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Commentary - Legal advisers in armed forces
    [p.947] Article 82 -- Legal advisers in armed forces


    3340 The establishment of an army, its training, equipment and armaments has no other object than to prepare for the eventuality of armed conflict. If this arises, military operations must be conducted in accordance with the rules set forth in international treaties to which the Parties to the conflict are Parties, and with the generally recognized principles and rules of international law which are applicable to armed conflict (Article 2 -- ' Definitions, ' sub-paragraph (b)).

    3341 To this end Hague Convention IV of 1907 laid down in Article 1 that "the Contracting Powers shall issue instructions to their armed land forces which [p.948] shall be in conformity with the Regulations" that they had adopted. At least until the adoption of the 1949 Conventions it was primarily through the development of military manuals for the use of armed forces that the majority of military Powers implemented the injunction of the Hague Convention to instruct their troops. However, the events of the Second World War and the prosecutions which were instituted when hostilities ceased, showed the extent to which these efforts had been inadequate. Thus in 1949 the drafters of the Geneva Conventions devoted their attention to supplementing the 1907 rule (1) with a provision relative to dissemination (2), which in the present Protocol is reaffirmed by Article 83 ' (Dissemination). ' During the 1950s a new tendency emerged in some armies to supplement the written instructions with a group of qualified lawyers who were to lend their assistance. This initiative seemed particularly justified as in many cases military manuals do not restrict themselves to reproducing the texts of the international treaties and do not actually reflect these treaties. In all areas which are not governed by peremptory or uncontested rules of international law, they bear witness to the practices recognized by the State concerned, without assessing whether these practices will be recognized internationally. Whether a custom has been established in a particular sense is a question of fact, not one of the rules adopted by a particular State. (3)

    3342 Similarly, it must be recognized that even when limited to uncontroversial rules directly applicable by military commanders in the field, the law of armed conflict is becoming increasingly complex, detailed and extensive. Thus the Diplomatic Conference during its sessions from 1974 to 1977 added the 130 articles (not counting the Annexes) of Protocols I and II to the 429 articles (not counting the Annexes) of the Geneva Conventions of 12 August 1949 (in 1864 there had been 10 articles in all). Moreover, new texts are being adopted, for example on weapons. (4) Military commanders can no longer be expected to master the complexity of this law or the documents relating to it, in the same way that they have to master the art of exercising command over their troops. It is evident that a division of tasks is just as necessary in this field as in other sectors of military life.

    3343 The proposal to create a post of legal adviser to military commanders was made at the beginning of the preliminary discussions preceding the Diplomatic Conference. (5) following the suggestions presented during the two sessions of the Conference of Government Experts it was introduced in Article 71 of the draft presented by the ICRC to the Diplomatic Conference, in a much stronger form [p.949] than that of the article under consideration here. (6) During the Conference itself its usefulness was not contested. However, whether it was because of a concern that adequate personnel would not be available, or the possibility that legal advisers attached to the armed forces would be assigned supervisory functions which might affect the hierarchy which is indispensable for the proper functioning of military institutions, or whether it was simply the
    fear of being bound by unduly strict rules on this point, consensus was finally only achieved on a text which was considerably watered down as compared with the original proposal. (7)

    3344 Nevertheless, the obligatory character of the present provision was maintained. The word "ensure" is a term sometimes used in the Conventions; (8) it means that the Party in question must make sure that the task is executed. There is therefore no justification for thinking that the task itself might be optional. (9) To be more precise, Article 82 creates the obligation for the Parties to the Protocol to adopt all appropriate regulations to ensure that legal advisers are available to the armed forces. The fact that the conditions for the use and allocation of these advisers are regulated in particularly flexible terms ("when necessary", "at the appropriate level") does not in any way alter the fact that the creation of the post of legal adviser is obligatory. However, the content of the obligation and the extent of the measures to be taken can certainly vary from one country to another, depending on the importance of the role which these legal advisers are called upon to play. Some may wish to appoint these advisers at all -- or nearly all -- levels of command, while others intend to appoint them only at the headquarters of large units and at military academies, and still others only envisage their participation in exceptional situations. Nevertheless, the obligation for all Parties to the Protocol to create posts for legal advisers to the armed forces applies all the same. In fact, the Protocol even goes so far as to define in broad terms the qualifications which such legal advisers must possess, since they must be capable of advising, when necessary, the military commanders concerned, on the application of the Conventions and the Protocol, and on the appropriate instruction to be given to the armed forces on this subject. There is therefore an obligation for the Parties to the Protocol to ensure that these legal advisers, who are likely to be chosen from legal experts in military law, which all armies have available, get the appropriate training.

