Aspals Reading List

Military Legal Issues - 1998

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Date Title Author Reference
17 Nov
The Court Martial For The Army And The Royal Air Force Judge Advocate Pearson Practical Research Papers
A helpful guide for practitioners which explains the court-martial system and the make-up of the court, the legislation and the investigation of offences. We have four observations by way of emphasis:
(1) Once a case is referred to the prosecuting authority, it is they who decide whether to permit an accused to withdraw an election for trial (see ibid p.3);
(2) The right of a JA to refuse to accept a finding of the court does not, as far as we are aware, have an equivalent in the civilian courts, even when the finding is clearly contrary to the weight of the evidence (ibid p.6)
(3) Periods spent in close arrest must be taken into account when issuing the sentence of the court, which is normally prefaced by the words, "Having taken into account that you have spent x days in close arrest, we hereby sentence you, the accused, .....". (See ibid p.9 and also Buchanan & Falls).
(4) There is no Standing Civilian Court anywhere apart from Germany (ibid p.11)

November 6
The offence creating provision - time for a change? Judge Advocate Camp (1998) 148 NLJ
A critical look at what JA Camp considers the more arcane provisions of the Army Act 1955. While his criticisms of section 28(a) and section 63 appeal to us, the call for repeal of section 44 does not. This section deals with damaging and causing loss to public or service property and allows these matters to be dealt with as disciplinary offences, rather than as criminal offences.

1998 Courts-Martial Handbook HH Judge Rant Chancery Wiley Law Publications  
ISBN: 047197482X.
Major changes have been made to the Military Justice system. Practitioners and judges alike will derive great benefit from this book. The Judge Advocate General, Judge Rant, is himself a very experienced judge and criminal practitioner, having sat as a judge at the Central Criminal Court (Old Bailey) and currently, from time to time, in the Court of Appeal.

The First World War Military Executions: Some Legal Aspects Prof G Rubin Journal of the Royal United Services Institute, Vol.143, No. 1, pp.58-64.
The paper does not seek to "rewrite history according to today's values". Rather, it considers what LEGAL possibilities may have been open to the Crown/ Minister (who discussed the paper with the author) in 1998 over the demand for a pardon for those servicemen shot by firing squad in WW1. Thus, it addresses not only the provision for the exercise of the royal prerogative of mercy, but also looks at the provisions of the Army Act 1881 in respect to the quashing of legally flawed courts-martial, without passing judgment on whether sufficient evidence to justify quashing still existed at the time of the review. The paper does, however, note that the 1881 Act did not place a time limit on when a review leading to a quashing could occur and that later 19th century United Kingdom precedents existed for the subsequent quashing of CM findings ten years after the convictions. Whether a quashing after a gap of 80 years (and 43 years after the repeal of the 1881 Act) was a practical or credible as distinct from a legally theoretical possibility, was more problematic. Other countries have resorted to legislation (cf.,Andrew McKinlay's private members bill).  (An excellent article Aspals).
Published books by Professor Rubin:
(1 ) War, Law and Labour    (2) Law, Economy and Society: Essays in the History of English Law, 1750-1914   
(3) Durban 1942    (4) Private Property, Government Requisition and the Constitution, 1914-1927

No Hiding Place Judge Richard May Counsel,
at page 24
Judge Richard May is a judge at the International Criminal Tribunal for the Former Yugoslavia. This text is based on a paper given to the Bar Conference on 3 Oct 98. He looks at the creation of the Tribunal, its procedures, hearings in absentia, witness protection, and evidence and also looks at a comparison between the ICTY and the International Criminal Court.

25 Sep
The new International Criminal Court Nicholas Stewart QC (1998)148 NLJ,
at page 1381
Mr Stewart attended the Rome Conference as Chairman of the Bar Human Rights Committee and as a UN delegate of the Union Internationale des Avocats. He considers that acceding to US demands would have knocked the heart out of the court from the start and feels that US concerns are exaggerated.

Close Arrest for Military Defendants - Time for Change? Judge Advocate Camp [1998] Crim.L.R. ,
at page 646
Judge Advocate Camp discusses what he sees as the weaknesses in the current system and looks at the possibility of soldiers and civilians placed in close arrest having the right to apply to a J.A. for bail.

Current Leaflets and Publications Public Records Office Follow this link,
An indispensible site for anyone undertaking military research. Many useful related links. This ties in with the link on the Aspals Homepage to the historical records of courts-martial proceedings and details of the origins of the office of Judge Advocate.

