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Question/Comment
23 December: civvies dont undertsand the military. this lot of wimps in goverment are clueless like the last lst. they will hand the court msrtials over to civvvies in the end. they started with the bloke running the prosecution. he didnt serve either. its a slippery slope. their destroying the services. it makes you sick.    pete 
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20 December: Replying to Tess, the trial of Cpl Payne and the other QLR was a largley civilian affair as the judge and all counsel were civvies. Someone described it as the Old Bailey sitting in Bulford. Doesn't sound that chummy to me.    Scipio  
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13 December: I've just seen Goldie's message. I'm not sure I follow what he says. Firstly he says that he welcomes the continued civilianisation and independence being introduced by successive Armed Forces Acts, but then says we should leave the Court-Martial system alone. If he welcomes civilianisation, which I do too, then it must follow that the court-martial system cannot be left alone. With that I would agree too.
Just to comment on the experience of mags advocacy, I agree that arguing cases before lay justices is very unpredictable but that's not the case in front of a DJ. Trials are quicker, proper rules of evidence and procedure are followed and the result is generally very fair even when it goes against your client. Most important is that the DJs are not part of the same club as the defendant because if that is the case they would have to recuse themselves. In military trials it's a requirement that the jury is part of the club.
The Gage inquiry into Baha Mousa shows that the court martial trial reinforces the criticisms of the system. [Ed: I have omitted the last sentence as it refers to matters currently under consideration by the PA].    Tess 
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10 December: spot on goldie.   pete 
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9 December: I write to respond to the post of Tess from 8 December. "It's hardly an impartial tribunal when you've got the defendant, prosecutor and defence lawyer sharing the same club tie as the jury" I recently attend a Military Court centre to represent a serviceman, I do not share the same club tie as the Prosecution, members of the board or the Defendant, nor did the Civilian Counsel instructed by his client in the case listed before me. Whilst I have criticised the Court-Martial system in the past and Military investigations, the continued civilianisation and independance being introduced by successive Armed Forces Act's is welcome. I was defending an RAF airman, the prosecutor from the Army, came from SPA, led by a civilian QC, a very positive and welcome move. I note from the recenlty enacted Armed Forces Act 2011 that, when in force, the Service Police will be more independant (s.3 amending s.115 AFA 2006) and of course accountable to HM inspectorate of constabularies(s.4 amending s.321 AFA 2006) Such reports being laid before Parliament. All these factors add to a fairer and more transparent process. As a practicing lawyer, i find that the whole Court-Martial system has changed dramatically from the days of Findley etc.
No court system is perfect, spend a day at the Magistrates' Court and you'll soon find that out. The call for disbanding the Military Court service/Court-Martial system and Military justice, seems to grow stronger in difficult financial times, espcially when organisation are flexing muscles in an attempt to take on more work with the end effect of a larger budget for themselves. There i go being all political. Leave the Court-Martial system alone and go and complain/moan/pontificate, whatever you want to call it, about something else. After all there is plebty to moan about if you just look    Goldie 
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8 December: Be done with the military system. I can't see it surviving the latest round of inquiries. The public has lost confidence in the ability of the military to deliver justice. It's hardly an impartial tribunal when you've got the defendant, prosecutor and defence lawyer sharing the same club tie as the jury. Putting a civilian in charge is a smart move, but it is papering over the cracks.    Tess 
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7 December: doyou mean a paper printed lies that makes a change.    pete 
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Pete, I presume this relates to my remarks about the Guardian article mentioned by Tess. Strangely enough, I had always regarded the Guardian as the most reliable of those newspapers reporting on the military. Certainly, in its reports on the Baha Musa case, it was bereft of the hyperbole, personality cult and bias of some of its competitors who, when finally shown to be wrong, by the report of Lord Justice Gage, failed to have the good grace to admit it. I wrote to the Guardian newspaper following their report on Friday to ask them, as a matter of fairness and balance, to publish an article I wrote for them setting out the background and showing that the criticisms were ill founded. They have not done so, nor published a letter I wrote disputing their account.
In fact, as anyone serving in the policy branches of the three services knows, the idea of creating a tri-service PA was on the table before Baha Musa came along. Indeed, the idea of a combined (tri-service) legal branch had been (and probably still is being) discussed fairly regularly, on and off. The final move to tri-service prosecutions was given a push by the Labour government. I am also clear that there were senior army officers and others who were very antipathetic to the independence of the APA and sought to insist upon its subservience to the chain of command, something the then Attorney General was aware of, which I resisted when such attempts were directed at me (perhaps that was why the head of the SPA is a civilian rather than, as desired by the 3 Services, a Service lawyer - it is a better guarantee of independence from interference). I wont go into the personalities involved, but whatever the intent, it is clear to anyone who thinks rationally about it that retaining any form of service prosecuting authority will not cure the particular difficulties which have been shown to be problematic in military prosecutions and which have continued to vex both military and civilian prosecutors alike who have prosecuted serious cases before court martial. Having said that, civilianising military prosecutions will not cure all those defects either - the Trooper Williams case is a graphic illustration of that.
As with many press reports, I guess that due to press deadline pressures journalists do not always check both sides of a story before printing it. Wherever their sources came from in respect of the reference to military prosecutions, they could not have spoken to those who were there at the time and who know what went on. They have merely published the government soundbite made in the aftermath of the Baha Musa court martial trial when the press rounded on the military for having prosecuted "heroes". I think Lord Justice Gage's report puts this in proper context.    Aspals 
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6 December: The Guardian news story that the Military court service is going to publish more info about court martials is good news that's well overdue. The secrecy surrounding military trials is dreadful. More than that it is difficult if not impossible to get hold of reports of first instance hearings. So the whole process is shrouded in secrecy. This is why I say that the system should be replaced by the civilian system and all court martial decisions reported more widely.
At least the service prosecutors had the good sense to push for this. It's also encouraging to see that they are prosecuting cases which is former days would have been pushed under the carpet.    Tess 
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I agree that the news is to be welcomed, but the call for publication of first instance cases is unlikely to happen. After all, no Crown Court reports are available as far as I am aware. The more interesting comment in the item you referred to is the remark that previously cases were "pushed under the carpet". It is an outrageous and totally false claim. Cases were considered on their merits and prosecutions followed whenever the prosecution test was met (is there a realistic prospect of conviction and, if so, is in the public interest to prosecute). The newspaper has put up absolutely no evidence at all to substantiate these claims, which cast an unjustified stain over the reputation of the APA.
   Aspals 
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21 November: young gaddafi likely to be executed according to the hate.    pete  [Ed: This is the story]
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16 November: It's simple to see why the US props up the Turks, they both have the same disrespect for international law. The US says it supports international law and then exemps from liability for its troops and airmen bombing Libya and Turkey talks about human rights of Syrians while abusing the human rights of sections of its own population. They live in a separate world. I think the Turks are being used as the US puppet. If Anthony is right then they are ignoring the Security Council because they won't get their own way by using the proper legal channels. War war war is all the Americans think about.    Thinners    
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16 November: As I mentioned a little while ago, "this is a backdoor attempt to intervene in Syria." It is a very worrying sign of Turkey's growing assertiveness in the region, to become the dominant power. As a NATO member state, we have to be wary of being sucked into another war, which will quite probably involve Iran too, as Turkey is a NATO member state and is the home to a number of US military bases. Under the NATO Treaty, any attack on a member state is viewed as an attack on all members. We must also remember that the US is a fervent supporter of the Turks and one wonders how much Washington is behind the recent rhetoric from Ankara, perhaps even encouraging the new role the Turks see for themselves. It is an immensely dangerous game. By using the Turks in this way, it will be possible to circumvent the impasse in the Security Council which has had UK and US attempts to introduce a resolution against Syria thwarted by the Russians and Chinese who, after the Libya mandate, do not wish to put their names to any more military adventurism by hawkish members of the international community. R2P has been dealt a very severe blow.
