The Status of the Legal Advisor to the Armed Farces: His Functions and Powers

• Author: By Brigadier General Dov Shefi
• Pages: 05

1. PREFACE

   The necessity for the armed forces TO have access to legal advice both in wartime and in peace, regarding the application of the laws of war. stems from a number of different causes.

   First. the prolific development of the laws of warfare since the Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field and their great complexity require study, guidance, and a considerable degree of expertise. This issoparticularlysince thelawsofwarasanholearenotalwaysclear or acceptable to ail nations in the same degree. since they consist partly of rules of customary international law and partly of conrentionalruleswhiehonlr bindstateswhicharepartiestatheparticular convention concerned.

   Secondly, in addition to this lack of clariti in the laws of war, the defense of obedience to superior orders has been drastically curtailed. Only in very exceptional cases will a soldier who has committed a breach of the laws of war be able to rely an the plea that obedience to an order of commander or superior should exempt the soldier from responsibility for his or her actions. The soidier. under

   * The o~inionr and eanelus~ans exomred in this ~ r t i ~ l e are rhore of the aurhar and

   da not necessarily iepie~enr the w&ur of the Judge Advocate Generavr School. the Deparrment of the Army m y ather agency of the Cnited Sr~teigovernment, or an!goveinmenfa1 sgeneyaf the Slate of Israel.

   Thi(article,~i.aipreparedandivbmitted brrheavrhartarhelxconfereneeofth~ lnterna~i~nsl

   SoeMg of the hlilitary Lar and the Laws of War which WBB held I" Lausanne I" September 1982

   I19

   the modern concept of the laws of war, is no longer a robot, but is required to exercise the requisite knowledge and judgment, 10 as to distinguish lawful from unlawful orders

   Thirdly, under battle conditions, the soldier is usually more preoccupied in fulfilling the task of insuring military success than in carrying out the law and camplying with the rules of land warfare including international humanitarian lam - It is in the preservation of the delicate balance between the requirements of the army and compliance with humanitarian law applicable in wartime. and in insuring awareness by combatants of thelaasafwarfarecai-eringhundredsafrules,thatthelegaladviser

   has a vital function

   The necessity for legal advice for the purposes of issuing orders. and for instruction and propagation of the laws of warfare was impliedly recognized in the 1907 Hague Conventions and the 1949 Geneva Conventions The obligation to appoint a legal adviser to the armed forces was specifically imposed by Section 82 of the First Protocol of 1977 to the Geneva Conventions.

   11. ISTERNATIONAL CONVENTIONS

   Art~cle

   IoftheHagueConrention on theLa~,,sandCustomsafWar on Land, 190i. imposes an obligation an the contracting powers to is~ueinstruction~ ratheirarmedforcesinaccardancearth the Repu-1ationsrespectingtheLawsand CustomsofTT'aron Land annexed to the Convention This provision of the Convention reads as follows: "The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land. annexed to the present Convention".

   A provision in the Same vein is to be found in Article 26 of the Gene\& Coniention regarding the Amelioration af the Condition of Soldiers Wounded in Armies in the Field. 1906. This not only imposes the obligation 10 iswe appropriate instructions, hut also to take necessary measures to acquaint military personnel with such instructions, with the object of bringing them to the notice of the individual. In the words of the Article: "The signatory gmernments ahali take the necessarr steps to acquaint their troops. and particu- Green, ThrRoirvlLrgniAdliseimthrAr.rnrdFairrs 7Int'lY B ofHmanRiebrr

   154 1551lS7:l120

   19831 STATUS OF THE LEGAL ADVISER

   lady the protected personnel with the provisions of this Convention and to make them known to the people at large."2

   The four Geneva Conventions of 1949 add further detail to the provisions of Article 26 of the 1906 Convention, by imposing an obiigation toincludetheprovisionsoftheCani,entioninprogramsofmilitarr instruction and, for the first time, requiring their inclusion as far as possible in programs of civilian instruction. The object of these requirements is to disseminate infarmatian concerning those provisions as widelpas possible and to bring them to the notice of the entire population, both civilian and military. Article 47 of the Geneva Convention of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field provides:

   The High Contracting Partiesundertake, in timeof peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and in particular to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces. the medical personnel and the chaplain^.^

   Article 83 of the First Protocol Additional to the Geneva Canventmns relating to the Protection of Victims of International Armed Conflicts, 1977, does not make any essential change ~n what is provided in the Geneva Conventions themselves regarding the dissemination of and instruction in those Conventions. This Article provides:

   (1) The High Contracting Parties undertake, in time of peace as in time of armed conflict. to disseminate the Convention and the Protocol as widely as possible in their respectivecountries and, inparticular. to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population; so that those instruments may

   'Sei ~ S Y identical text ~n Article 27 of the Geneva Conventmn far the Amelloratm

   of the Condition of the Wounded and Sick I" Armies I" the Field. 1529

   %The identical pmvism appears ~n Ariiele 48 I" the Geneva Cornentian for the Amelioration of the Condition af the Wounded. Sick and Shipwrecked Members af Armed Forces at Sea. 1515, 8" .4irricle 127 of the Genera Convention relative ta the Treatment of Prisoners a1 War. 1945, and in Article 114 of the Geneva Conwntmfar the Protection a1 Cirilian Persons in Time af Xar. 1545 In the Third and Fourth GenevaC~ni'entims. ~ p r o r i m n has been addedaherebi the militaryarother authar-itu that undertakes responsibilityfor prmaneri of war or for protected persanr, under the Fourth Canvenflon, must have aceeas fu the text ai the Convention and ieceiie Inrtruetmn In Its p'0"islo"s.

   (2) Any military or cixilian authorities who. in time of armed conflict. assume responsibilities in respect of the application of the Conventions and their Protocol shall be fullr acquainted with the text thereof.

   111. PRACTICE: DISSEMINATION

   The above prorisions of the Hague and Geneva Conventions have beenapplied byvariousstateaindifferentaays.such asthepublication of the laws of war in manuals. preparation of teaching programs, advice to commanders as to dissemination and instruction. and advice on operative and tactical matters.4

   For exnmplc, the Brirish War Office has published the Manual ofMilitarv Lam, Part 111, The Law of War on Land, 1968. conmting af the various Conventions on the laws of w8r with explanatory notes. Similarly, the land. air. and naval forces of the United States have published manuals on the laws of war. the best known being Field Manual No. 27-10, The Law of Land Warfare, 1966. Likewise. in Israel, there was published ~n 1956. by the Milltar? Advocate's Office, a Guide for Legal Officers serving on the Military Govern-mentof administered territories. intended for legal advisers in these territories.

   In Israel. dissemination of the lams of war...