    [p.950] 3345 To summarize, the Protocol enjoins the High Contracting Parties to take certain measures to ensure respect for the Conventions and the Protocol (10) and in particular, to make legal advisers available to the armed forces for the purpose of giving appropriate advice in this respect. The conditions for the use of such personnel and the choice of the methods of training them are left to the discretion of the Parties to the Protocol.

    3346 Some of the reasons which underly this flexibility, particularly with regard to the conditions for the use of the legal advisers concerned, have already been indicated. It was necessary to avoid questioning the validity of an order from a superior whenever the legal adviser had not been consulted, and even to avoid putting into question the whole military hierarchy. It was also important to prevent the incorporation of legal advisers in the armed forces from weakening the sense of responsibility of military commanders, and from encouraging them to become totally disinterested in the rules of international law applicable in cases of armed conflict, on the pretext that this was the business of the lawyers, and not theirs.
    Such a result would be counter-productive. Although it is regrettable that in recent history military commanders have not always been concerned with the law of armed conflict as much as they should have been, the importance of the role which they have always played in the development and application of this law cannot be denied. (11) In many cases appropriate and correct conduct on the battlefield came first, to be followed by the formulation of the corresponding rule. Thus historically, the law of armed conflict was created largely in the heat of battle, and the weight and obligation of its implementation and development rests primarily on the shoulders of those who exercise military command in the field. To withdraw this fundamental responsibility -- which has always been that of military commanders -- from them, would undoubtedly have constituted a serious error, and the Protocol was careful to avoid this.

    3347 On the other hand, there is little doubt that a great many military commanders will be relieved by the introduction in their own headquarters or at a higher level, of legal advisers capable of elucidating for them the increasingly complex problems of the law of armed conflict. However, they must first be available, and some countries remarked during the Diplomatic Conference that they [p.951] did not have the means of training such specialists. It is a fact that, in the current circumstances at least, a thorough training in humanitarian law applicable in armed conflict cannot easily be obtained in the faculties of law of universities, if only because their programmes are already overloaded. (12) Apart from some countries where the armed forces already have a remarkable range of legal services at their disposal, (13) and consequently specialized schools where these lawyers are trained not only in disciplinary and administrative subjects, but also in international law, the majority of countries do not (or do not yet) have any such facilities, and will have to create them. This task could be undertaken in conjunction with Article 6 ' (Qualified persons), ' which enjoins the High Contracting Parties to endeavour to train qualified personnel to facilitate in particular the application of the Conventions and the Protocol. (14) There is no doubt that by means of Article 6 ' (Qualified persons), ' as well as by means of the present provision, the Protocol wishes to stimulate the training of competent personnel versed in the law of armed conflict. For the Parties to the Protocol this is a very real duty that rests upon them. The general opinion is that this result can be achieved by instituting a very close cooperation between lawyers (military magistrates, officer-lawyers, lawyers of competent ministries, university professors, and professors of the different military schools) and officers exercising command or responsible for the instruction of the armed forces. (15) It is also considered that a good military legal adviser should have some knowledge of military problems. Undoubtedly such an effort implies that certain matters will have to be clarified, for example, in the field of interpretation, preparation or making available of appropriate documentation, (16) participation in courses, [p.952] seminars, symposia and various exercises, (17) but there is nothing there outside the scope of military organization.