However, were the US and the Turks to put Syria to one side, there might be a lawful justification for military action against Iran in the light of a recent UN report (of the IAEA) about its nuclear capability and the past aggressive rhetoric against Israel. But there is still concern over the attitude of the Russians and Chinese should any attempt be made to refer the Iranians to the Security Council. But, of course, self defence is always an option under the Charter when the threat faced is a grave one.   Anthony    Aspals Consultancy
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16 November: Turkey is upping the ante quite a lot today. Looks like we could be in for more NATO action soon. It is probably a ploy to get round the Security Council block by Russia and China which prevented a resolution in the case of Syria.    Scipio  
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7 November: Like I said before might is right, always has been as far as the yanks are concerned. They talk about international law but that is international law according to them.    Baz     
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5 November: It was recently pointed out to me that the UNSCR 1970 means that US servicemen are specifically exempted from the jurisdiction of the ICC, even though that same Resolution sought to engage the ICC for Libya, another non-signatory like the US. This is exceptionally disappointing for a country that justified its attacks and drone raids against Libyan targets as being in furtherance of the protection of the human rights of the citizens of that country against HR abuses by Gaddafi (threatened genocide) to seek to excuse itself from prosecution for any wrong-doing that is found to have been committed by US servicemen. They place themselves above the law and that, in itself, undermines international law. The rule of law requires accountability. The US is saying that does not apply to them. Do they have any moral authority to punish the wrongdoings of others if they seek to evade liability for their own wrongdoing? Imagine a policeman who, in upholding the law, kills innocent bystanders or uses excessive force in apprehending a suspect. To say he is unaccountable for his actions would raise an eyebrow or two, I am sure.  Anthony    Aspals Consultancy
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5 November: Following up what Tess said, they still get acquitted even when the trial is in a crown court. Remeber the trooper Williams case?    Scipio 
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3 November: I agree with Anthony that the ICC decision is a good one and also question like he does whether any trial of a suspected warcriminal will achieve a fair outcome if it is in front of a Libyan court. The inherent bias - for rebel fighter and against pro Gaddafi, is an obvious one. It's a bit like my concerns about trial by court martial. A very cosy set up with soldiers being tried by fellow soldiers and letting them off the hook in case it paints a bad picture in the eyes of the world although that attitude backfired a bit in the case of the Baha Musa defendants. The trial by the court martial has shown how complementarity works in practice. Everybody gets acquitted. Criminal courts have to be independent and not answerable to generals. Juries should not come from the same organisation as the defendant. That principle of independence that Anthony prays in aid in the case of Libya is also relevant within the contecxt of military trials.    Tess 
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3 November: I was very relieved to read in today's press that the ICC is to investigate all war crimes committed by parties to the Libyan conflict, including those alleged against NATO. This move is important to underpin the impartiality of international law and confirm that all are accountable for their actions. As Thomas Fuller said: "Be ye ever so high, the law stands above ye." No one is above the law. One just hopes that trials of individuals against whom the evidential test is met are conducted at the ICC in the Hague, although nations will no doubt insist upon the complementarity provisions so that they wash their dirty linen more privately. If that is the case, especially in the event that Libyans try any of the NTC/rebel fighters who may be accused of war crimes, this will not serve the interests of justice. We have seen the revenge attacks against former Gaddafi loyalists, and the lies put out by the new government about Gaddafi's death (with no one saying much at all about Mutassim). So, the idea that trials before Libyan courts will achieve just results, even if international observers are present, is highly questionable.  Anthony    Aspals Consultancy
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1 November: Actually, Pete, we should all care about what happened to them. It was in breach of international law: the rationale supporting our intervention in Libya in the first place. If we are prepared to turn a blind eye to murder, just because it is committed by our own side (we acted as the rebel air force and supported the rebel infantry) then how can we say that crimes committed by Gaddafi and his forces justify punishment? Even now the ICC is pursuing Saif Gaddafi to bring him to trial.
To condone what has happened is to compromise the rule of law. Pompous comments that "he had it coming", or "he got what he deserved" etc which we've heard in the media, are very disappointing, especially when some of the people making those remarks are diplomats, or journalists or politicians. This is the law of the mob. It is also extremely disappointing that the Prime Minister, who waxed lyrical about human rights when launching forth on a war that has cost thousands of lives, including civilian lives lost due to NATO bombings (which NATO has summarily dismissed and said it is far too difficult to investigate these allegations), has not seen fit to call for the upholding of the law when it relates to our enemy. And then we wonder why it is that troops are accused of prisoner abuse. Leaders lead by example. Mr Cameron should make a public statement condemning the murders of Gaddafi and his son, instead of which he said it was for the NTC to investigate, that highly impartial and reliable organisation whose pronouncements we have learned to trust and rely on for their unfailing accuracy. I jest, but he was being serious. Would he be so complacent if, instead of a couple of foreigners, they were British subjects who, in the case of the 69 year old man, had been sodomised with a knife and beaten before being shot twice, and whose bodies were then put on a degrading and macabre public display?   Anthony    Aspals Consultancy
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1 November: who gives a toss. two scumbags gone. job done. time to move on. job well done lads.    pete 
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26 October:  I should add to what I wrote earlier that I have written today to the Office of The ICC Prosecutor about the killing of Mutassim Gaddafi.
I remarked earlier that it was lamentable Mr Cameron has not spoken out about the breach of international law. While he has remained embarrassingly silent, his new Secretary of State for Defence has expressed his concerns. He has been joined by Hillary Clinton and Barrack Obama. Mr Cameron remains silent.
It is quite disappointing that those who bang the drum of human rights to justify a violation of state sovereignty, do not extend those rights to their enemies. Of course, this exposes the hypocrisy of their position and the grand standing for purely selfish political reasons. It is embarrassing to our nation.
Now we face an in-house investigation by the NTC, the very same organisation that put out a palpably false account of the death of Col Gaddafi. This is an exercise in expediency to appease international concerns. I will be very surprised if anything of value comes out of it, in spite of the confession by one soldier, made on video, that he shot Gaddafi twice and killed him. As for Mutassim, it appears his murder, in violation of international law, has been forgotten already. This is a sad day for international law - victor's justice. We, the international community, only afford protections to "nice enemies" and not any one nasty. Imagine that sort of an attitude in our domestic legal system.   Anthony    Aspals Consultancy
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22 October:  I have written to the office of the prosecutor about the death of Gaddafi. I should also write about Mutassim. The whereabouts of Saif are unknown. There is speculation he is badly wounded and headed for Niger. But, one wonders whether that is just a cover story to hide the fact that the rebels have killed him too, but do not want yet another accusation of war crimes laid at their door.
It is quite remarkable though that for a nation that professes to espouse the rule of law, Mr Cameron as its leader seems to think that an investigation into Gaddafi's death should be carried out by the Libyans and not by an independent international team of investigators. Does he really think any investigation by a regime that has offered about 5 different — and somewhat ludicrous — exculpatory versions of the former dictator's death and who have put his body on public display is going to be impartial? It is an unfortunate expression of contempt for the rule of law and encourages a whitewash. Shame on him. We should, as a nation, support the UN call for an independent investigation.   Anthony   
Aspals Consultancy
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22 October: Anthony's points about Gaddafi senior apply to his son who was also taken alive and photographed smoking a ciggy and then turned up dead. As for Gaddafi snr, reports in the press show that he was under surveillance by nato and was known to be in the convoy which they then attacked with rockets and bombs. So statements that they didn't know were out and out lies. It is hard to understand how the convoy running away from Sirte was a threat to anyone. The Telegraph said that they were firing on civilians as they fled. Yeah, right. I wonder if they mean civilians disguised as rebel fighters. Why on earth would they waste ammo on shooting at civilians when the real threat to them would have come from the rebels. The events of recent days just shows the extent of lying and deceit that's gone on by nato and the NTC and its fighters. This is great news for the future of Libya. The NTC are using the same sort of tactics that they blamed Gaddafi for.    Thinners 
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21 October:  The killing of Colonel Gaddafi was celebrated by the rebels and by leaders in the UK and US. Sadly, for nations that supposedly espouse the tenets of international law and, indeed, sought to base their war against Libya on those principles, it is immensely disappointing that not one of them has spoken out about the apparent grave breach of the 3rd Geneva Convention by the rebels in executing without trial the former Libyan leader. I use the word "execution" because that is what it looks like from reports in the media: he is captured alive, is beaten and then shot. Thereafter, there are conflicting and rather ridiculous accounts of how his own bodyguard shot him to spare his humiliation, or how he was hit in cross-fire, or how he resisted arrest or how he tried to run away. These events are attributed to a man who was 69 years old and was badly injured in both legs. There needs to be an urgent independent investigation into his death and, if the law is to be respected and shown to be impartial, the ICC prosecutor taking appropriate action in the event of the killing being in breach of the law.
It is not a matter of support for Gaddafi that is relevant here but respect for international law. The silence of world leaders over this killing is a clear indication that human rights and Geneva protections will only be relevant in the case of people we like. Now, to cover up the crime, the NTC is attempting to bury the body quickly. What they will not be able to do is erase the video and photographic evidence available on the internet which casts serious doubt on the rather far-fetched exculpatory explanations of how Gaddafi met his death. If there is to be any morsel of credibility for the rule of law, justice must be extended even to an oppressive and reviled dictator like Gaddafi. If it isn't then what is the distinction between his way of doing things, which we said was wrong, and ours which we say is right?   Anthony    Aspals Consultancy
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20 October:  So Gaddafi is dead. Probably killed in a recent nato attack on a couple of loyalist vehicles. Cameron and Blair and probably Bush too can breathe a sigh of relief as he will not be around to dish the dirt on all the sordid little deals they did with him. There are still lots of questions about rendition flights to Libya. we didn't seem to mind too much then about the brutality of his regime. We used it to our purpose. I agree with Tess and others that the ICC should look at the conduct of rebels the coalition and NATO.    Thinners 
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20 October: In reply to Anthony, it seems to me that if a nation or nations breach the lawful authority given to them, then it must follow that they are acting illegally and, if they are acting illegally, then they are committing war crimes. That is something the International Criminal Court should also look into. While on this topic and while I agree that there might well be a case to answer against Gaddafi and his senior ministers and military leaders, the ICC should show its independence by examining the atrocities committed by rebel forces and, as Anthony rightly points out, the conduct of those involved in the destruction of Sirte.    Tess 
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Tess makes some powerful points, but it is doubtful that the ICC will dare to examine the conduct of the coalition - it is victors' justice ie the losers get prosecuted. Apart from a few of minor blips where individuals were prosecuted in domestic courts-martial (eg Lt Calley) it was ever thus. As I see it, there have been two casualties in the Libya affair: the UN Security Council and International law (including international human rights law). In spite of the rhetoric, the utopian concept of R2P might have achieved realisation were it not for the coalition/NATO unashamed shredding of the mandate given by the SC. Then the UK and USA throw their hands up in despair when the Chinese and Russians veto a resolution on Syria, effectively torpedoing the R2P concept (which is all about redefining sovereignty as belonging to the people and not to governments - but let's leave that interesting discussion for another time). Is it really any surprise when the Russians and Chinese saw how a limited mandate to protect civilians in Benghazi was turned into a licence to wage all out war against a fellow member state of the UN under an unsubstantiated justification of preventing genocide. Even if the attack on Gaddafi forces was justified as a preventive measure, it is a tortuous leap in logic to see how the coalition's subsequent campaign could in any way be justified other than by the openly stated (and completely illegal) objective of regime change. That the UK, in particular, still pretends otherwise is symptomatic of the hypocrisy of government - or perhaps it is its defence to accusations it acted illegally.
