Aspals Reading List - 2007

Military Legal Issues - 2007

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Date Title Author Reference
December 2007 Civil Responsibility for Gross Human Rights Violations - The Need for a Global Instrument Sascha-Dominik Bachmann Social Science Research Network
Pretoria University Law Press
This monograph provides a detailed description and analysis of the existing possibilities of establishing civil liability for gross human rights violations at the regional and international scale and concludes with the recommendation that only a merged system of the existing means of human rights protection will ensure effective human rights protection at a global scale. /FONT>
Summary by SSRN.

December 2007
War Crimes and Trials: A Historical Encyclopedia, from 1850 to the Present Elizabeth M. Pugliese (Editor), Larry Hufford (Editor) ISBN-13: 978-1576078907
This comprehensive reference offers the first encyclopedic treatment of the history of war crimes, war crime trials, and war crime law from the mid-19th century to the present. Andersonville. Nuremberg. My Lai. Rwanda. The names haunt us as reminders of unspeakable evils committed under the banners of war. Sadly, throughout history, atrocities against civilians and prisoners have been an almost inevitable part of war, with the pursuit of those responsible providing a wrenching denouement to an era of conflict. "War Crimes and Trials" is the first comprehensive reference to focus exclusively on wartime atrocities and the attempts to bring those responsible to justice. Filled with hundreds of alphabetically organized entries, it encompasses the entire scope of this all-too-prevalent by-product of war, with expert analysis of events from all parts of the globe and all kinds of armed conflicts. "War Crimes and Trials" ranges from 1850 (when the need to confront war crimes was first acknowledged internationally) to the coming-of-age of war crime adjudication in World War II to the most recent trials and legal developments. Entries examine the evolution of laws and treaties addressing war crimes; important war crimes trials; notorious war criminals and the people who confronted them; and the full spectrum of relevant legal and political issues, including the viability of the International Criminal Court and the problems of reconciling systems of national and international law.
Synopsis Amazon.

December 2007 UK Army in Iraq: Time To Come Clean On Civilian Torture Kevin Laue and Adam Lang of REDRESS The Redress Trust
October 2007
The Redress Trust (REDRESS) is an international NGO which exists to assist individuals and communities who have suffered torture. In this context, and as part of its UK programme, we have been concerned by reported incidences of ill-treatment and torture committed by UK forces against Iraqi citizens. One of the most appalling incidents resulted in the death of Baha Mousa some thirty-six hours after British soldiers took him into custody in September 2003. When litigation commenced in the UK in 2004 on behalf of his family, demanding that there be a proper and effective investigation into this and other cases with a view to reparations, REDRESS was the first and initially only NGO involved which made a third-party intervention supporting the claim. Subsequently this case, known as Al Skeini v. SSD , reached the House of Lords (Appellate Committee) via the Court of Appeal, and at all stages REDRESS continued to be involved, joined by a growing number of other human rights organisations. The final decision on 13 June 2007 was a landmark in human rights jurisprudence, ruling as it did that the reach of obligations under the European Convention on Human Rights extends to Iraq, as does the UK Human Rights Act, in respect of what happens to people in the custody of UK soldiers there. In parallel to the Al Skeini litigation making its way through the civil courts, the UK authorities finally brought a number of soldiers before a court martial in September 2006 on charges relating to the September 2003 tragedy. This case, R v Payne and others, lasted more than six months and ended in the acquittal of all concerned, apart from one soldier who pleaded guilty to one charge of inhuman treatment. What both the civil claim and the court martial revealed should give rise to considerable concern for anyone interested in the UK's reputation for upholding international human rights standards. This Report seeks to highlight some of these concerns, focusing on key aspects of the UK Army's procedures for dealing with detained civilians, particularly during the period when the fighting against Saddam's forces officially stopped and the hand-over to the Iraqi authorities took place: 1 May 2003 to 30 June 2004. There is also an analysis of the Williams case and the "Breadbasket" case.
Summary by Redress.

