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Military Legal Issues - 2006



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2006 The Pinochet Affair: State Terrorism and Global Justice by Roger Burbach Yale Human Rights and Development Journal, Vol. 9 [2006], Iss. 1, Art. 6   
While most accounts of the prosecution of Augusto Pinochet focus on the undoubtedly dramatic progression of Pinochet's case in the British courts, Roger Burbach takes a different tack, construing The Pinochet Affair to include the pre- and post-history surrounding the British proceedings. Burbach draws on his personal familiarity with Chile since the 1970s-he fled the country during Pinochet's coup overthrowing Salvador Allende - and interviews with prominent figures in the Chilean human rights movement, judiciary, and political sphere. He constructs a picture of Augusto Pinochet as calculating his ascent to power, developing the necessary personality to order atrocities in pursuit of power, and using various tactics to avoid prosecution in Chile after his detention in London. Burbach tells a lucid story beginning with Pinochet's early years and continuing through Pinochet's recent evasion of Chilean courts. Burbach's access to key players in Chile provides especially good insight into the Chilean attempts to prosecute Pinochet since his return from London.
Summary by Author


2006 The Admissibility of Evidence Obtained by Torture under International Law Tobias Thienel European Journal of International Law   
The article presents a survey of the international legal issues raised by the use of evidence obtained by torture, which concern not only the procedural right to a fair trial, but also play a part in protection from the abhorrence of torture itself. In this discussion, the author passes comment on the recent English decisions in the case of A and Others. The question of the admissibility of such evidence is broken down into several different cases. All those cases come within the exclusionary rule of Article 15 of the UN Convention against Torture. The article further argues that the inadmissibility is also comprehensive under the right to a fair trial, having regard to the right against self-incrimination and to the unreliability of statements obtained by torture. It is also argued that this exclusionary rule is part of customary international law and that the very concept of jus cogens obliges all states to distance themselves from any violation of its substantive content and to therefore refuse to accept any evidence obtained by torture. The article therefore exposes the exclusionary rule as coextensive with the prohibition of torture and as a function of this prohibition.
Summary by Author


2006 Military Commissions — Kangaroo Courts? Charles H. B. Garraway International Law Sudies, Volume 81 pp303-315
2006
    Extracted
Full Publication
The decision to use Military Commissions to try persons held at Guantanamo has attracted massive worldwide opposition. Unfortunately, much of it has been caught up in the increasing political vitriol that seems to be marking the whole question of the so-called "war on terror." This is marring what should be a genuine legal debate. The advent of the International Criminal Court (ICC) with its emphasis on the doctrine of "complementarity" should have encouraged States to discuss how best crimes arising out of armed conflict should be dealt with on a domestic level. Is it appropriate in the 21st century to use military justice in this way or should "democracy" require a civilian response? Instead the issue has become polarized so that people tend to be either "for" military commissions"and support them without criticism"or alternatively "against""in which case nothing is good about them at all. Part of the difficulty is the confusion over the term "war on terror." Is it an "armed conflict" to which the laws of armed conflict apply? Is it a matter for law enforcement, in which case the laws of armed conflict may be irrelevant? Or is it a new form of conflict to which the law of armed conflict can only be applied by analogy?
Summary extracted by Aspals


December 2006 Interoperability and the Atlantic Divide: A Bridge over Troubled Waters Charles H. B. Garraway International Law Sudies, Volume 80
pp 337-355
The author examines the effect of 9/11 on the field of international and operational law, in particular on interoperability between the United States and Europe. For most of the last century, the United States and Europe (the United Kingdom in particular), have worked together in the military field, to the great benefit of world peace. It has been like a marriage. The divergence of political views between the US and "old Europe" has reached into other areas as well. Within the law of armed conflict, stresses have appeared that are beginning to impact on interoperability and hence operational efficiency. The United States is seen increasingly as looking upon European forces as a liability rather than an asset in operational terms. Traditional alliances are overlooked and there is growing emphasis on "coalitions of the willing."
Summary extracted by Aspals


December 2006 Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice John Laughland 1 Dec 2006
Slobodan Milosevic died in prison in 2005 while on trial at the Hague for war crimes. John Laughland was one of the last Western journalists to meet Milosevic. He followed the trial from the beginning and wrote extensively on it, challenging its legitimacy and its implications for international justice in newspapers such as the "Guardian". In this short and readable book, Laughland analyses the trial in full, from its inception to its deeply unsatisfactory conclusion. International justice is meant to be a safeguard through which war criminals can be brought to account. However the trial of Milosovic and also the trial of Saddam Hussein raise many questions about the way that this justice is being administered. What are the implications of a 'morality-driven' justice for us all? Laughland argues that the trials are little more than a PR exercise for leading Western countries, offering no justice and no safeguard against future crimes.
Summary by Amazon, adapted by Aspals