   Aspals 
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18 October: With the terrible destruction of Sirte by Libyan rebels, and the concern of most people over the plight of civilians trapped there by the fighting and rebel shelling, NATO's inaction to abide by the provisions of the UN mandate it so vocally expressed as justifying the attacks on Gaddafi's forces, a new doctrine has emerged: F2P (Failure to Protect). Does anyone still doubt the partiality of NATO's involvement and the extent to which it breached the mandate?
Taking the moral high ground is all well and good if the principle espoused is impartially applied, but when it is shown to be a principle that only favours one side, it is exposed as humbug. It could have dealt the death blow to the concept of R2P.  Anthony   
Aspals Consultancy
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17 October: So how did regime change creep onto the agenda for Nato. Sorry, no pun intended    Tess 
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13 October: In reply to Aspals, NATO a regional organisation was tasked to undertake the UN mandated mission to make Libya comply with UN Security Council Resolutions 1970 and 1973, providing a unified chain of command.    Pegasus 
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10 October: Replying to Aspals, I dont think I mentioned Libya. But the view of NATO's strategic objectives is derived from a number of statements and declarations starting with the 1999 Washington Summit, when NATO allies agreed a new Strategic Concept to reflect changes in the security environment since the end of the Cold War.
Then there was the November 1991 Rome Declaration on Peace and Cooperation which further underlined NATO's intention to redefine its objectives in light of changed circumstances. The declaration covered the wider challenges to NATO security interests, such as weapons of mass destruction, regional instability, and terrorism;
Subsequently, the 2002 Prague Summit, which created the Defence Capabilities Initiative and the Prague Capabilities Commitment;
More recently, NATO™s 2010 Strategic Concept dealt with the Alliance™s ability to project globally. NATO members confirmed the central importance of Article 5 and added crisis management and cooperative security to form three core-tasks for NATO in the twenty-first century.
These collective decisions extended the NATO AOR to reflect the changes to the security environment. So, Libya was clearly a commitment falling within the new concept.    Pegasus 
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But does a strategic concept overrule a governing treaty provision expressly setting out the conditions for involving the Alliance? If it does, what is the point of the Treaty? To go beyond the provisions of a treaty, without specifically amending it to entertain the new concept, is ultra vires the treaty. Perhaps that is at the core of some of the recent dissent in the NAC over the decision to bomb Libya?    Aspals 
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8 October: Just a couple of comments to add. To deal with what Bryony said, I suggest it isn't a case of being "happy that the proposed mandate for Syria was not passed", but concern about the fate of international law when nations who are supposed to uphold its values and project themselves as champions then set about breaking the law by exceeding the authority given to them. In a nutshell this is what is being said about the coalition and NATO involvement in Libya, particularly when regime change emerged as the true objective. That damaged the trust of some members of the Security Council that furture resolutions authorising Chapter VII humanitarian action would be pursued aggressively to effect regime change.
The second point I make is to add to what Aspals said about NATO. In fact, NATO's involvement in Afghanistan was the first time it had invoked article 5 of the treaty (an attack upon one member is an attack on all).    Pegasus 
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Thank you for the clarification about article 5, Pegasus. It was very helpful. But how do you say Libya was within the NATO Treaty? There was no attack on a NATO member state, or a threatened attack. Moreover, looking at the NATO website, it is clear that regime change was a stated objective of the Alliance as early as 14 Apr. 2011, when it was said: "Qadhafi and his regime have lost all legitimacy through their comprehensive and repeated refusal to abide by UNSC Resolutions 1970 and 1973... We welcome the outcome of the first meeting of the Contact Group which took place yesterday in Doha and strongly endorse its call for Qadhafi to leave power and its steadfast commitment to implement UNSCRs 1970 and 1973." This text can be accessed [here].    Aspals 
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6 October:  I can not work out why everybody is so happy that the proposed manda for Syria was not apssed as the Russians and Chinese blocked it. People are dying and suffering in Syria becuase of the brutal violence against them from soldiers and police. We surely cannot stand by and watch people die like this and being killed by their president. Human rights are important and the world should do something to stop what is going on.    Briony 
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5 October: Does anyone else see the irony in Turkey's statement that it is going to press for sanctions against Syria for human rights abuses? After the genocide against the Armenians, which they never acknowledged, and the persecution of Kurds and human rights abuses against political protesters, they know a lot about oppression and human rights to lecture others I suppose.    Scipio 
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5 October: everywhere in the world is nato's aor. its all part of globalisation. they're taking over the world.    pete 
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According to the NATO Archives reference to "NATO the first 5 years" The NATO Treaty "was written within the framework of the United Nations Charter and was based on Article 51 of Chapter VII which stipulates: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain and restore international peace and security." As to AOR, "there is a distinction to be made between the geographical reach of its membership and the geographical area of responsibility guaranteed by the Treaty. The former was extremely controversial... The latter is less contentious, but touched on sensitive issues which were fundamental in defining the role of the Organization and its evolution. It must be noted that the definition of NATO™s area of action was eventually treated in Article 6 and, to a certain extent, in Article 4." The final version of Article 6 enumerates specific countries in the North Atlantic area and adds that, in certain conditions, NATO™s responsibilities can go as far south as the Tropic of Cancer should islands, vessels or aircraft of any of the Parties in that area be attacked. According to Theodore C. Achilles, to one of the drafters of the Treaty, " there was never the slightest thought in the mind of the drafters that it should prevent collective planning, manoeuvres or operations south of the Tropic of Cancer in the Atlantic Ocean, or in any other area important to the security of the Parties. (¦) It was understood by all that the scope of this Article was worldwide." That means Pete is right, although the United States and the United Kingdom have indicated clearly that they consider the North Atlantic Defence Organization should be limited to regional defence planning. But it is not clear how that sits with NATO involvement in Afghanistan or Libya. During the accession of Greece and Turkey, it was felt that enlarging NATO to include them "challenged earlier visions of NATO as a tight-knit community of like-minded countries with similar values. Inherently though, the purpose of the Alliance was defence ...."    Aspals 
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5 October:  Spot on Anthony. The US-UK-French coalition should've stuck to the mandated mission instead of ripping the mandate up and doing their own thing, especially when they already knew that China and Russia were unhappy about the original resolution and abstained from the vote. The Russians and Chinese are right to be worried about this western obsession with interfering in everybody else's business at the dopw of a hat.    Thinners 
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5 October: Well, now it has happened. Russia and China vetoed the proposed UNSCR on Syria. We saw this coming as an inevitability, due to the grave disregard for UNSCR 1973 in respect of Libya. Clearly, the UN saw this too and therefore tried to water down the draft as much as possible, but even that was not enough. In fact, only 9 SC members supported the resolution (the absolute minimum), with 4 abstaining, plus the 2 vetoes. But China was very clear in its opposition to intervention in the internal affairs of states. Recent events have dealt a major blow to the so-called Responsibility to Protect (R2P) concept which the UN was trying to develop. Libya shows that the countries which seriously abused the power they were given by the Security Council have actually done grave damage not only to the cause of R2P but to the very working of the Security Council itself. That the US, UK and France could not see this is unbelievable. If they did, it demonstrates their disdain for the Security Council - they were going to follow their own agenda. The tragedy is that the objectives of the Libya mandate were successfully achieved very quickly: the No-Fly Zone and arms embargo were in place effectively and the citizens of Benghazi were protected from attack. What then happened to snatch defeat form the jaws of a substantial victory was the inevitable "mission creep" to an extent seldom seen before, where the coalition felt that it ought to do more to overthrow the regime. So, regime change became the manifest objective - it was probably an objective all along, but had never been expressly articulated until 15th April, when Obama, Cameron and Sarkozy released a joint statement professing that Gaddafi must go. There is no legal authority under the UN Charter for regime change. This did not trouble these three leaders. Nor did it bother Dr Fox when he announced that Gaddafi was a target. France and Qatar (perhaps others) breached the arms embargo by supplying weapons to the rebels and NATO obligingly provided its air force to flout the No-Fly Zone and participate in the conflict as the air arm of the rebels, attacking Gaddafi's combat forces and munitions and material. It is only through the most tortuous use of interpretation that anyone can justify these actions under the mandate.
