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Military Legal Issues - 2003


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Date Title Author Reference
26 Jan 2004 Judicial Mutterings - Pt 2 David Dabbs New Law Journal, 27 June 2003
The continuing difficulty for the legal practitioner is to know when the line has been crossed between "mere" robust judicial comment, made in furtherance of that function, and overt displays of apparent bias or impartiality, and thus when it would be appropriate to ask a judge to recuse himself. What if the advocate appearing before the tribunal sits regularly as a part-time tribunal chairman? These are very material considerations and, from a victim's perspective, would be relevant to courts-martial defence advocates who also sit as part-time judge advocates. David Dabbs asks many pertinent questions in this, his concluding article. The analysis of Lawal v Northern Spirit Ltd [2002] EWCA Civ 327, [2002] All ER (D) 442 (Oct), is particularly apposite. The dissenting judgment of Pill J and the concurring judgment of Lord Phillips MR make most interesting reading. Could the case be headed for Strasbourg?   Source   Aspals.   

25 August 2003 Defences in International Criminal Law Elies van Sliedregt The International Society For The Reform Of Criminal Law. 17th International Conference
Discussion on the topic of war crimes was for many years solely concerned with the defence of superior orders, but in recent years, it has expanded. Since the ICTY ruling in the case of Erdemovic, the defence of duress has received an increasing amount of attention, as did the defence of mistake of fact after a NATO bomb had hit the Chinese embassy. The author looks at the defences of duress and superior orders and notes that the ICC Statute allows for the development of a more comprehensive and general system of criminal law. And as the ICC claims to be a criminal court and not a (military) tribunal, it is only logical that its list of defences contains that of superior orders.   Source   Aspals.   

19 Dec 2003 Rescuing the ruins of the law from the rubble Nicholas Stewart QC Counsel, December 2003
at p. 18
After the shadow of war, atrocities and torture comes justice. The author looks at the rebirth of the Iraqi legal system which, he believes, has survived more than three decades of oppression and the recent conflict better than many other countries.  Source   Aspals.   

28 Oct 2003 Judicial Mutterings - Pt 1 David Dabbs New Law Journal, 20 Jun 03
at p. 957
The author argues that the test for bias in Medicaments can be applied effectively to recuse a judge at first instance. He looks at the distinction between actual and apparent bias and what the applicant has to prove.The display of bias by any tribunal - or the anticipation of it - is offensive to natural justice; and under article 6 of the ECHR. The Medicaments case provides a mirror into which a judge, suspected of partiality, should be invited to stare, even if momentarily. This is an interesting article, but does not examine the perspective of the victim in any case where the judge is biased against the Crown. Article 6 would not apply to a victim.  Source   Aspals.   

19 Oct 2003 Advocacy before International Criminal Tribunals Geoffrey Nice QC The Inner Temple Year Book, 2003/2004
at p. 97
Master Nice describes some of the chilling crimes tried before the ICTY. He concedes that the courts are "necessarily and properly" political to a degree and looks at the difference in approach of the court (where judges think there is nothing wrong with contacting the Chief Prosecutor on a personal basis about a case) to what one finds in a common law jurisdiction. Master Nice is the principal trial attorney in the prosecution of Slobodan Milosevic.  Source   Aspals.   

20 Aug 2003 Military Commission Instructions Sourcebook National Institute of Military Justice NIMJ
Second book concerning military commissions. The 258-page Military Commission Instructions Sourcebook contains all eight Military Commission Instructions issued by the Department of Defense on April 30, 2003, along with discussions of each by military, criminal and law of war experts, as well as comments submitted to DoD in response to the draft of what became Military Commission Instruction No. 2 on Crimes and Elements, pertinent 1998-99 United States proposals on Crimes and Elements for use by the International Criminal Court.
The Sourcebook is available from NIMJ for $25, postage included. Cheques should be made payable to NIMJ, and should be mailed to Eugene R. Fidell, 2001 L St., N.W., Second Floor, Washington, DC 20036.
NIMJ's earlier Annotated Guide to Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (2002) is available from LexisNexis Matthew Bender.    E Fidell, Esq.   

16 April 2003 Courts-martial, Discipline, and the Criminal Process in the Armed Services His Honour Judge James W. Rant CB QC
This is a comprehensive guide to the practice and procedure used in the disciplinary processes in the armed forces. It covers investigation, custody, summary trial, courts martial and the relevant appellate procedure, also describing the powers of punishment available to each service authority or court. The sources from which the book is drawn are diverse and complex, and are thus not easy to collate and integrate, but the book puts all the relevant material together in a format that is accessible and easy to understand, with full references throughout to the primary and secondary legislation and Queen's Regulations. The authors have set out to provide an easy-to-use, authoritative reference guide for practitioners and members of the armed forces, and the book should also be an invaluable help for anyone interested in this subject, whether for research or pure academic purposes. It will also be of great assistance to those who are new to the system but need quickly to acquaint themselves with it.  Summary by   Amazon.   