27 October 2006 Torture: an overview of the law Gabriela Echeverria and Elizabeth Wilmshurst Chatham House
May 2006,
There is an absolute prohibition in international law against torture. The prohibition applies even in times of national emergency or war, and there are no exceptions or justifications. The authors examine What is torture? How is torture distinguished from lawful interrogation techniques? Is torture prohibited under all circumstances? What if there is an imminent threat to the public: the so-called ticking bomb scenario? What obligations do governments have? What is 'extraordinary rendition'? On most points the law is clear. Torture and inhumane and degrading treatment are prohibited without exception. The prohibition applies to all States and is not limited to actions within their territories. States are barred from using information in proceedings if it has been obtained under torture. States break international law if they transfer persons to countries where they face a real risk of torture or ill-treatment or if they are complicit in such actions by others. Indefinite detention can constitute a form of torture if it causes severe mental or physical suffering. Harsh interrogation techniques which cause severe mental or physical suffering are prohibited, wherever they are used. Cruel treatment is prohibited and cannot be justified by the need to put an end to the 'war on terror'.
Summary adapted by Aspals


19 September 2006 The 'War on Terror': Do the Rules Need Changing? Charles Garraway Chatham House
September 2006,
Charles Garraway is a leading practitioner in the field of international law. In this paper he asks some very profound questions: Does the term 'war on terror' have any legal significance or is it just a figure of speech? What is the law applicable to the 'war on terror'? How does international law deal with non-State actors such as Al-Qaeda or Hizbullah? Is there a potential clash between human rights law and the law of armed conflict? Are the rules adequate to deal with the current situation or do they need changing? This paper explains the author's view that there need to be international efforts to agree on the law applicable to the new kind of conflict in the age of the 'war on terror'.
Summary adapted by Aspals


27 August 2006 Dozens of troops face threat of court after opening fire in Afghanistan Sean Rayment Daily Telegraph
27 Aug 2006,
The author considers that the threat of prosecution is hanging over dozens of British soldiers fighting Taliban insurgents in Afghanistan. He writes that six "shooting" inquiries have been launched by the Special Investigation Branch of the Royal Military Police (RMP) into the actions of troops suspected of breaching the Army's strict rules for opening fire in battle. The inquiries could lead to dozens of soldiers being charged with murder or manslaughter and, if found guilty, being jailed. He says the investigations follow orders by senior officers at the Permanent Joint Headquarters at Northwood, Middlesex, that all shooting incidents in Afghanistan involving "death or injury" of civilians or rebels must be fully investigated. The article appears to extend the myth that the soldier can do no wrong. It does not seem to consider the responsibilities borne by modern-day soldiers and the duty to uphold the rule of law. There is no licence for soldiers to kill, save when at war and engaging an enemy. As is often said, soldiers do not stand above the law. Peacekeeping is not war. The fact that a shooting in the circumstances outlined is investigated does not inexorably mean there will be a prosecution. It is considered by an independent Prosecuting Authority who makes that decision. It is worth remembering that, under the Armed Forces Bill 2006, presently before Parliament, there will be a power for the service police to investigate serious offences (which include section 20 GBH) without being called in first by the chain of command. The AF Bill provisions on the autonomy of the police and the minimising of the power of the chain of command to interfere in investigations is consequent upon the concerns highlighted in the disclosed correspondence between the Attorney General and the SoS for Defence following the Roberts case and attempts to place the service police on a similar footing to the civilian police in terms of powers of investigation. Nevertheless, it may still not go far enough.
Summary by Aspals


Summer 2006 Quantifying Arab Democracy, Democracy in the Middle East by Saliba Sarsar Middle East Quarterly Summer 2006,
at pp. 21-28
Debates over democracy continue to occupy not only U.S. and European policymakers but Arabs as well. Arguments rage about the merits of top-down versus bottom-up democratization. In coffeehouses and in taxis, Arabs discuss the issue. Can democracy take root in Arab countries? How can democracy's supporters move democratization forward? Is civil society a precursor for democracy, or can civil society thrive only once democracy is achieved? How do each country's internal and external dynamics affect the process? In order to gauge progress, it is necessary to measure democracy. Comparisons of such measurements taken in seventeen Arab states between 1999 and 2005 suggest not only is progress lacking in most countries, but across the Middle East, reform has backslid. .