What happens now? This is a very difficult question to answer. We are in a very dangerous place due to the coalition/NATO breaches of UNSCR 1973. The cause of fighting human rights abuses has been hugely set back. NATO wanted to demonstrate its relevance (although was this a NATO area matter within the sphere of its regional influence? What is the NATO area?). It intervened in Kosovo, where there was no UN mandate at all and certainly no lawful authority to intervene or to change the regime.
One of the areas of concern relates to article 39 of the Charter which allows the Security Council to determine "any threat to the peace, breach of the peace, or act of aggression". But to decide there is a threat to international peace, there must be real evidence that such a threat is imminent, otherwise it can say any internal action is a threat to international peace. In relation to accusations of the serious crime of genocide, the criteria of the offence must be met. These are set out in the Genocide Convention. Then it must be established that there is a threat to international peace and not just internal. The drafters of the Convention quite explicitly rejected universal jurisdiction for the crime. Article VI recognises only territorial jurisdiction, as well as the jurisdiction of an international criminal tribunal. R2P was in response to Rwanda. Kofi Annan said R2P was to ensure that nations acted if another Rwanda loomed when approximately 800,000 Rwandans were slaughtered by their fellow countrymen and women while a UN force, which was in-country under a UN authority, lacked a mandate nor was it equipped for the kind of forceful action which would have been needed to prevent or halt the genocide.
We may not like the law but ignoring it and doing our own thing, or bending it to suit the purpose of a few nations, is not the answer. International law really operates by consensus. If we do not respect international law then what hope is there? If we do not like the law, then we must try to change it. The UN Charter provides such a mechanism within articles 108 and 109. Nations may consider that the UN Charter is no longer fit for the purposes of the human rights demands of the modern world, but they will have to now persuade China and Russia that any changes will not lead to a policy of intervention in the internal affairs of states, and certainly not on the say-so of only 9 out of the 15 members of the Security Council. Having invaded Kosovo (without a mandate) and Libya (with a limited mandate which was seriously abused), which have really led to the refusal to condone further interference concerning Syria, this is a monumental task.   Anthony    Aspals Consultancy
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13 September: Phil Shiner doensn't share Aspals reticence. He's referring several people to the DPP for prosecution, both soldiers and commanders.    Pegasus 
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But I haven't seen a report in which Mr Shiner names who he has referred to the DPP. This is the PIL website link to see for yourself.    Aspals 
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12 September:  It's a bit inconsistent when you've published a link to a newspaper article which names the main culprits. See the Telegraph at http://www.telegraph.co.uk/news/uknews/defence/8751123/Gages-report-identifies-key-individuals-claimed-to-have-failed-in-their-duty.html    Thinners 
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That article does not identity a criminal level of culpability, save in the case of Payne, who pleaded guilty and was sentenced to imprisonment. As for the others mentioned, it is not clear cut and there are obviously possible bars to further prosecution of those who were acquitted at the trial. Therefore, the decision to prosecute is one for the Prosecuting Authority to consider and I would not wish to seek to influence it one way or another - and I speak as one who was involved in the original prosecution of the individuals by court martial.    Aspals 
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12 September: Baz is right. Any prosecution so long after the event will really be difficult. I can't see it happening.    Tuppy 
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11 September: Nobody's going to get prosecuted. It's too late now. Admin action is a possiblility and should be quick. Some of these guys have been promoted since this happened. The shame of what they did wont ever leave them.    Baz 
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11 September: Was it necessary to redact the names? They are clear from the report and so is the basis for applying the criminal standard.    Pegasus 
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But the report does not say these individuals will be prosecuted. You will appreciate, these are sensitive issues and ones for the prosecuting authority to decide.    Aspals 
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11 September: The standard of proof appleid was in general terms the civil astandard but the chairman did explain that wherever he used expressions like I am sure or no doubt, he was applying the criminal standard. He applied those terms to [names edited] so he obviously thought the court martial got it wrong.    Pegasus 
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I am wary of pre-empting any decision by the prosecuting authority, so will leave it to their good offices to determine whether or not charges should arise against anyone and, if so, who. But you are right that Gage LJ did explain that the criminal standard would apply in certain cases. It still remains a fact, though, that the court-martial did not have before it all the evidence that was presented to the Inquiry, and some of the witnesses who closed ranks at the trial were less reticent to the Inquiry, perhaps in view of the undertakings given concerning no prosecution. Which brings us to the other complicating factor, the immunities provided by the Attorney General. Consequently, any decision about prosecuting anyone will be a complex and tedious process. Then there is, as rightly pointed out by Pete, the problem of accurate recollection by witnesses some 8 years down the line.    Aspals 
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11 September: Aspals mounts a spitrited defence of the court martial military system but fails to deal with the real issue at the hear of it all which is how can the public have any confidence in the system dealing properly with major crime. The Gage report criticisms make disturbing reading even more so that he clearly feels that wrongdoing was carried out by people acquitted at the court martial. That is something the army cannot explain. It shows that military courts (we're all soldiers together) will never convict officers and men who as they see it are just doing their job. I'm pretty sure jurors must think there but for the grace of god go I. So this case will haunt the military system and more than any other show that it cannot deliver justice for victims of serious crime.    Tess 
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I think we have to be careful in the comparison that we are actually comparing like with like. The court martial required a criminal standard of proof, whereas the Inquiry used the civil standard.    Aspals 
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10 September: beating up prisoners is not on. if anyone gets prosecuted it should be in a court martial but 8 years down the line will witnesses come forward and will memories be as good?    pete 
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9 September:  The abuse of the Iraqi prisoners is bad enough but the refusal of sother soldiers who witnessed what happened to come forward and say what they saw is even more shocking. There is a document called Values and Standards which sets out the standards of behaviour expected of soldiers and officers and the qualities they should show. It looks like none of them in this case had even a passing knowledge of it. It is also a pity that the newspapers today seem to regard it very much as yesterday's news. It has failed to make headlines. Just shows how important journalists think this is.    Briony 
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The low-key approach of the press might have something to do with the fact that two papers in particular, the Mail and Telegraph, printed a number of stories in the run-up to the court martial criticising any prosecution of "our brave troops" and then jumped for joy when the court acquitted everyone apart from the chap who pleaded guilty. Of course, there was nothing brave about what was done to those detainees. The trial itself was plagued by the closing of ranks of witnesses who refused to shop their mates. As you say, Values and Standards were ignored. The Gage report exposes more of the truth and shows that the prosecutions were merited. The newspapers probably realise they have quite a quantity of egg on their faces now. In terms of prosecutions, if these are to take place, it would probably be more appropriate for the civilian authorities to take action because, some of the affected individuals are no longer serving and therefore not subject to military jurisdiction, as more than 6 month has elapsed since leaving the army and the time limit applies under section 55. However, the Attorney General is able to consent to prosecution by court-martial - see section 61. The question is whether the public has confidence in the military court-martial system in view of what happened previously and which has been shown to be out of kilter with the findings of Gage LJ although, in fairness, he had more evidence before him than the court-martial, due to inter alia the wall of silence from fellow servicemen. Whatever happens, and whichever forum any proceedings are in, there are likely to be some interesting legal arguments.    Aspals 
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8 September: Has anyone here managed to read the Mousa report yet? From the press reports it looks like Lord Justice Gage dealt the army discipline system a death blow. A court martial acquits everyone apart from the person pleading guilty and the report points out that there was a closing of ranks and very serious breaches of discipline by members of the 1 QLR. Even the CO who was acquitted at trial was thought to have been negligent and failed in his duty. There should be prosecutions of those responsible if the evidence permits it, as Lord Gage's report implies it does. The court-martial system is a farce and as I've said before should be scrapped without delay along with the prosecutors. The whole system should go over to the CPS and civilian courts. Then we would see justice delivered, not members of a club looking after their own.    Tess 
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I appreciate you feel very strongly about the military justice system, Tess, but I ought to point out that the Court-Martial of Colonel Mendonca and the others was, in fact, presided over by a civilian high court judge and was prosecuted by a team of 4 lawyers, one of whom was a former Number 1 Senior Treasury Counsel. Also in the team was a very senior "junior", a second junior and a military prosecutor. The effect was that, although a military court, it had all the appearances of a Crown Court trying serious offences. Each defendant was represented by civilian counsel.
The second point I would make is that the Service Prosecuting Authority is actually now tri-service and, at present, headed up by a civilian Queen's Counsel, Bruce Houlder. There is no link from the SPA to any of the three Service chains of command. This is a a good arrangement which ensures military expertise and an understanding of the Service environment are preserved and employed when applying the prosecutor's test. The more serious the offence, the more irrelevant any special service factors are. Of course, it has to be said that the Attorney General has oversight of the Service Prosecuting Authority, which is not accountable to the Judge Advocate General or the chain of command. Hope this helps.    Aspals 
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6 September: The reference posted by Anthony about General Clark was very interesting, but hardly news to those of us serving who have known for some time that there were certain states on the US shopping list for regime change. Iran is clearly a prime candidate still, but no one has the stomach for doing anything about it yet. The US economy is a mess, as is ours and Europe has the Euro to contend with. We were extremely lucky to get away with the Libyan war and have yet to find out what it was that led to the sudden collapse of Libyan government resistance towards the end of last month. It is all very mysterious.    Scipio 
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I think that when we come to examine the events in Libya, two issues will be much discussed. First is the basis on which the UNSCR was obtained: was there a threat to international peace or was there a threat to a specific state that required action by that state in self defence? Second, and assuming for the sake of argument the mandate was in compliance with article 39 of the UN Charter, were the limited authorities (no-fly zone, arms embargo and protection of civilians) exceeded to the extent that NATO and coalition members became, in effect, belligerents in an unauthorised war against Libya? If the answer to that second question is in the affirmative, lawyers and commentators will no doubt ponder upon the true relevance of international law in times of crisis, as the UN mandate was ignored. As we keep saying, "might is right".