18 September
Of courts martial and writs of habeas corpus
Sean Enright New Law Journal,
at page 1368
An interesting look at the court-martial system as it operated in Ireland towards the end of the troubles. Much has changed in the more than 70 years since then.

War Crimes Court Under Fire James Podgers The ABA Journal ,
at page 64
The reality of a functioning court is still a long way off. Rules of procedure and evidence have to be developed, as well as definitions of specific elements of crimes and, importantly, determining the matter of funding. A look also at the US attitude to the court.<

7 September
Court of Dreams David Rieff The New Republic,
at page 16
A cynical view of the effectiveness of the International Criminal Court. The author states "What was needed in the 1930s was not pacifism but a war against facism". He doubts the new court will prove a real deterrent to war criminals.

Monthly The Military Justice Gazette National Institute of Military Justice View it online at this link: NIMJ Gazette
A topical US publication which updates military lawyers on current issues. Well presented and worth reading.

Findlay, The Consequences: Remarks Given at the Judge Advocate General School, November 1997 His Honour Judge James Rant, CB QC, Judge Advocate General Vol 35 (No. 3) The Reporter,
An excellent article by Judge Rant, who advises the military to assess outside threats to the military justice system and to themselves take rapid steps to remedy matters, rather than having solutions enforced upon them by an outside authority whose understanding may not be sufficient to ensure that the system survives in an acceptable state.

7 Aug
Court-Martial - an independent and impartial trial? Part 2
Part 1 is at 148 NLJ 1156
Judge Advocate Camp New Law Journal ,
at page 1209
J.A. Camp continues his examination of the C-M system and offers some thought-provoking views on the sentencing process. He proposes that the J.A. alone should have the power to sentence an accused convicted of serious civil offences.

17 June
The Trials of War Lisa Gormley Solicitors Gazette,
at page 15
The setting up of the ICC is welcomed by Ms Gormley, but the question of who decides when to prosecute must be resolved.

June 1998 Taking Criminal Law Seriously Estella Baker [1998] Crim.L.R, at page 361
Discusses the increasingly cogent reasons for criminal lawyers to develop a greater regard for the influence of EC law upon criminal law and sentencing. This is of significance to UK military lawyers as well.

22 May 1998 Military Jurisdiction Over Civilians Judge Advocate Camp (1998) 148 NLJ, at page 759
A further article by Judge Advocate Camp in which he examines the jurisdictional difficulties of trying in England offences committed abroad by civilians subject to military law. He emphasises that civilians do receive as fair a trial before service courts as they would before a crown court.

May 1998 The International Criminal Tribunal for the Former Yugoslavia: the Erdemovic Case David Turns (1998) 47 I.C.L.Q., at page 461
A very valuable analysis of the fascinating Erdemovic (appeal) case and another opinion to be considered in the debate over whether the defence of duress to war crimes and crimes against humanity exists. There is also a postscript which deals with the aftermath of the decision.

April 1998 In-House Review of Court-Martial Proceedings Judge Advocate Camp New Law Journal,
at page 566
Findlay abolished the Convening Officer, yet his spectre lives on in the shape of the Reviewing Officer. An excellent article by Judge Advocate Camp, which highlights some important concerns.

11th Annual Waldemar A. Solf Lecture: The Changing Nature of the Laws of War

Follow this link for the Erdemovic (Tribunal) decision.
Her Excellency Judge Gabrielle Kirk McDonald

(Presiding judge of the Appeals Chamber for the Erdemovic appeal)
Military Law Review (US) [1998]
vol 156
at page 30
Judge McDonald looks at the way the ICTY has approached international and internal conflict in the Tadic case and offers her views on the role of third party nations supporting one of the parties to a conflict. She also examines the Erdemovic (appeal) case, on the issue of duress, and maintains her support for the common law approach of refusing to recognise the defence to the murder of civilians.

February 1998 After Findlay: A Consideration of Some Aspects of The Military Justice System. Ann Lyon Criminal Law Review, at page 109
Well balanced and well written article which corrects many misconceptions. Ms Lyon explodes the myth of so-called bias and shows just how much help and assistance is actually given to the soldier accused compared with his civilian counterpart. (Statistically, acquittal/conviction rates at courts-martial are about the same as in the civilian courts,

February 1998 Post-Trial Bail for Civilians in Military Courts - Time for Change. Judge Advocate Camp Criminal Law Review, at page 123
While not a frequent occurrence, civilians do in fact sometimes fail to answer a SCC summons and thereby avoid the jurisdiction.

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