    3348 An apparently essential prerequisite for the implementation of Article 82 is the creation at every ministry of defence of a division or section, service or office, exclusively devoted to international law applicable in armed conflict. Such a service should be available to armed forces at all times, whether in peacetime or in time of armed conflict. Its first task would be to assemble a complete documentation of applicable texts (with appropriate translations) to develop, under the authority of the ministry on which it is dependent, an appropriate consultation system which would meet the necessary requirements, and finally it should attend to the recruitment and training of candidates.

    3349 The ' consultation system ' may vary, in particular according to the functions attributed to the legal advisers. Legal advice in the strict sense of the word is difficult to imagine in subordinate units. It is hardly compatible with the rapid decisions and action required at these levels if the units in question are to carry out such tasks as would normally be assigned them. On the other hand, it seems beyond doubt that the legal adviser could provide considerable and effective assistance for these units in the ' instruction ' of troops and commanding officers in closest contact with them, or even in the supervision of such instruction. For this purpose it would not seem unreasonable to envisage, if need be by delegating legal advisers attached to the division, the presence of such advisers up to a level relatively close to the fighting soldiers themselves, for example, at regimental level. In many cases the respect for the law of armed conflict depends ultimately on the conduct of the combatant himself, and on him alone. His direct superiors, already burdened with increasingly heavy duties, would perhaps be glad to be able to count on valuable assistance in this field.

    3350 As regards ' legal consultation in the proper sense of the word, ' this could bear on the preparation and development of plans, the choice of means, the determination of objectives, and the measures taken to achieve them. It is principally at the top command level -- which could be assisted by a real consultative group on the subject of international law -- and in large units, that legal advisers will be called upon to give legal advice which may influence the decisions of headquarters staff and commanders.

    3351 Consequently the consultation system created under Article 82 could take into account this double requirement: the introduction of legal advisers at levels relatively close to the troops, on the one hand, for the essential purpose of participating in their instruction, and on the other hand, in large units and at the top command level for the purpose of consultation in the true sense of the word, for the benefit of commanders and their headquarters staff.

    3352 As regards the ' recruitment ' of the personnel called upon to exercise the function of legal adviser in the armed forces, it seems there is a choice between two solutions. First, it is possible to opt for qualified lawyers, who would specialize, if necessary, in the law of armed conflicts. However, such lawyers would lack the essential military knowledge which they would still have to acquire. Another [p.953] solution therefore would be to use military officers and initiate them in the law of armed conflicts.

    3353 Whichever solution is preferred, it is important that the legal adviser devotes himself to his mission full time.

    3354 A schematic outline of these various possibilities leads us to examine from three different angles the problem posed by the introduction of legal advisers in the armed forces: role, position in the armed forces and selection.

    A. ' Role '

    1. ' In peacetime '

    3355 The legal adviser is essentially called upon to cooperate in the ' instruction ' of international law applicable in case of armed conflict:

    -- instruction in military academies;
    -- instruction of the headquarters staff of the unit to which he is attached;
    -- instruction of officers of units at lower levels;
    -- instruction of the troops, particularly in the context of operational exercises.

    2. ' In time of armed conflict '

    3356 The role of the legal adviser is a preventive one. It is concerned with the application and the respect for the rules of the law of armed conflict. For this reason the legal adviser may be called upon in particular:

    a) to give his ' opinion, ' even ' proprio motu, ' on the planned military operations or on operations already being executed;
    b) to provide ' expertise ' on particular problems (for example, the choice of arms);
    c) to ensure the ' functioning ' of the procedure of legal consultation, particularly with subordinate levels;
    d) to remind commanders of their ' obligations ' under the terms of Article 87 of the Protocol ' (Duty of commanders). '

    3357 Moreover, he may be called upon in particular:

    a) to cooperate in the ' training ' of assistant legal advisers who may be attached to subordinate units;
    b) to actively participate in the ' preparation ' of large-scale exercises, the development of plans for wartime operations, to give his evaluation of the legal consequences of their execution, particularly with respect to the methods planned and the means to be used;
    c) to encourage the use of legal ' consultation ' procedures and to assess their operation;
    d) to supervise the ' organization ' of instruction in subordinate units, and to assess the extent of the knowledge acquired;
    e) to ensure that the knowledge acquired is kept up permanently and that ' instruction ' on the subject of the law of armed conflicts is continually maintained.