Treaty obligations to act in prevention of genocide (and the concept of R2P which Kofi Annan emphasized was not to be confused with humanitarian intervention, but to ensure that nations acted if another Rwanda loomed) do impose positive legal obligations, but military force and invasion of territorial sovereignty can be lawfully undertaken only if they are permissible within the terms of the UN Charter which, at present, does not entertain the sort of interventionist licence that was used in the case of Libya. The solution, therefore, is to amend the Charter. That document does indeed provide a mechanism. Why is it not used? To answer my own rhetorical question, it is because there is insufficient real (as opposed to token political) consensus among the international community which sees such a doctrine as a means of permitting intervention too easily. Some might argue that was indeed the case in Libya. There was much said about genocide, but no evidence that it occurred, according to Amnesty. So, were the 5 abstainers right to be sceptical?
The depth of that scepticism is illustrated by the fact that two of the five members of the Security Council (Russia and China) do not accept the doctrine of R2P or, if they do, did not believe that it applied. According to Naomi Kikoler (see her paper of September 2009) consensus for the doctrine was found, "ensuring unanimous endorsement of the norm. Certain concessions, however, had to be made.... by limiting R2P's scope to four crimes (genocide, war crimes, ethnic cleansing and crimes against humanity' as well as 'their incitement') as opposed to ICISS's criteria of 'serious harm.' Also omitted were the criteria for the use of force and references to the responsibility to rebuild". What then happened, in recognition of the legal concerns of the doctrine's sceptics, I suggest, was an initiative last year by an organisation called Citizens for Global Solutions, that the permanent five members of the UN Security Council should agree not to use their veto power (RN2V - responsibility not to veto) to block action in response to genocide and mass atrocities which would otherwise pass by a majority. This proposal was based upon the belief that the Permanent 5 have special responsibilities both to take action to prevent or stop mass atrocities but also not to block potential rescue/humanitarian protection missions undertaken by other actors. So, it can be understood why it was that China and Russia abstained: the UNSCR 1973 was considered to allow some form of humanitarian assistance. Their subsequent chagrin may be justified by the extent to which that assistance was rendered and the means used, which went well beyond the boundaries of the mandate and continues to his day, with air strikes continuing in support of rebel forces against the remnants of Gaddafi's army.
What seems to have resulted from the Libyan conflict is a reluctance among some members now to permit the Security Council to pass a resolution in the case of Syria. The Russians have apparently said they will veto it and the US, in response, has said it would rather not have a resolution than one which gets vetoed. So, the damage to the R2P concept is visible. As is the damage to the Security Council and to international law, which critics see as supporting the view that 'might is right'. If NATO and/the coalition is found to have acted beyond the mandate, will anything come of it? Who will be prepared to challenge the lawfulness of their actions? The victors are now dividing out the oil contracts between themselves. If we are to intervene in the internal affairs of a state, then we must change the Charter to permit us to do so. Do we take military action when we think it is morally right, or when there is a legal basis for it? Whose moral standards would we apply? If the law is out of kilter with current morality, should we not change the law?    Aspals 
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3 September: For a fascinating insight into the long-term objectives of US (and, therefore, UK) foreign policy, watch the incredible interview given by US General Wesley Clark, who revealed the long-standing US plan to invade Libya. Rather tellingly he says that, were it not for the oil, the US would regard the middle east with the same interest as it regards Africa.   Anthony    Aspals Consultancy
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2 September: (For Daisy). The MP's lawyer is talking rubbish. You can ask or say what you want in the chamber as it's protected by parliamentary privilege. Remeber the recent fuss about the super injunctions and the fact that the people were named in parliament. The judges were furious but there was sod all they could do about it. You wont get any replies or, if you do, they will be in really general wishy washy terms about how the government supports the forces etc etc. This government is not the soldier's friend. If it was it wouldn't slice 17000 from the army when fighting two wars and make no mistake, Afghan is a real war. That doesn't stop the ConDEms from putting cash before lives. Good luck to your boy with the court martial.    Tuppy 
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2 September: Dear Tuppy and Baz, Thank you so much for your comments which are very much appreciated. Tuppy: I won't get a response from my MP now. After some weeks, I had heard nothing so contacted his constituency office. I was told, rather brusquely, that all questions are dealt with in chronological order so basically 'wait my turn.' To test this, I sent a very basic question via 'We Write to Them' and received a letter in the post in a week! After querying this, I did get a late evening phone call (didn't want to put anything in writing?) in June from my MP telling me that their 'legals' had advised him not to ask my questions in the house and that Liam Fox would contact me directly. (Yeah, right). Nothing since. I have sent reminder emails but these are ignored so I feel that I am just banging my head against a brick wall. How can Cameron speak of wanting to bring 'democracy' to Libya (???) when his MP's can't even answer a constituent's questions? Democracy means we can all voice differing opinions but isn't the right to question pivotal to democracy? Is it right that this government can launch into action in Libya if it means our troops deployed elsewhere may knowingly be placed at more risk? If anyone knows if there is any way I could progress this and make my MP answer - please do let me know xx. Apologies for the rant but this is one Forces mum who has reached the end of her tether! (No.1 son facing court martial on a trumped up, absolutely ridiculous and trivial charge which is stressing us all out! That's how I found Aspal's!) Thanks again Baz and Tuppy.    Daisy 
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1 September:  Daisy, I stand corrected and reassured. You are right to press for answers to your well put questions. Government is supposed to be accountable to the people but this lot are more like communists. I hope you get a reply.    Tuppy 
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1 September: Referring to Daisy this government has helped to install another islamic regime that will be hell bent on attacking us. Gadaffi was the devil we knew. Now we will have fundamentalists stretching across north Africa across the med from Europe thanks to Cameron and Sarky.    Baz 
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31 August: My comment refers to Tuppy's post (21 July 11) 'The thing that stuns me is that there isn't more outcry from the public that servicemen have been treated so badly..' Well there is - but it is ignored. I saw my MP on 01 April 2011 and left written questions on our interventions in Libya as I was concerned that:
1. Al-Qaeda influences had been identified within the (then) Rebel forces
2. National Audit Office had identified significant ongoing supply chain weaknesses. I wanted reassurance that:
a) The Govenment was sure that we would not be sending our forces to fight alongside the very enemy we were in combat with within Afghanistan
b) That safeguards would ensure weapons supplied to Rebel forces would not find their way to Afghanistan to be used against our Armed Forces.
c) Assurances could be given that the urgent and immediate focus on providing equipment and supplies to Libya would not impact further on the supply chain to our forces in Afghanistan.