June 2006 Combat Lawyer Lt Col Juliet Bartlett, AGC(ALS) Counsel, Jun 2006,
at p.21
A most readable article highlighting the career of its author, a senior army lawyer, and the varied opportunities presented by the Army Legal Services to those who join. The Army Legal Services is manifestly an equal opportunities employer. Lt Col Bartlett's varied career will whet the appetites of many budding military lawyers and be the envy of many others stuck in the drudgery of office routine. .
Summary by Aspals


10 June 2006 Squaddie: A Soldier's Story Steven McLaughlin
From the harsh realities of basic training to post-war chaos in Iraq and knife-edge tension in Northern Ireland, "Squaddie" takes us to a place not advertised in army recruitment brochures. It exposes the grim reality of everyday soldiering for the 'grunts on the ground'. After the tragic death of his elder brother, and in the dark days following 9/11, McLaughlin felt compelled to fulfil his lifelong ambition to serve in the army. He followed his late brother into the elite Royal Green Jackets and passed the arduous Combat Infantryman's Course at the age of 31. Thereafter, McLaughlin found himself submerged in a world of casual violence. "Squaddie" is a snapshot of infantry soldiering in the twenty-first century. It takes us into the heart of an ancient institution that is struggling to retain its tough traditions in a rapidly changing world. All of the fears and anxieties that the modern soldier carries as his burden are laid bare, as well as the occasional joys and triumphs that can make him feel like he is doing the best job in the world. This is an account of army life by someone who has been there and done it. .
Summary by Amazon


May 2006 The British Army and Homosexuality Stephen Deakin The British Army, Manpower and Society into the Twenty-First Century
Frank Cass. 2000. pp.119-138.
An article written about the army's attitude towards homosexuality and the external pressures for change. It examines the opposing arguments. The two sides in this debate use different political languages and do not convince each other. One view is individualistic, the other is communitarian. However there is little reason to suppose that the arguments deployed by Wolfenden in 1957 and accepted by Parliament in the debates that led to the Sexual Offences Act 1967 have lost their power when they are applied to the military. Military life is different from civilian life and this difference sometimes justifies different policies. It is not clear that an emphasis on individualism, sexual privacy and human rights will lead to a better or more fully effective military performance by the British Army. Given the evidence that serving Army personnel would find the presence of known homosexuals strongly offensive their presence in the Army would lead to diminished trust and social cohesion. The Army reflects society in many ways, buts its prime task is efficiently to defend the nation state. [Written before the policy change which now permits same sex realtionships within the Services].   Aspals

10 May 2006 British Military Ethos and Christianity Dr Stephen Deakin British Army Review
December 2005
Christian ethos in the British military explains why the British military became so concerned about its ethos at the end of the Twentieth Century. Christianity faded gradually from national life in the Twentieth Century. Secular humanism slowly took its place producing a society that moved from Christian standards in such areas as marriage, family, divorce, abortion, pornography, capital punishment and the like. Currently, the ethos of British secular humanism is highly individualistic, rights oriented, morally relativist and in that it supports a vision of a pluralistic society has a limited common public language. Yet military leaders in their contemporary concern for the British military ethos reveal, perhaps unconsciously, a lack of confidence about whether this secularism can provide the ethos that a successful British military requires. Britain's history suggests that its military requires an ethos that is spiritual, communitarian, duty oriented, morally absolutist and with a strong public language. Christianity provided these qualities for the British military. .

22 Feb 2006 Two Swords and Two Standards Ann Lyon Criminal Law Review,
November 2005
It is an article of faith among the majority of United Kingdom lawyers that the criminal jury system is more capable than any other of ensuring that the guilty are convicted and the innocent acquitted. Any proposals to restrict the availability of jury trial meet vigorous opposition, and politicians seeking to do so always protest their commitment to the principle of jury trial and their confidence in the reliability and good sense of jurors. Yet a jury is only as capable as the individuals who comprise it, and the composition of any jury is decided on an arbitrary basis, deliberately so.By contrast, the court-martial system has a board of officers who are the judges of fact and, if a conviciton results, become the sentencers along with the judge advocate. A significant safeguard to the system is the Permanent President of Courts-Martial, whose role in fact represented an important guarantee of independence from the chain of command and whose office has been favourably remarked upon by the European Court, the Courts-Martial Appeal Court, and the House of Lords. The author asks, "Can the jury system learn anything from the court-martial?" Another excellent and stimulating article from Ann Lyon.
Summary by Aspals.