    [p.954] B. ' Position in the armed forces ' (attribution, size, subordination)

    3358 For the purpose of this analysis it may be assumed that, by and large, the structure is similar in all armed forces.

    1. ' Level of attribution '

    3359 In general, it is considered that permanent postings for legal advisers should be limited to the following levels:

    -- the highest command of the army and its headquarters staff;
    -- commanders of lower units and headquarters, down to division level or the level of the independent brigade (both inclusive), for the land, sea and air forces;
    -- commanders of other units intended to operate separately from the rest of the army;
    -- area commanders (including those in occupied territories) and commanders of military bases and areas.

    2. ' Size '

    3360 Particularly in consideration of the tasks of instruction which may fall upon legal advisers, it would seem desirable to create in large units a small legal staff group composed of several officers, rather than being limited to a single expert.

    3. ' Subordination '

    3361 There seem to be two systems:

    a) ' Double subordination '
    The legal adviser is subordinate both to the commanding officer or to the chief-of-staff concerned, and to the legal service of the ministry of defence. This system simultaneously ensures the independence of the legal adviser (who thus has direct access to the ministry of defence), control over his activities by his professional superior, and some control of the matter by commanding officers. By granting the legal adviser a special status, distinct from that of the officers of the staff to which the adviser is attached, this system could have a negative effect on the atmosphere of trust which is essential for productive collaboration.

    b) ' Single subordination '
    While receiving general instructions from the service on which he depends, the legal adviser is subordinate only to the commanding officer or to the chief-of-staff of the unit to which he has been assigned. Taking into account his rank, if he is a soldier, his position would be exactly the same as that of the other officers of
    this unit or staff, but his professional superior would not have direct control over his activities.

    [p.955] 3362 As regards the rules on the chain of command subordination, whether there is double or single subordination, it may lay down either direct access to the commanding officer or the usual channels via the headquarters.

    C. ' Selection '

    3363 The selection of legal advisers for the armed forces raises the question whether a civilian or a soldier should be appointed to this post. There are advantages and disadvantages to both alternatives.

    1. ' Legal advisers are selected from military personnel '

    3364 There are two possibilities:

    a) ' From combatant military personnel '
    The choice can be either made from military personnel in active combat service, provided that they are exclusively assigned to their mission of legal adviser, or from reserve officers, or retired officers.
    ' Advantages: '
    -- an understanding of the military environment, its psychology, organization and problems;
    -- military training, enabling the person concerned to evaluate situations from a tactical or strategic, as well as from a technical point of view;
    -- an aptitude for making himself understood, for understanding and for creating the essential atmosphere of trust.
    ' Disadvantage: '
    -- difficulty in acquiring the essential legal expertise, particularly at the highest levels.

    b) ' From the personnel of the military judiciary '
    ' Advantages: '
    -- thorough legal training, especially in military law;
    -- authority is automatically conferred by virtue of membership of the military judiciary;
    ' Disadvantages: '
    -- this personnel is already overloaded with tasks of an administrative, disciplinary and penal nature;
    -- they are not very familiar with the law of armed conflicts.

    2. ' Legal advisers chosen from the civilian population '

    3365 With few exceptions, it is difficult to imagine finding specialists in international law, unless the choice is made from university professors, who by definition are civilians. At the highest levels of command in the army the presence of such experts may be necessary in any case. If they are called upon to advise on fundamental options which will have repercussions at lower levels, it is essential [p.956] that they have an uncontested authority in their professional field. Supported by aides who are drawn from the ranks of military officers, they should be capable of giving well-founded, balanced and authoritative opinions. However, this solution cannot always be adopted at all levels where the presence of legal advisers is necessary, for the simple reason that there are never very many of these experts. Moreover, what was said above regarding legal advisers chosen from military personnel, applies a contrario to civilian legal advisers:
    ' Advantage: '
    lawyers already specialized in the law of armed conflicts.
    ' Disadvantages: '
    -- a lack of knowledge of military matters;
    -- problems with making themselves understood in the military environment;
    -- relatively low level of credibility and trust, which is unpropitious for the instruction of combatant forces.