Despite contacting my MP and asking for a reply to my questions, I have received no response. Maybe my questions are perceived as foolish, naive and not worth their time - but I am a Forces mum who cares about the welfare of our families who are sent to do the government's bidding and wanted to ask questions of our government accordingly. I feel so useless now - but please believe me when I say that because you don't witness a public outcry, that there aren't people crying out. We are just not allowed a voice. Maybe, given what has been released over recent weeks, particularly Public Accounts Committee Supply Chain Report, I can see why I never received a reply in April. History will not be kind to this Government I fear.    Daisy 
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29 August: Tess and Scipio obviously think law is applicable. The attacks on Libya by NATO in defiance of the UN mandate and with everybody cheering them on shows that the law is irrelevant. It is white man's justice. We can break the law with impunity but we'll prosecute to high heaven any one else we say does it.    Baz 
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26 August:  Thinking about what Scipio says, he may be right. I'm not an international lawyer, but using the analogy of the criminal law, if a person acting in self defence uses excessive force, then his lawful act turns into an unlawful one. If that is the case in international law, then acting outside the lawful provisions of the UN mandate could make the pilots guilty of war crimes as would those sending them out there to do the bombing. Attacking Gaddafi's forces in his home town has got nothing to do with protecting civilians, nor acting in self defence of Nato forces.    Tess 
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26 August: scipio youre havin a laugh.    pete 
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26 August: If Nato is contravening the UN mandate, which I believe it is, then pilots who carryied out orders to bomb Libyan targets in support of the rebels acted unlawfully and committed war crimes didn't they? In which case superior orders are not a defence. The ICC should consider this immdeiately.    Scipio 
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25 August: the latest is we're sending sas to hunt the gadfly.    pete 
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I've checked the mandate again, but can't find any authority for this. It seems to confirm what many suspected all along, that regime change was the real priority, to get rid of Gaddafi. Of course, NATO has been a little more cautious with Syria, a more oppressive regime, as any attack on them is likely to bring Iranian involvement, with all the ramifications that will flow from it. Still, I suppose when one considers the shredding of the mandate, sending in the SAS is a mere peccadillo in comparison to the bombing that NATO carried out to help the rebels and the destruction of infrastructure and housing (to say nothing of the lives lost). There really ought to be a proper sanction against nations that deliberately and so flagrantly breach a legal authority given to them. NATO says it complies with the mandate, but who does it think it is fooling, when it bombs and kills retreating Gaddafi forces that have just engaged in combat with rebel forces. How does that come within the mandate? Their actions are always described as protecting civilians, yet this was one combat force fighting another. Civilians were not the target. As the fighting draws to its bloody denouement, with rebels advancing on Sirte, we can be assured that the citizens of that town will not enjoy the protection of NATO aircraft to stop civilian deaths from rebel guns. Britain and France have much to think about. Will they? I doubt it.    Aspals 
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25 August: Nato had to break international as set out in its mandated authority in order to achive its aim. That is a bad message to send out to the world and makes you wonder whether international law and the role of the UN has any meaning.    Baz 
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23 August: There is an interesting remark by Shashank Joshi in his analysis of Why Gaddafi's crack troops melted away, when he refers to "Nato's decision to serve as the rebel air force". It would seem as if others therefore share this view which we have for some time expressed, that NATO is not an impartial agent enforcing the UN mandate but, rather, acting as a participant in the conflict on the side of the rebels.   Anthony    Aspals Consultancy
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22 August: The friendly coalition has only succeeded in opening pandoras box. This rebuilding task will cost us all even more taxpayers money, which we can't afford. Cameron has had his Iraq moment, He will be quaffing his champers tonight celebrating how he won the war. Something to tell his grandchildren. The Libya intervention might be looked at as a precedent for future invasions of sovereign countries. That is scary.    Baz 
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22 August: As Libya moves into the next decisive phase, that of nation building, it is essential that a proper re-structuring plan is developed to prevent an internal melt-down through rivalries and the settling of scores. A careful watch needs to be kept on the extremist elements of the rebel community to avoid a slide into fundamentalism and the creation of a fundamentalist state on the soft underbelly of Europe. The UN needs to really grip this and to see that the institutions of law and order and government are quickly re-established, together with essential services for all the citizens of Libya, who have been the real victims in this tragedy. There is some encouragement on this front in that China, a state that did not support the coalition war against Gaddafi, has pragmatically stated it respects the will of the Libyan people and will assist with nation building.
We also need to take a long, hard, look at the role of the International Criminal Court which, I am sorry to say, may have played a key part in prolonging the fighting by its ill-timed announcement of indictments against Colonel Gaddafi, thereby leaving him no way out. The international community appears to have learned nothing from the lessons of Bosnia. As Tuppy says, one thing that is for sure is that the oil will now start flowing again. But, of course, our involvement had nothing to do with oil.   Anthony   
Aspals Consultancy
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22 August:  A smug Cameron might crow over his victory over a little country of 6 million, but will his conscience remain clear when the tribal infighting starts. The country has a very complex tribal make up and no traditional western style government. People in Musrata have no particular affinity to those in Benghazi. What comes next, who knows. We'll have to hold our breath. At least the oil will start flowing, Mr Cameron.    Tuppy 
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22 August:  What civilians is nato protecting? The lie goes on.    Thinners 
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22 August: The aftermath could be quite awful because there is still quite strong resistance to the rebels which means that not everyone supports their cause. Any new Libya will have a sizeable unofficial opposition which could spell years of internal unrest, as happened in Iraq. We still don't know what the new government will look like and what extent the islamic fundamentalists will influence it.    Scipio 
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22 August:  Support for Gaddafi has collapsed and the people of Triploi are coming out in large numbers to support the rebel fighters. This shows the real strength of feeling against Gaddafi. He must go now so that the fighting can stop.    Briony 
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It probably is no surprise that there are open displays of support shown by the civilian population to the rebels as to do otherwise would be seriously damaging to their health. The more pertinent question, I suggest, is the genuineness of that support.
On a slightly different matter, I have just heard the BBC report that the rebels have asked NATO to stop its campaign, but NATO has refused, saying it has a check-list of objectives to achieve!    Aspals 
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22 August: Might is right.    Baz 
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22 August:  wait for the blood letting to start and old scores to be settled.    pete 
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22 August:  The rebels were useless fighters and couldn't have done it without help from outside "military advisers" and air cover from NATO who attacked and destroyed Gaddafi troops and heavy weapons. It is quite funny that even though we know NATO was helping the rebels it continues to deny it and says it was enforcing the mandate to protect civilians. I suppose if you repeat a lie often enough some people might believe it. That was the technique used by Gordon Brown in the last government. It worked for him for quite some time so NATO probably hopes it will work for them.    Thinners 
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I think both Hitler and Dr Goebbels had a similar opinion: "If you repeat a lie often enough, people will believe it."
Gaddafi is on the way out, which is to be welcomed, but only because we breached international law to do it. Is it correct that we should sometimes have to break the law in order to put things right? Is that the way of things now? How does that impact upon the role of the UNSC and the resolutions it passes? Is humanitarian intervention becoming a recognised option, even though it does not lie within the remit of the UN Charter? Is the UN Charter still relevant as a legal document, in view of what happened in both Kosovo and Libya?    Aspals 
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21 August: In reply to Briony, I do not know whether the war is won or not, although there is no doubt that NATO's engagement in the conflict on the side of the rebels may well have had a decisive influence. However, I should make clear that I am not an apologist for Colonel Gaddafi or his regime. The point I am concerned about is the integrity of the UN process in obtaining Security Council resolutions and the adherence to the terms of those resolutions. The UN as a body is bound by the terms of its governing treaty, the UN Charter. It is absolutely and unequivocally clear that the Charter states, in article 1.1, that the purpose of the UN is "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace".
Article 39 of the Charter leaves it to the UN Security Council to determine " the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." But such threats etc must be within the parameters of article 1, ie threats to international peace. My view is that the UN (a) did not comply with the terms of its own Charter by contriving to view as an international threat to peace a situation which was quite clearly internal and did not become internationalised until France and UK effectively engaged in war against Libya by distorting the original mandate (to effect a no fly zone and protect civilians) and (b) that by failing to control properly the abuse of the mandate by France and UK and NATO, the UN has seriously damaged the likelihood that the UNSCR will agree a resolution on action to be taken in the future where there are humanitarian concerns. Evidence of this damage is to be seen in the refusal of nations to permit any similar mandate against Syria, although that government is committing much worse atrocities against its people than the Libyan government did. The way that NATO has openly engaged in hostilities against Gaddafi forces, in circumstances where it is impossible to say that they were doing so to protect civilians, has made a mockery of the whole legal authority under the mandate. On Thursday we learned that the Royal Air Force had carried out an attack on Gaddafi forces fleeing the rebels, by sinking the boat they were retreating to and, presumably killing and injuring those forces in the process. This was described as "the final act of a fierce battle with rebel soldiers". It was not an action in protection of civilians. It was an overt act of war to assist the rebels. Sadly, and in contrast, NATO has failed to act impartially by protecting pro Gaddafi civilians from attack.
So, my concerns are that the UN has not abided by its own Charter in that it intervened in a state's internal affairs; that the resolution passed by the Security Council has been rendered irrelevant by its disregard by the coalition; and that NATO has taken sides with the rebels in a war, and has thereby breached international law itself. Whether the doctrine of R2P is thought applicable or not, it remains a controversial doctrine and understandably so, as it provides a route for intervention in the domestic affairs of nations by attempting to re-write the definition of sovereignty. If the UN is to lawfully intervene in situations where the plight of the citizens of a member state is of concern, then it must do so on the clearest of terms. Its mandates must set out the authority. UNSCR 1973 did not authorise war. For the Security Council to be able to pass such resolutions, there is a need to change the Charter provisions to provide a legal basis for it to do so in situations of internal disputes. Because it has fudged it so badly, I believe great damage has been done to the UN and the ability of the SC to act robustly in future humanitarian cases. Of course, there still remains the matter of Article 39!   Anthony   
Aspals Consultancy
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21 August:  Isn't it time for Anthony to admit the war in Libya is over and the rebels have won. He should stop defending Gaddafi, a truly evil man. Good riddance.    Briony 
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19 August: As support for Thinners' point, the press report today that the RAF attacked and sank a boat filled with Gaddafi's troops as they fled the battle at the Zawiyah oil refinery. It is difficult to comprehend how in the world this attack was justified under the UN mandate (which refers to protection of civilians), when the fighting was between two military forces. It seems that when it comes to international law there is some force to the view that might is, indeed, right. The UNSCR is totally irrelevant, and has been for quite some time.   Anthony   
Aspals Consultancy
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15 August:  If might is right, who cares about the Security Council. The Yanks Brits and French don't.    Thinners 
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9 August: Another interesting development is the intervention by Turkey in the crisis in Syria. The UNSC has failed to pass a resolution because of the way the resolution in respect of Libya is being flagrantly breached. Of course, Turkey is a NATO member and, under the North Atlantic Treaty, any attack which occurs against Turkey is seen as an attack on all NATO members. So, is it the case, I wonder, that this is a backdoor attempt to intervene in Syria by using the NATO Treaty as a subterfuge. Do we smell skullduggery? If there is any substance to this fear, it is troubling that it will circumvent the Security Council.   Anthony   
Aspals Consultancy
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6 August (sent 5th) : Reading the news papers I don't think anyone believes nato claims that it is protecting civilians. That's just an excuse to attack what it thinks are Gaddafi targets when it kills civilians that are pro Gaddafi. Something to be really proud of. Syrian rebels can thank nato for no security council resolution. Anthony's point is right. No one trusts any coalition effort to comply with the terms of a resolution, as it showed over Libya. International law is all about law of the mighty.    Baz 
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6 August (sent on 5th):  re anthony. whs.    pete 
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2 August: In its blatant disregard for the aims and limitations of the UN mandate, NATO has succeeded in snatching defeat from the jaws of victory. Regime change was never a stated objective of the mandate. No surprise as it is illegal. The unilateral decision of the coalition to embark upon this new and illegal change to the mission meant that the initial objective of protection of civilians, which was successfully achieved quite quickly, has been completely overshadowed by the direct participation in hostilities on the side of the rebels against government forces. This has been anything but a wise move. The rebels, a rag tag bunch with diverse interests of their own, have shown they are not fit to rule and that a greater bloodbath awaits if they are successful against the government forces. The expulsion of Libyan diplomats was a theatrical gesture that denies an obvious avenue of dialogue with the Libyan government. This is at a time when dialogue is so important. The breach of the mandate means that the coalition is unlikely to get an amendment to it.