November 2007 Confronting the Mortal Enemy of Military Justice: New Developments in Unlawful Command Influence Lieutenant Colonel Mark L. Johnson The Army Lawyer
June 2007, p. 67
The past term brought three important cases from the Court of Appeals for the Armed Forces (CAAF) to the area of unlawful command influence.1 They serve as a reminder that unlawful command influence is still "the mortal enemy of military justice," and that all military justice practitioners must be vigilant to prevent even the appearance of impropriety in this area. These cases also illustrate once again that the CAAF is willing to address issues of unlawful command influence with severe and even drastic remedies, including setting aside the findings and sentence with prejudice. Command interference, while not generally a problem in UK military prosecutions in the past, has occasionally been attempted and fiercley resisted.
Summary by Aspals. from article header

September 2007 Military Justice: Cases and Materials 2007 Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan Lexi Nexis
ISBN: 1422417107
This new book engages the key issues and fundamental challenges of military justice. With prosecutions arising from the abuse at Abu Ghraib to ongoing cases alleging atrocities against civilians in Iraq, as well as courts-martial of uniformed war resisters at home, the military justice system now has a prominence unmatched since the Vietnam era. This higher profile for courts-martial, combined with the difficult and fundamental legal issues raised by the military commissions, suggests that military courses will now be in great demand. This casebook provides the text for such a course. Its coverage of the U.S. court-martial and other national and international systems of military criminal law provides a framework through which students can explore the role and operation of military justice within a democratic society. In an era of worldwide deployments multi-national operations, and global terrorism, this book illuminates the interconnectedness of military justice systems through a far-ranging collection of judicial opinions, statutes, regulations, commentaries, and scholarship. While the materials presented draw heavily from the United States, most chapters also present materials from other jurisdictions to enhance students' appreciation of both the unique American experience and the availability of alternative approaches to military discipline, accountability, and punishment.
Summary by Lexis Nexis

June 2007 Justice for all Matthew D'Arcy Defence Management Journal,
Issue 37, p16
Mtthew D'arcy interviewed the Judge Advocate General, who ardues there is clearly a strong case for a separate legal military system for UK personnel. For Judge Blackett, it would seem that while the military legal system is not without its faults, it is the best way to deliver justice to Armed Forces personnel worldwide. Incorporating the whole of the English criminal law, the Military Justice System provides the Armed Forces with the ability to prosecute in accordance with the principles of civilian law at the same time as being able to deliver justice in accordance with their special requirements. Judge Blackett has also suggested that there are now sufficient procedures in place in order to avoid potential corruption from commanding officers. For Judge Blackett, while lessons can be learned from a recent court martial concerning torture in Iraq, much of the criticism aimed at the system as a whole is not balanced and is uninformed.
Summary extracted by Aspals.

May 2007 The Protection of Cultural Property in Armed Conflict (Cambridge Studies in International & Comparative Law) (Hardcover) Roger O'Keefe Cambridge University Press (14 Dec 2006)
Charting in detail the evolution of the international rules on the protection of historic and artistic sites and objects from destruction and plunder in war, this book analyses in depth their many often-overlapping provisions. It serves as a comprehensive and balanced guide to a subject of increasing public profile, which will be of interest to academics, students and practitioners of international law and to all those concerned with preserving the cultural heritage.
Summary by Amazon

May 2007 Essays on War in International Law Christopher Greenwood (Author) Cameron May (15 Sep 2006)
The essays contained in this volume deal both with the law concerning resort to force (jus ad bellum) and the law which regulates the conduct of hostilities once the decision to resort to force has been taken (jus in bello). The collection looks at Iraqi invasion of Kuwait in 1990 and the shift towards the interpretation of decisions of the Security Council rather than the reliance on the law of self-defence in assessing the legality or illegality of a state's resort to force. Also addressed are questions of whether international law permits the pre-emptive use of force and humanitarian intervention. The collection also contributes to the debates surrounding the law on the conduct of hostilities (the laws of war, properly so called), including intense debate over whether nuclear weapons could ever lawfully be employed, whether there is a role for belligerent reprisals in modern international law, the system for the prosecution of war crimes and the duties of the belligerent occupant.
Summary by Amazon

Spring 2007 Torture and Incompetence in the 'War on Terror' Professor Adam Roberts Survival
vol. 49 no. 1, Spring 2007,pp. 199"212
It has taken over five years of the disastrously mismanaged 'war on terror' for the US to begin to accept certain conclusions about the status and treatment of detainees that should have been clear from the start. A critical turning-point was the decision of the US Supreme Court in June 2006 in Hamdan v. Rumsfeld, which at last recognised that some provisions of the Geneva Conventions " in particular those in their common Article 3 − applied to detainees in the 'war on terror'. The US change of policy following this decision in 2006 is significant but still incomplete. The Military Commissions Act 2006 denies habeas corpus rights to detainees who have not been charged with any offence. The author incisively reviews two books: Torture and Truth: America, Abu Ghraib, and the War on Terror by Mark Danner (New York: New York Review Books, 2004); and The Torture Papers: The Road to Abu Ghraib by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005).
Summary by Aspals