    3366 Once he has been trained and assigned to a unit or staff, the legal adviser should be available at all times, i.e., in time of peace as well as in time of armed conflict. For national liberation movements the obligation is limited to the period of armed conflict ("the Parties to the conflict in time of armed conflict").

    3367 ' In conclusion ' we emphasize that the legal adviser should be equally well informed regarding the development of operational plans and their execution (18) as regarding programmes of instruction, and
    if necessary, should be able to suggest alternatives to the proposed decisions. In no case should the legal adviser become the commander's accomplice by giving a semblance of legality to orders which in fact infringe the law of armed conflict. (19) No doubt he is expected to confer some degree of legal security to the military commanders concerned, but this is by complying with the rules, both with their letter and with their spirit. He could also make up for the failure of custom to fulfil its traditional role, when there is not enough time for customs to become established because events move too quickly, or when custom is not confirmed by practice. However, for this it is necessary that legal advisers of the different Parties to the Protocol have concordant opinions on most points, even on controversial questions. This goal should be relatively easy to achieve in the context of an alliance, which would not in the least reduce the value of the attempt. However the problem becomes crucial with regard to a potential adversary. A commander who considers that he has complied with the law of armed conflict and falls into the hands of an adverse Party whose ideas are diametrically opposed to those of the legal adviser whose advice he followed, may find himself being accused of a war crime. Lawyers should be enticed by such eventualities to continue the quest for harmonization which was accomplished throughout the Diplomatic Conference, at an international [p.957] level and with the support of their governments. If the opportunity arises, negotiations should take place to bring about interpretative agreements on particularly controversial points. This could be done in time of peace or during the armed conflict itself, pursuant to Article 7 of the Protocol ' (Meetings) ' or Article 6 /6 /6 /7 common to the Conventions.

    ' J. de P. '


    NOTES

    (1) [(1) p.948] Taken itself from the Hague Convention of 29 July 1899;

    (2) [(2) p.948] First Convention, Art. 47; Second Convention, Art. 48; Third Convention, Art. 127; Fourth Convention, Art. 144. However, it should be noted that the basic point of the Hague rule, as well as the obligation to inform the civilian population, was already contained in the 1906 Geneva Convention (Art. 26) and in the first Geneva Convention of 1929 (Art. 27);

    (3) [(3) p.948] See ' US Field Manual, ' op. cit., p. 3, para. 1; see also 8 Law Reports, p. 51;

    (4) [(4) p.948] See the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
    which may be deemed to be Excessively Injurious or to have Indiscriminate Effects of 10 October 1980 which entered into force on 2 December 1983; on 31 December 1984, 24 States were Parties to this Conventions;

    (5) [(5) p.948] ' See CRCE 1971, Report ', p. 29;

    (6) [(6) p.949] Article 71 -- Legal advisers in the armed forces: "The High Contracting Parties shall employ in their armed forces, in time of peace as in time of armed conflict, qualified legal advisers who shall advise military commanders on the application of the Conventions and the present Protocol and who shall ensure that appropriate instruction be given to the armed forces". See also ' CE 1971, Report ', p. 112, para. 579, and ' CE 1972, Report ', vol. I, pp. 183-184, para. 491; p. 189, paras. 4.126-4.127; p. 191, para. 4.144; p. 122, paras. 4.153-4.155;

    (7) [(7) p.949] For the discussion in Committee I, see O.R. VIII, pp. 390-393, CDDH/I/SR.37, and pp. 404-405, CDDH/I/SR.38. For the amendments, see O.R. III, p. 314;

    (8) [(8) p.949] See, for example, First Convention, Arts. 17 and 19, para. 2; Fourth Convention, Art. 18, para. 5;

    (9) [(9) p.949] Cf. ' Commentary I, ' pp. 176-177;