Precipitous action by the ICC has probably added to the difficulty of a peaceful solution and led to more deaths as the fighting continues.
Any action against Syria, a regime that is every bit, if not more, oppressive as Libya, is not now possible. It is unlikely that, having seen the distortion of a limited and clear mandate in the case of Libya, there is no faith that any similar mandate in respect of Syria would be observed.
All in all, a disaster. Things might have been different had the UNSCR 1973 been followed and not breached by the coalition.   Anthony   
Aspals Consultancy
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30 July:  for once the yanks did the right thing and stayed away from the main show. a bit stupid to recognise the rebels as the government when they go off killing their military leaders.    pete 
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30 July: I am with Baz on this. The fact that literally hours after we recognise the rebels and kick out the old Libyan representatives from their London embassy the rebels are then killing their military leaders is scary stuff. Just who are this lot we support? The more you look at what is happening the clearer it is that the plan was ill conceived right from the start. The way it looks at the moment and as crazy as it sounds, the worse thing the alliance can do is to get rid of Gaddafi, who held the country together and gave it prosperity. Installing a disparate and tribal riven rebel leadership looks like it will bring nothing but more bloodshed as inter-tribal rivalries are fought.    Scipio 
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Yesterday's Guardian editorial pointed out that "Two trends are evident. The fate of the French-and-British-led intervention is umbilically linked to that of the rebel army itself. And the prospects of a negotiated settlement are farther away than ever. The problem with this strategy is not just that it has strayed far from the terms of the original UN resolution. It is worse than that: the backers of the rebels know whom they are fighting against, but have yet to work out whom they are fighting for."
Wise words and ones that we agree with. Looking at the actions of NATO and the coalition the UN Resolution is not recongisable as the legal authority for what they are doing. They have deliberately and unashamedly taken sides with the group of unknowns forming the rebel opposition, and embarked upon regime change. They have shown that the obtaining of a UN resolution is merely a cloak of respectability for their breaches of international law. The Resolution itself was obtained in breach of the UN Charter, which requires, under article 39, that there be a threat to international peace and security. As we will all recall, back when the UNSCRs were passed, no such threats existed at all. All fighting was internal without the whiff of an external conflict, so there was no justification for action under articles 41 and 42 by the Security Council to "maintain or restore international peace and security." The problem was that the imperialist powers, and other lower ranking nations flexing muscle and punching well above their military weight, wanted to seize the chance to get rid of Gaddafi. They thought it would be quick. They were wrong on just about every front. If UN Security Council Resolutions are ever to be obtained in the future to support Chapter VII military action, they must be set out in the clearest of terms so that there is no ambiguity about their extent. Clear language should state that in the event of the terms of the resolution being considered by any member of the SC to have been breached, the matter must be returned to the SC for resolution. The fact that, in spite of protests from fellow SC members, the coalition has never been back to the UN to ask for greater authority to support its actions is indicative of two things: a. that it knows it would not get it and, b. that it recognises it over-stepped the mark and would be subjected to the starkest criticism. Let us not forget that the UNSCR 1973 was only passed by 10 members of the 15 member UNSC. Had two more abstained, it would not have got through. Hardly the ringing endorsement the coalition nations say it is. A cynical message has been sent out to despots around the world: do not be seduced into giving up your weapons of mass destruction by promises from your new "friends" in the western world, for you will one day be betrayed and then be incapable of defending yourself.
Lying in the background is the well-intentioned but highly contentious doctrine of Responsibility to Protect (R2P), which re-defines sovereignty and provides a way around the legal requirement of article 39. However, it is not the law.
Neither must we forget the most unfortunate role of the ICC in the midst of this. Desperate to make a name for itself, it hurried to get indictments approved to accuse Gaddafi and his coterie of war crimes, when only a few days later, Amnesty International reported that there was no evidence of mass rape, nor genocide. The other consequence of this precipitous action by the ICC is that it made Gaddafi dig his heals in and made the search for a peaceful solution much more difficult. How could we persuade him to leave power if there was this threat hanging over him? So Gaddafi carried on fighting and more people died and are dying as a consequence. There is much for our political leadership to reflect on, not the least of which is that if you embark upon a military campaign, don't decimate your armed forces who are the ones potentially doing the dying while you do the talking.    Aspals 
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29 July: Rebels killing each other even befor ethe war has finished, whatever next. God knows what will happen if they do form the main government. And we are backing this lot. What a half arsed way of conducting foreign policy. Bunch of amateurs.    Baz 
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23 July:  The roe restriction on shooting Taliban bombers is even more ridiculous when looked at against the story of the soldier who was a sniper and who killed a Taliban commander from 2000 yards. So it's ok to shoot someone who is not directly posing a threat in a premeditated stake out, but not ok to shoot someone planting a bomb. Where's the sense in that?    Tuppy 
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I have not seen the ROE in question but, like Tuppy, find it rather a strange restriction on the use of force. People engaged in armed conflict are an enemy under the Geneva Convention and can be killed wherever they are. The problem may have arisen on the basis that the Taliban is an organisation rather than a state party to the Conventions. In my view that is a semantic argument which in any event does not seem to have troubled those authorising the op whereby the Taliban commander was assassinated. But our domestic law under section 3 of the Criminal Law Act 1967 should be of some assistance. What do others think?    Aspals 
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22 July: Commanders might not complain, but they should point out to seniors and politicians any problems that increase risk to people whose lives they are responsible for. If they don't do that then they allow their arrogance to directtheir judgments and are unfit to command.    Briony 
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21 July:  no commander is a winger. he isnt gonna complain to some toff of a politician about him or his men not being up to the task.    pete 
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21 July:  My comment refers to Anthony's comment of 20th July. All I can say apart from that I agree with his view is that if these criticisms were made against senior management of a commercial company heads would roll. Someone would be in the dock for corporate manslaughter. Can you imagine sending any employee into a hazardous environment without the proper protective kit and carrying on doing it for months and years because you want to save money? Or by not sending enough people to do the job in the first place? The thing that stuns me is that there isn't more outcry from the public that servicemen have been treated so badly. There's no loyalty to the military no matter what politicians say. It's just words, words and more words. All meaningless. We need to see them put into action. I hope the European court does take the goverment to the cleaners over this. Maybe it will expose the politicians who made the criminal decisions over cash and manning.    Tuppy 
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20 July: Reading the synopsis of the Parliamentary Defence Committee Fourth Report concerning Operations in Afghanistan, one cannot help feelings of utter dismay and despondency. The criticisms ranged from unsatisfactory responses from MoD witnesses who gave the impression that the MoD intended to minimise what the committee was told about how decisions were made to deploy to Helmand in 2006 and then to expand the deployment, to the failures to provide essential equipment promptly, to provide troop levels or to provide proper intelligence and the failure in military and political coordination.
The report shows that the price of these failings was paid by the soldiers on the ground who were either killed or injured fighting in furtherance of government foreign policy. We are all well acquainted with the saga of Snatch Land Rovers.
The Committee was troubled by the reports in 2006 of commanders on the ground made to the Secretary of State that they were content with the support they were being given in Helmand when clearly they were not. The committee regarded it as "unacceptable that hard pressed Forces in such a difficult operation as Helmand should have been denied the necessary support to carry out the mission from the outset, and that this shortage had not been brought to the attention of Ministers." The change in the nature of the mission should have been put to the Cabinet as it increased the risk to our troops.
The Conservative Party, often thought of when in opposition as a friend of the armed forces, has proved yet again that it is not the safety of its military personnel which it places at the forefront of its thinking but, rather, the saving of money. When money comes before lives a party in government has lost its moral compass and has lost the right to lead the nation. It is utterly inconceivable that, at a time when we are effectively engaged in two armed conflicts, there is to be a further savage reduction of manning. The tempo of operations does not justify it, but the government is determined to press ahead, thus showing its disregard for the onus it placed upon the Services. It is no excuse to lay the blame at the door of the previous government. Without doubt they were responsible for the financial mess we are in, but this government is making the wrong decisions when ordering its priorities and is doing so with an eye to saving a penny at the cost of a life.