April 2007 What are the relevant legal principles relating to the responsibility of companies and CEOs for violations of international criminal law? Chatham House International Law Discussion Group session Word Document
23rd February 2006
A summary of the Chatham House International Law Discussion Group session on Thursday 23rd February. The Speakers were Anthony Dworkin, Executive Director of the Crimes of War Project and Hakan Friman, Visiting Professor at University College London and former Associate Judge of Appeals in Sweden. The meeting was chaired by Elizabeth Wilmshurst and was attended by lawyers, academics, and representatives of governments and civil society. As early as the Nüremberg trials, prosecutors attempted to implicate German industrialists in indictments for "crimes against peace". Justice Robert Jackson, Chief Counsel for the United States at Nüremberg, said in a speech made during the trial of Gustav Krupp: "It has at all times been the position of the United States that the great industrialists of Germany were guilty of the crimes charged in this Indictment quite as much as its politicians, diplomats, and soldiers." After Nüremberg, there followed a series of landmark "industrialist trials". These did not involve allegations of crimes associated with the crime of aggression, as in Nüremberg, but resulted nevertheless in convictions of other war crimes for direct and indirect involvement of the accused.
Summary by Aspals

April 2007 Military Training and Children in Armed Conflict: Law, Policy and Practice (2005) Dr. J. Kuper 1 Dec 2006
During armed conflicts " such as those in Iraq, the former Yugoslavia, and Rwanda − public attention is repeatedly caught by images of children, both as civilians and as soldiers. Those conflicts, like so many others, are vivid reminders that where there is armed conflict there are also, almost always, children. Soldiers and officers fulfil many roles in relation to such children " sometimes as combatants, sometimes as humanitarian workers, sometimes as protectors, and/or sometimes as enemies and abusers. This book aims to address three main questions: what are the obligations of officers of national armed forces in relation to children, either civilians or combatants, whom they or those under their command may encounter while participating in situations of armed conflict? How realistic and achievable are these obligations? How can compliance with them be encouraged, monitored, and/or enforced? The book examines these questions in the context of military training. It is intended for use particularly by those involved in training of national armed forces, including officers themselves, and members of governments, non-governmental organisations, and inter-governmental organisations. It contains examples of actual training materials that can be modified for use in different countries and contexts.
Summary by Dr. J. Kuper

January 2007 "England Does Not Love Coalitions" Does Anything Change? Charles Garraway International Law Studies, Vol 82
Modern history is full of talk of coalitions. The most relevant here is that of the "United Nations" —not the modern entity, but the group of countries that came together in the 1940s to stand up to tyranny and fascism. That metamorphosed into the North Atlantic Treaty Organization (NATO) alliance where the need to hold the Communist bear in check outweighed the "distinctive principles" of the different countries involved. The collapse of the Soviet Union and the end of the Cold War has led to the balance shifting and more emphasis now being on the "distinctive principles" rather than the common purpose. It is the new World Superpower that now states that it has no love for coalitions. Joseph Fitchett of the International Herald Tribune writing in 2002 in European Affairs, talks of "[t]he dismissive attitudes that have recently seemed to prevail in Washington toward NATO, ranging from benign neglect during the Afghan campaign to forthright dislike for coalition warfare in the comments of some Pentagon officials." The author considers coalitions are a necessary evil when the interests of the differing parties combine sufficiently to outweigh the differences in the principles.
Summary extracted by Aspals

January 2007 "Competing Legal Issues: A European Viewpoint Professor Charles Garraway Conference Report, Seventeenth Annual Strategy Conference Carlisle Barracks, Pennsylvania, April 11-13, 2006    Etracted article
Full publication
pp163 et seq
Robert Kagan referred to the "transatlantic divide" and sought to set it in a historical context. The question he asks is whether the point has now been reached where, in military terms, the United States will do the fighting and Europe the cleaning up. Is it correct to argue that the European nations are now so bound by constitutional and other legal constraints that they cannot effectively contribute to high intensity conflict? Is the increasing emphasis on the law in its relation to military operations justified or is it an attempt to bind the powerful Gulliver with Lilliputian cords? Professor Garraway looks at those areas of law where there is dispute or disagreement between the United States and Europe and examines exactly where those disagreements are in the hope that this may generate a debate and contribute to the resolution of these disagreements.
Summary extracted by Aspals

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