    (10) [(10) p.950] On the obligations of "conduct" or "means", cf. Report of the International Law Commission on the work of its twenty-ninth session, 1977, United Nations, General Assembly, 32nd session, supplement No. 10 (A/32/10), pp. 21-37;

    (11) [(11) p.950] By way of example we give an extract from the proclamation issued by General G.-H. Dufour, who was to be one of the founders of the Red Cross almost twenty years later, to his troops on 5 November 1847 in his capacity as commander-in-chief of the Confederate troops during the Civil War known as the "Sonderbund" war, in Switzerland:
    "Soldiers, you must emerge from this struggle not only victorious but also irreproachably. Future generations must be able to say of you: "When necessary, they fought valiantly, but they showed themselves to be humane and generous". Therefore I place under your care children and women, old people and ministers of religion. Anyone who lays hands on a harmless person, dishonours himself and defiles his flag. Prisoners, and above all, the wounded
    deserve your respect and your compassion, the more so as you have often found yourselves with them in the same camps. You shall not do any unnecessary damage in the campaign" (translated by the ICRC) (see O. Reverdin, "Le Général Guillaume-Henri Dufour, précurseur d'Henri Dunant", in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 958);

    (12) [(12) p.951] In this respect see the relevant remarks made by M. Bothe, then professor at Hanover University, "Methodological and Didactic Problems Involved in the University Teaching of International Humanitarian Law, Especially in Connexion with the 1977 Geneva Protocols", ' European Seminar on Humanitarian Law, ' Jagellonian University, Cracow, 1979, p. 61;

    (13) [(13) p.951] To give some examples: for the United States of America, see J.J. Douglas and T.E. Workman, "The Educational Program for the Service Lawyer", 31 ' Federal Bar Journal, Military Law Issue ' 1, Winter 1972, p. 7; also see J.J. McGowan, "Training in the Geneva and Hague Conventions: a Dead Issue?", in XIV-1-2 RDPMDG, 1975, p. 51, and infra ad Art. 87, note 20. In the Soviet armed forces, legal advisers have been reported to exist down to the level of a small unit, with the triple task of instructing, advising and supervising in all the fields related to the application of the law of armed conflicts. Facts relating to the Federal Republic of Germany concerning legal advisers for large units and professors of law attached to military academies can be found in K. Bayer, "L'administration de la justice militaire dans la Bundeswehr", XVII-4 RDPMDG, 1978, p. 584; see also D. Fleck, "The Employment of Legal Advisers and Teachers of Law in the Armed Forces", IRRC, April 1973, p. 173, and K.J. Partsch, "Rechtsberater in den Streitkräften -- Ein neuer juristischer Beruf?", in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 193. See also P. Verri, "Institutions militaires: le problème de l'enseignement du droit des conflits armés et de l'adaptation des règlements à ses prescriptions humanitaires", ibid., p. 603;

    (14) [(14) p.951] For the commentary on Art. 6, see supra, p. 92;

    (15) [(15) p.951] Cf. "Seminar on the Teaching of Humanitarian Law to the Armed Forces" (San Remo, 6-18 November 1972), IRRC, January 1973, p. 42 and particularly p. 51;

    (16) [(16) p.951] It should be noted in this respect that in some armies all provisions of international law applicable in case of armed conflict have been stored in the memory of a computer. A staff which has a terminal can thus instantly find all legal provisions applicable to a given problem (cf. J.J. Douglas and T.E. Workman, op. cit., p. 21);

    (17) [(17) p.952] See, by way of example, "Premier cours international sur le droit de la guerre pour officiers" ( International Institute of Humanitarian Law, San Remo), XVI-1 ' RDPMDG ', 1977;

    (18) [(18) p.956] (18) On this point, see the remarks of G.I.A.D. Draper in "The Role of Legal Advisers in the Armed Forces", ' IRRC, ' January-February 1978, pp. 6-17;

    (19) [(19) p.956] On the subject of the relationship between the legal services and the command structure, and on their implications during the trials following the Second World War, see R.J. Fontenot, "Development of the Staff Legal Officer's Responsibility under the Law of War", XIV-1-2 ' RDPMDG ', 1975, pp. 67-110;