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Military Legal Issues - 1997 & earlier


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Date Title Author Reference
1997 The Protection of "Blue Helmets" in International Law Françoise J Hampson The Military Law and Law of War Review, Vol XXXVI - 1-2, at page 203
An excellent thought-provoking "no-holds barred" analysis of the Convention on The Safety of United Nations and Associated Personnel. Prof Hampson clearly feels that the Convention is fundamentally misconceived and so badly drafted as to be unworkable. She highlights the difficulty in identifying when the Convention is applicable and asks: "If you cannot tell when a treaty is applicable, how can you apply it?"  She also criticises the palpable absence of involvement of military lawyers, during its drafting, who are the very persons that understand the problem on the ground. Further, Prof Hampson considers the existence of the Convention will make about as much difference to the protection of UN personnel as the "safe areas" did to the protection of those in Gorazde and Srebrenica.
Will a functioning ICC render this "unworkable" Convention truly redundant? It is wrong to send soldiers out to do a dangerous job on behalf of the international community and then fail to afford them every protection possible in the pursuit of their duty. The Convention has been incorporated into English Law as the United Nations Personnel Act 1997   Aspals

1997 Rules of Engagement. A S Paphiti The Military Law and Law of War Review, Vol XXXVI - 1-2, at page 181
A paper presented to the Brussels meeting of the Society for Military Law & LoW, October 1996, which looks at the history to the ROE development within principally HQ ARRC, for the NATO operation in Bosnia. This paper was based upon that published in January 1996

1997 Application of the ROE. J de Bruijn The Military Law and Law of War Review, Vol XXXVI - 1-2, at page 193
A paper presented to the Brussels meeting of the Society for Military Law & LoW, October 1996, which is a sometimes critical view of how the ROE worked in practice. Maj de Bruijn was legal adviser to the Dutch NATO military contingent in Bosnia, during 1996.

1997
April
Parliament , Prerogative and Military Law: Who Had Legal Authority over the Army in the Later Nineteenth Century? Prof G Rubin Journal of Legal History,Vol.18, No.1
pp.45-84
Considers the conflicts between the Judge Advocate General's Office and the Army Commander-in-Chief in the Horse Guards in the later 19th century over whether the Letters Patent of the JAG granted him judicial authority to quash illegal courts-martial, or whether his legal powers were advisory only. The debate cut across to some extent the struggle between parliament and the Crown over political control of the Army at that time, as the JAG was both a member of parliament and member of the government (and therefore answerable to parliament) till 1893, as well as legal adviser to the Sovereign who personally confirmed awards of certain GCMs(even after the Army Act 1881). The C-in-C (Duke of Cambridge) and Adjutant- General (Garnet Wolseley) basically saw the JAG as a troublesome interferer in matters of military discipline. The Secretary of State eventually laid down that the JAG's legal advice be respected by the Horse Guards who could turn to the Secretary of State if they objected to that advice.

1996
June
Section 146 of the Criminal Justice and Public Order Act 1994 and the "Decriminalisation" of Homosexual Acts in the Armed Forces Prof G Rubin Criminal Law Review,
pp.393-405
Considers the legal implications of decriminalisation of homosexual acts in the Armed Forces. It suggests that homosexual-related criminal proceedings are still possible in respect of sexual harrassment, scandalous and disgraceful conduct, on the footing that comparable offences are chargeable under civilian criminal law. It looks at statistics published, including those prepared for government and parliamentary inquiries in the 1950s.

1996 Law on the battlefield APV Rogers OBE Manchester University Press    (revised, 2004)
An outstanding book on a complex and unique area of the law. Very relevant to military lawyer, soldier, academic and student alike. Joint winner of the 1997 Paul Reuter Prize for outstanding work in the field of humanitarian law. This is an updated (2004) edition.

January 1996 ROE In Multi-National Land Operations A S Paphiti Dutch Military Law Journal, at page 1
Multi-national operations required a new and challenging approach to conventional national ROE, which differed from nation to nation. Since domestic armies are now so small that unilateral action is virtually impossible, save for one or two notable exceptions, multi-national operations are the only realistic alternative to ensure future world security. Follow this link to apply for a copy.

1994 The Status of the Judge Advocate General of the Forces in the United Kingdom Since the 1930s Prof G Rubin Revue de Droit Militaire et de Droit de la Guerre, Vol.XXXIII,
pp.243-271
Now overtaken by events since 1996, but still of interest and relevance as a comparitor. The paper considers the changing constitutional status of the JAG from the 1930s to the 1950s, against the background of the Oliver (1938) and Lewis (1949) reports on military justice and military law. It notes the relationship between pre-war public controversies regarding his role and the post-war transfer of his political accountability from the service ministers (excluding Admiralty) to the Lord Chancellor. The history of the hiving off of the Military and Air Force departments of the JAG's Office to separate service legal corps and the debate over the creation of a statutory appeal court from courts-martial (created in 1951) are discussed. The impact of the war experience 1939-45 still awaits its historian of military law
.

December
1994
The Legal Education of British Army Officers, c.1860-1923 Prof G Rubin Journal of Legal History, Vol.15, No.4,
pp.223-251
As part of the process of professionalising the career of Army officers after the inadequacies exposed during the Crimean War, training in military law was significantly expanded and improved. By 1875, military law was taught to officers seeking promotion, to officers at Staff College, to other officers on a continuing education basis and finally to Sandhurst cadets. The article discusses contemporary military law teachers, sources and publications, including the origins of the first Manual of Military Law published in 1884, Wavell's Staff College syllabus in 1909, an LSE commercial law course for officers before WW1, the impact of the war, and the educational role of the Military and Air Force Department(created 1923) of the JAG's Office.

1994 The Judiciary and the Establishment of the Courts-Martial Appeal Court in 1951: A Scottish Dimension Prof G Rubin Juridical Review, Vol. 39(N.S.), Part 3,
pp.306-313
Prior to the the creation of the Courts-Martial Appeal Court in 1951, civil servants and ministers considered whether the "idea of a Scottish soldier in a Scottish regiment, court-martialled in Scotland, having to go on appeal to the (English)Court of Criminal Appeal, would be acceptable to Scottish ministers or public opinion". Looking at contemporary Cabinet and Lord Chancellor's Department records, the article explores this departmental debate.

1 May
1992
Assistance to the Civilian Population: the development and present state of international humanitarian law. Denise Plattner International Review of the Red Cross
at p.249
Although an old article, still a very useful one which examines, inter alia, the regulation of assistance in a non-international armed conflict. This article is available on-line from the ICRC website (click on Reference title).

1992 Mutiny: A History of Naval Insurrection Leonard F. Gutteridge U.S. Naval Institute Press and also
Ian Allen, Publishers, Surrey
The further exploits of Vice Admiral William Bligh. This British naval historian documents the several mutinies in which Bligh was involved, including Spithead.

Oct 13, 1989 Death & Injuries in The Armed Forces Diana Brahams New Law Journal,
at page 1371
Subtitled "May a soldier ever disobey a legal command", the article looks at commands which, although not manifestly illegal, ignore serious and well documented risks to safety. It makes reference to injuries occasioned during training, looks at the level of the duty of care and the defence of obedience to superior orders.<
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Dec 1988 Military Command And The Law of War Lt Gen Edwin Stettler Army Legal Corps Military Law Quarterly,
at page 1
Former Commander HQ Army Corps of Switzerland. Text of an address given to the 25/26th International Courses on the Law of Armed Conflict. Examines the relationship between Command and The Law of War under three headings: the legal order, the operational order and the ethical order. Also examines the role of the media. Very interesting perspective from an operational commander.

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