13 Jan 2006 Murder, Mutiny and the Military British Court Martial Cases, 1940"1966 Gerry Rubin Francis Boutle Publishers
Jan 2006
Gerry Rubin describes and analyses over twenty court martial cases involving British and colonial forces between 1940 and 1966. Focusing on cases of murder and mutiny the collection covers peacetime, wartime and post-war trials in many theatres of operation, including Britain, Europe, Cyprus, Palestine, Africa, the Far East and even homicide on the High Seas. Many of the cases generated intense public interest and political debate at the time, particularly those involving the imposition of the death penalty and where British troops were involved in the shooting of civilians. With the trials of British soldiers involved in abuses in Iraq still in the public mind this collection is timely. A detailed introduction describes court martial procedure during this period and discusses the continued function of courts martial today.
Summary by Aspals.


15 Jan 2006 My War: Killing Time in Iraq Colby Buzzell Jan 2006
At twenty-six Colby Buzzell, unemployed and living at home, decided to join the US Army. Within months he was in Iraq, a machine gunner in the controversial Stryker Brigade Combat Team, an army unit on the cutting edge of combat technology and the first of its kind. Trapped amid 'guerrilla warfare, urban-style' in Mosul, Iraq, Buzzell was struck by the bizarre and often frightening world surrounding him. He began writing a blog describing the war - not as being reported by CNN or official briefings - but as experienced by the soldier on the ground. His story is a brutally honest and hard-hitting account of the absurdities of modern war. These are the real stories of the war: a firefight where the resistance came from 'men in black'; a night spent chain-smoking in the guard tower counting the tracer bullets being fired over the city; and the hesitation of a young soldier who had been passed around from platoon to platoon because he was too afraid to fight. "My War" is a powerful story of a young man and a war, unlike any you have read before.
Summary by Amazon.


15 Jan 2006 The Last True Story I'll Ever Tell: An Accidental Soldier's Account of the War in Iraq John Crawford Jan 2006
John Crawford's story might be something out of Hollywood (indeed, with the new FX series, `Over There', now playing, Crawford's story seems almost as if it had been lifted for that drama). Crawford is like many others - he joined the National Guard for college money, not to go abroad and fight a war (whatever happened to the days when the National Guard stayed at home? but I digress...) He was nearing graduation, newly married, and suddenly thrust into the middle of a war that was controversial at the start, and increasingly unpopular at home as it dragged on. Crawford spent three years in the 101st Airborne division, and then enlisted in the National Guard as he entered college, primarily for the tuition assistance. In Fall 2002, he was activated and had to go. Like many, his expectation of a short tour of duty was frustrated - the promise of `three months, six at most' turned into more than a year abroad.
Summary by Amazon.


13 January 2006 UN Report: Draft Principles Governing the Administration of Justice Through Military Tribunals COMMISSION ON HUMAN RIGHTS E/CN.4/2006/58
13 January 2006
Also available [here] to subscribers
At its sixty-first session, the Commission on Human Rights referred to the continuing study on the issue of the administration of justice through military tribunals in two mutually complementary resolutions, 2005/30 and 2005/33, both adopted on 19 April 2005. In resolution 2005/30, "Integrity of the judicial system", adopted by a recorded vote of 52 votes to none, with 1 abstention - the United States of America, which had requested the vote - the Commission, noting resolution 2004/27 of 12 August 2004, of the Sub-Commission on the Promotion and Protection of Human Rights, took note of "the report submitted by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights on the issue of the administration of justice through military tribunals (E/CN.4/Sub.2/2004/7)" (para. 1) and requested "the Special Rapporteur of the Sub-Commission on the issue of the administration of justice through military tribunals to continue to take account of the present resolution in his ongoing work" (para. 10). This resolution contains highly important provisions relating to earlier Commission resolutions on the same subject, notably resolution 2004/32 of 19 April 2004. In it, the Commission reaffirms that "according to paragraph 5 of the Basic Principles on the Independence of the Judiciary, everyone has the right to be tried by ordinary courts or tribunals using established legal procedures and that tribunals that do not use such duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals" (para. 3). It "calls upon States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence" (para. 8). The second reference to the study appears in resolution 2005/33, "Independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers", which was adopted without a vote. This is still more specific, taking note "of the report submitted by Mr. Emmanuel Decaux to the Sub-Commission on the Promotion and Protection of Human Rights on the administration of justice through military tribunals (E/CN.4/Sub.2/2004/7), which includes draft principles governing the administration of justice through military tribunals" (para. 11) and noting "that the report of Mr. Decaux containing an updated version of the draft principles will be submitted to [it] at its sixty-second session for its consideration" (para. 12).
Summary extracted by Amazon.


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