a matter raised by a previous Vice-Judge Advocate General, in contemplation of the 2006 Armed Forces Act. As far as I am aware, it was never pursued. Anthony
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4 September: Re Will's remarks on Kosovo. I agree with him that the west's illegal recognition of Kosovo gave the Russians the excuse to do what they did, but it also shows that international law is really ineffective in preventing illegal action by large states and that fine though the principles are when it comes to real life scenarios they make it up as they go along to suit themselves.  Brian
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4 September: Slight query in relation to rights of audience before a DCM. r.15(5) CM(RAF)rules 1997 state that a legal advisor is a person with a general qualification within the meaning of s.71 Courts and Legal Services Act 1990. i.e a Solicitor of the Superem Court. These rules have been amended by r.53 CM(RAF)rules 2007. There does not appear to be a clear footnote as to the meaning of legal advisor in this version of the rule. Therefore,is it right that a solicitor without higher rights can appear before a DCM? Or is it the case that the legal advisor has to have higher rights and/or be Counsel.   Andrew
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3 September: I wish Susan every success in her claim against MOD. The failure to supply proper kit to protect soldiers against dangers known to our soldiers is disgraceful.Tess
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1 September;  (sent 20 August). The west (including the UK) has no one else to blame than itself for what the Russians are doing. After all, they gave them the precedent by recognising Kosovo. The Russians are using the same arguments on South Ossetia.    Will
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1 September: (sent 18 August). I wanted to send you a copy of a press release from today regarding my sons death - you might want to post it on your news section? It is copied below:-
Today Susan Smith served her High Court claim on the Ministry of Defence. The claim arises out of the death of her son Phillip Hewett on 16 July 2005 whilst he was travelling in a Snatch Land Rover on patrol in the Al Amarah region of Iraq.
The inquest into his death, which took place on 30 January 2007, lasted only a few hours and the coroner did not look at Mrs Smith's wider concerns about Snatch and in particular whether they should be used at all in the dangerous conditions being faced by soldiers in Iraq and Afghanistan.
Snatch land rovers are lightly armoured and designed to provide no more than limited protection against ballistic threats mainly small arms bullets. They provide little or no protection against improvised explosive devices (IEDs).
Susan Smith has campaigned tirelessly, along with others, to bring these safety concerns to the public attention and to try and persuade the government to stop sending soldiers out in Snatch land rovers. She met with Des Browne, Secretary of State for Defence in December to air her concerns. Unfortunately deaths are still occurring in these vehicles.
The Particulars of Claim identify various failings, including the unacceptable delay in providing the army with medium-armoured vehicles to carry out patrolling duties and the failure of the MoD to recognise that Snatch were unsuitable for the extremely dangerous conditions in Iraq despite overwhelming evidence that this was the case.
A large proportion of British deaths in Iraq and Afghanistan have occurred in Snatch land rovers. Hodge Jones & Allen solicitors are advising several other families who are considering legal action as well. It is thought that this claim is the first to raise the wider issues of the safety of Snatch.
The claim is brought under article 2 of the Human Rights Act 1998 (the MoD failed to avoid a real and immediate risk to life which it had or ought to have had knowledge of) and in negligence. The case relies on the High Court ruling in April (Catherine Smith v. HM Assistant Deputy Coroner for Oxfordshire) that soldiers deployed abroad retain the protections of the HRA.
For further information please contact Susan Smith (smithsusan@btinternet.com) or her solicitor Jocelyn Cockburn of Hodge Jones & Allen solicitors (jcockburn@hodgejonesallen.co.uk or 020 7874 8452) Susan Smith
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Susan, thank you for contacting us. I regret taking so long to post this contribution. I wish you the best of luck on your action. The sentiments of contributors (eg below and here and here) on this Sounding Board support you. You seem to have a strong case.     Aspals
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12 August: the speed which the russians sent their forces in shows that they prepared for this well before they went in. they were just waiting for the excuse. nato shuld have stood up to them instead of ratting on an ally. pete
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11 August: Today's Times has a useful article on the background to the conflict http://www.timesonline.co.uk/tol/news/world/europe/article4498709.ece".    Will
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11 August: Anthony refers to Mr Puting as playing a dangerous game, which I agree with. Of course, it is Putin who is still running Russia not the new President. Russian moves to "protect" the Ossetians are hard to swallow.    Will
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A bit like the justification used by the Turks in 1974 when they invaded north Cyprus with 30,000 troops and ethnically cleansed Greek Cypriots from their homes and lands. All done under the banner of protecting the Turkish minority from a two-penny halfpenny opportunist, Nikos Samson, who was actually unpopular with the majority of Greek Cypriots and wouldn't have lasted long any way. 34 years later, and in spite of any palpable threat from the Greek Cypriots, Turkish troops are still there and Greek Cypriot land is sold to foreigners for holiday homes, trading on the misery of those who are are the rightful owners. The world has stood by and watched those in unlawful occupation get away with it. Only the European Court of Human Rights has stood up and consistently upheld the rights of deprived landowners. But, without any political resolution to the problem, the deprivation goes on and the greed of Turkish speculators and foreign buyers goes on. Yes, as Tess said, politics is a dirty business.     Aspals
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