8 April 2003 Why we must fight with one hand tied behind our backs David Pannick, QC The Times
8 Apr 03
David Pannick is one of our leading lawyers in the UK. In this article he considers that, in the heat of the fighting in Iraq, it is worth pausing to reflect on the important role now played by international law in governing the conduct of war. Technological developments have made the scope of the Geneva Conventions inadequate. Changes in the nature of warfare have made less relevant some of the fundamental legal distinctions: between war and other forms of armed conflict, and so between armed forces and civilians.  As ever, a worthwhile read from Mr Pannick.  Summary by   Aspals.   

8 April 2003 The battle not to fight Robert Verkaik The Independent
8 Apr 03
The author asserts that the legal authority on which we are waging war on Iraq is suddenly no longer a question just for the academics. Two British soldiers have been sent home from the front after expressing concern that the lack of a second United Nations resolution meant that they had been asked to fight an illegal war. He argues that the prospect of being called to account for the deaths of innocent civilians can play on the minds of servicemen who have spent weeks in the desert waiting for their Government to throw them into the front line. Some interesting views. 

20 March 2003 Lawyers debate the rights and wrongs of sabre-rattling Victoria MacCallum Law Society Gazette
Vol 100/11, at p. 19
This brief article explores some of the arguments for and against military action in the Gulf. Worth reading. 

20 March 2003 Firms warned to hold fire as staff face call-up to Gulf Gareth Brahams and Katherin O'Brien Law Society Gazette
Vol 100/11, at p. 18
With the imminent threat of military action in the Gulf, law firms face losing their staff. An employer cannot refuse to release employees who have been served with their call-up papers, but they can apply to an adjudication officer to have the call-up deferred or revoked.  Summary by   Aspals.   

20 March 2003 Solicitors armed with skills for a brief at the frontline Paula Rohan Law Society Gazette
Vol 100/11, at p. 18
Law and the territorial army can be mutually complementary. Experiences in the army can make you a better lawyer, although it is not all fun and games.  Summary by   Aspals.   

Winter 2002
The Disposition of Afghan War and Al Qaeda Prisoners Professor Edward F. Sherman Tulane Lawyer, linked from: NIMJ, (file in pdf format) 
at p. 8
Throughout American history, wars and armed con-flict have been accompanied by a clash between national security and individual rights. Confronted by what they considered to be grave threats to the nation, US presidents and military commanders have sometimes side-stepped the normal processes of law in the interests of defending their country and furthering the war effort. US courts have struck down some of those governmental actions, although sometimes only after the hostilities were over. Prof Sherman looks at the complex issues surrounding the detention of Afghan personnel and how they have been treated by the US justice system.   Summary by   Aspals.   
See also the American Bar Association "Enemy Combatants" Resolution; Approved by the House of Delegates on Feb. 10, 2003.   Acknowledgments to NIMJ

January 2003
Preemptive Military Action and the Legitimate Use of Force: An American Perspective Walter B. Slocombe Pre-emptive Military Action and the Legitimate Use of Force [Access Here]
No question has more preoccupied discussions of international law and international relations than that of the legitimacy and wisdom of the use of force. Moreover, it is a necessary qualification to the proposition that diplomacy is preferable to force that where vital interests, or at least conflicts over perceived vital interests, are at stake, and where willingness to provide inducements is not unlimited, diplomacy and negotiation are unlikely to succeed unless there is seen to be a real cost to refusal to compromise. The consequences that can be imposed by other means of pressure are puny compared to those of military force. The author focuses on two specific questions that have come to the fore in the face of fundamental changes in the international security environment since the end of the Cold War: (1) When is use of force justified? (Herein of pre-emption); (2) Who can legitimately decide on the use of military force? (Herein of unilateralism)
Summarised by Aspals

31 January 2003 Q&A: Reservists and money matters BBC Business News BBC Website
31 Jan 03
With 6,000 reservists now being called up for a possible war with Iraq, BBC News Online examines where that leaves their day jobs and the companies they are leaving behind. Link this with the previous article.   Summary by   Aspals

14 January 2003 Military call-up and the rules of engagement Jessica Learmond-Criqui Times
14 Jan 03
When the Secretary of State for Defence makes an order under Section 54(1) of the Reserve Forces Act 1996 to enable the call-up of reservists, what does this mean for bosses whose employees may receive a call-up notice? What are their obligations and can they refuse to release someone? What are the consequences of refusal? And what happens afterwards — must the reservists be taken back? Ms Learmond-Criqui is head of the employment, pensions, immigration and benefits department at the City law firm Altheimer & Gray.  Summary by   Aspals

January 2003 Homage to Theodore Ende Prof G R Rubin The British Army Review
N°128, at p.45
A light-hearted article which looks at the antipathy for service justice held by Mr Ende. He was described by one commentator as a "cadaverous sepulchral-voiced old retired estate agent, and unreconstructed Tory". He claimed he had been unjustly convicted by court-martial in 1943. The success in the case against Captain Boydell was reported as his first victory in his campaign to expose the legal flaws accompanying courts-martial. Although not a lawyer by profession, Ende gave every spare moment to studying military law and procedure. As with all Prof Rubin's publications, a well researched and informative read, which also happens to be thoroughly entertaining as well.  Summary by   Aspals

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