We must return to the days when experienced, seasoned individuals led our political parties, rather than the career politicians of today who know very little of a life in the real world outside politics. One thing for the government to mull over is the fact that, as the European Court of Human Rights has kicked the door wide open over the applicability of the Convention and, in particular, article 2, it is quite possible that the UK court decisions denying the protections of the Convention to our troops killed or injured on ops will be overturned.
I doubt very much that any soldier will not continue to do his often dangerous duty to the best of his abilities in the service of his country. It is just disappointing that government places such a low premium on his life and, while saying it values what he does in support of government policy, shows that he is not the first priority when it comes to money, manpower or equipment. He should be.   Anthony    (edited on 21st)
Aspals Consultancy
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18 July: In answer to Briony, the alliance will not want to be in the position of having to defend pro Gaddafi civilians which in its eyes it pretends don't exist, from insurgents. Nato does not deliberately target civilians, so it is obviously trying to ratchet up the pressure on the regime to do what it can to make it collapse. If the rebels enter the city, it will be the nightmare senario as it will then have to defend the civilian residents from attack. There is plenty of information now about rebel atrocities and even rebel commanders admitted they could not really stop them.    Scipio 
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17 July: What is Scipio talking about? He says nato bombs civilians in Tripoli so it doesn't have to protect them from rebels? So it's better for Nato to kill them than the rebels.    Briony 
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16 July: Having read the accounts in yesterday's press about Nato stepping up the attacks on Tripoli, I tend to agree with Aspals too that the coalition is intent on inflicting maximum damage before the rebels get there so that they do not have to protect pro Gaddafi civilians. That said, it makes their words of peaceful negotiation sound meaningless.    Scipio 
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13 July:  The roe restriction on shooting Taliban bombers is really worrying. I just don't understand why our soldiers are told not to shoot them. Why is it agains the law? If it is against the law, whos law. It sounds totally stupid and endangers the lives of our troops. People making these rules should be held accountable.    Tuppy 
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11 July: One of the newspapers carried a report that the rebels had been commiting atrocities in places they captured from Gaddafi forces. Nato has to ensure that pro Gaddafi civilians are protected under the UN mandate too.    Baz 
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13 July:  cynical but true, aspals.    pete 
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13 July:  It is nice to see that at last NATO is talking about stopping the bombing. Politics is the only solution that will work.    Pegasus 
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You are right - and we have said it all along. But, being a cynic, I wonder whether NATO's change of heart has more to do with the fact that, as the rebels close in on regime loyal areas where the local civilian populations are well disposed to Gaddafi, it is a way of abrogating responsibility for protecting those Gaddafi loyalists from rebel attacks, lest they alienated the very rebels that NATO has been supporting and fighting with.    Aspals 
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12 July:  Common sense at last from the French. It's time to stop the bombing and start the talking. It's finally dawned on them that Gaddafi is not going quietly and he still has huge support. Claims that we were bombing to help the Libyan people were very one sided. We were siding with some of the Libyan people against the rest. It was a flwed foreign policy. The sooner a political solution is found the better.    Tuppy 
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12 July:  the worlds a mad place. human rights for everyone apart from them who deserve it most.    pete 
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11 July:  It is difficult to understand why rules of engagement should be as limiting as Baz says they are. A person planting a bomb is an enemy combatant. Under Geneva law a combatant can be attacked. So it makes no sense that our soldiers are being told something different. I wonder if the roe may give rise to claims in negligence.    Tess 
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11 July:  I agree completely with Baz. What nutters are drawing up our ROE? Maybe we should offer Taliban bombers a human rights leaflet with instructions how to sue us for loads of money instead.    Thinners 
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9 July:  (Which lunatic told our troops not to shoot the enemey even when planting bombs. If national ROE prevent killing our enemies then responsibility needs to shift away from MOD to the military for drrafting ROE. Negligence over Snatch landrover, failure to provide kit, not allowed to shoot the enemy, eurpoean human rights applied outside Europe, which planet is this.    Baz 
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8 July:   Am I alone in thinking that the European Court of Human Rights is determined to do what it can to annoy us Brits? It recently ignored the will of the UK parliament over prisoner votes and now has rubbished the decisions of the Court of Appeal and Lords in the Al-Skeini case. There's no point calling the convention the convention of European Human Rights as the court says they apply everywhere except that is if you are a British soldier fighting in Iraq.    Pegasus 
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The decisions in Al Skeini and Al-Jedda were clearly not what the government wanted. The implications are far-reaching, as not even a UN mandate will necessarily afford protection to the government from suit, without the clearest wording to define where responsibilities lie. The desire for a clear mandate? Where have we heard that before!
The judgment is a victory for the idealism of human rights while not truly understanding the problems of armed conflict/anti insurgency/ robust peace keeping. It heralds a new dawn for military operations as, effectively, the ECHR extends far beyond the reach of Europe (but not, as you say, to our own soldiers on combat operations, according to the High Court ruling early this week in Smith for whom article 2 obligations were held not to be applicable. This may now be reversed on appeal, if Al Skeini is followed). The judgment also sounds a warning shot across the bows of the Military Police and the chain of command. In relation to the case of Mousa, the Court said that the military police investigation failed to meet the requirements of article 2, in spite of the best efforts of the military police. More importantly, the court stated that "[t]hey were not independent; they were one-sided; and the commanders concerned were not trying to do their best according to the dictates of article 2". This is very damning indeed. The big question is whether the modifications to the relationship between the police and the chain of command, set out in the Armed Forces Bill, go far enough. Personally, I am troubled by that. Since reading the Al Skeini judgment, I am even more concerned. It has to be accepted that the police and the chain of command must be discernibly separate. Until that time comes, the army is inflicting serious wounds upon itself with possibly unfortunate consequences by tinkering around the edges. The warnings were given many years ago, but the obdurate refusal to make the necessary changes have led us to where we are now. In essence, the SIB should be significantly enhanced with regular professional police training in latest techniques. They should be under separate, independent command, reporting outside the military and not answerable to the chain of command. Investigation decisions will then be seen to be independent. They are excellent policemen and wrongly maligned. They worked under tremendous pressure in Iraq, so much so that one officer took his own life.
What is still troubling about the judgment is the real lack of appreciation by the judges of the implications of what they said. To expect a small, and reducing, army like ours to have the capability to deploy with a large police force, forensic teams, witness and victims units and other support agencies is just unrealistic. In Iraq it was not a case of conducting house to house inquiries in a benign environment. It was an exceptionally dangerous place in 2003. Witnesses were not easy to track down, being able to secure a crime scene was no easy task: there was a war going on. All the same, there were many things that were happening which should have been done differently and which would have been compliant with good practice, let alone art 2.
The decision presents a real opportunity for proper reform of the chain of command/ RMP relationship which, if it does not happen, could see the RMP reduced to a subsidiary role.    Aspals 
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2 July  (sent 1st July):   Thinners, you can add to your list of breaches attempting to kill Gaddafi and regime change. Neither or them is authorized by the mandate.    Baz 
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1 July:   The French and Brits are pushing the boundaries back all the time over Libya. Talk about breaching the resolution. What they are doing is not in the resolution and I've read both. Let's see, bombing the regime and providing air cover to the rebels, giving the rebels advisers, giving them money, giving them weapons, killing civilians. Sticking 2 fingers up to the UN mandate. Yep, sounds like a pretty typical NATO op.    Thinners 
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1 July:   The admission by France that it provided weapons to the rebels in Libya is a breach of the resolution passed by the UN. Even so, the Americans have tried to defend the French saying that the resolution permits all necessary means to protect civilians, in spite of the arms embargo. But what really startled me was the announcement by the FCO, reported to the Guardian that the "UN resolution could be interpreted in different ways". That was just astonishing. If it is true then what is the point of a resolution if each state can interpret it in its own way. The mandate should be clear in how it is to be implemented and there shouldn't be a broad divergence from it. Common sense has to be the yardstick where there is an ambiguity or unexpected circumstances, but that should be the extent of the lattitude allowed. The UN Security Council should take tighter control over its mandates and prevent wide divergence from them rather than allow the inconsistency in approach that flows from each nations individual interpretation, which is what the FO implied. The trouble is that in the case of Libya the countries that are the biggest offenders are also those who are Security Council members.    Pegasus 
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As a military lawyer, lack of clarity in a UNSCR is great as it gives more scope to do what you want, as we are seeing in the case of Libya. But is that the right thing to do I wonder? A UN mandated mission should be closely overseen by the UN to ensure that its real, intended objectives, are being met, rather than the hidden or extending agendas of participating nations - so-called mission creep.
Acting within NATO, individual interpretation is for the most part (excluding a particular nation that does it own thing anyway) collective ie the North Atlantic Council. Within that context, it is quite wrong for any of its participating members to undertake unilateral action which, in a fragile coalition, potentially undermines the operation of that coalition in compliance with the UN mandate.       Aspals
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