Law Times

PAGE 4 NEWS January 12, 2009 • Law Times Military constricted by civilian law? BY RON STANG For Law Times WINDSOR — Is the military under threat from civilian forces, nationally and internationally, against carrying out its tradition- al role of warfare to protect West- ern democracies? Is it becoming increasingly neutered, as some military offi cials suggest, by civil- ian courts and tribunals, render- ing soldiers almost afraid to "fi re their weapons in self-defence?" Prosecutions against British soldiers during the Iraq War, le- gal action against U.S. soldiers at Iraqi prison Abu Ghraib, and military and civilian hearings over prisoners at Guantanamo Bay, even the Somalia Inquiry in the aftermath of the invasion of Iraq. What he found was that in certain military circles terms like "legal encirclement" (a Brit- ish phrase) and "lawfare" (an American one), kept being raised. For example, Admiral Lord Boyce, Britain's chief of defence staff , went so far as to say the military was "under legal siege" by forces of "political correct- ness" that could compromise military operations by "tortur- ous rules not relevant to fi ght- ing." Stateside, U.S. Air Force law- yer Maj.-Gen. Charles Dunlap is believed to have coined the term lawfare. "Is warfare turning into lawfare?" he wrote for Harvard's Carr Center for Human Rights some 2,000 claims for medical symptoms known as Gulf War Syndrome from the fi rst Gulf War in the early 1990s. Th en there are such extrater- ritorial legalities as Britain's sign- ing of the Rome Statute of the International Criminal Court. Soldiers now fear they will be hauled up on war crimes charges in the international arena. Wa- ters says it has become common on soldiers' blogs and Internet chat rooms to hear complaints about the ICC. "Men and women in uniform are worried about being second- guessed by investigators and a legal system not only ignorant of the situation on the ground in Iraq or Afghanistan but a system Men and women in uniform are worried about being second-guessed by investigators and a legal system not only ignorant of the situation on the ground in Iraq or Afghanistan but a system 'out to get them.' Report into the actions of Ca- nadian soldiers in the African country during the 1990s, might make some in the military think their traditional combat roles are being assailed. But that's hardly the case, ac- cording to University of Windsor law professor Christopher Wa- ters, who has long taught military offi cers in England and Canada — such as those at Nova Scotia's Pearson Peacekeeping Centre — and worked in post-confl ict areas like Kosovo and the Caucasus. "I've always been interested in the relationship between law and the military," he says. "More particularly, the way the military perceives law." Waters undertook his research Policy. "In other words, is inter- national law undercutting the ability of the U.S. to conduct ef- fective military interventions?" Th e United States' own 2005 International Security Strategy seemed to suggest as much. "Our strength as a nation state will con- tinue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism," it said. Th e legal challenges that are thought to be crippling the military even include thousands of individual claims by service and ex-service personnel against the British defence ministry for physical and psychological harm resulting from military con- fl icts going back decades, or the 'out to get them,'" Waters writes in the academic journal Defence Studies. In Britain, two cases in particular have "drawn hostil- ity," he says. One was against soldier Kev- in Williams for allegedly killing an Iraqi lawyer. While never convicted, his case bounced be- tween the military and civilian courts, and it was felt he was left "hung out to dry" for over a year. Th en there was the case against Col. Jorge Mendonca, charged after Iraqi hotel clerk Baha Mousa was beaten to death by British soldiers under his command. He was found not guilty. But, says Waters, "there was a widespread sense" that the trial was a "politically inspired The definitive online resource covering decades of labour arbitration awards, court decisions and expert commentary from Brown and Beatty Canadian Labour Law Library online Law Library NEW enhanced online functionality! Canadian Labour Law Library offers you a complete collection of labour law decisions and commentary covering decades of arbitration awards and court cases. Available on the Internet with enhanced functionality including new easy to use search templates (Brown and Beatty, Boolean, consolidated cases and decisions). Featuring the Internet version of: • Canadian Labour Arbitration, Fourth Edition (Brown and Beatty) Donald J.M. Brown, Q.C. and David M. Beatty • Labour Arbitration Cases (LAC), Series 1-4 Consulting Editor: The Honourable Warren K. Winkler, Chief Justice of Ontario Editor: E.B. Willis More than 11,000 LAC decisions • Canadian Labour Arbitration Summaries (CLAS) More than 49,000 CLAS decisions COMING SOON! Disburse your research costs to your clients. Order today! Call your Account Manager today for a free trial and Internet pricing. For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Prices subject to change without notice, and to applicable taxes. CLLL 09 (LT1-4x3).indd 1 LT0112 www.lawtimesnews.com 1/7/09 10:26:14 AM Canadian Labour attempt to show that 'big fi sh' were being prosecuted as well as 'squaddies.'" But while top military brass and even grunts may see things through a prosecutorial prism, Waters disagrees. He thinks the military has been treated benign- ly despite a history of being ruled largely by civilians. He argues that the armed forces have more than adequate legal protection. For instance, soldiers are gov- erned by international humani- tarian law, which oversees their practices on the battlefi eld and sets limits on types of warfare. But these protocols remain "fun- damentally permissive," he says. Th ere are also the Geneva Conventions, but these adhere to the principle that "non-combat- ants are protected only to the ex- tent that harm to them would be disproportionate to the military advantage gained." Also, countries, when they de- ploy soldiers on a foreign battle- fi eld, negotiate so-called status of forces agreements with local gov- ernments to prevent local judi- ciaries from taking action against troops on their soil. Th ese, he says, extend "the likelihood of impunity for wrongdoing." Furthermore, Western nations' own legal systems "have been re- luctant" to apply their human rights regimes abroad, he says. An example is the Canadian Federal Court ruling last year against giv- ing Canadian Charter of Rights and Freedoms protections to alleged Taliban detainees who might face torture after Canadian troops turn them over to Afghan authorities. An appeal of the deci- sion went to court in December. "Rights, it seems, do not seem to follow the fl ag, at least as far as local people go," Waters says. Barbara Falk, director of aca- demics at the Canadian Forces College in Toronto, agrees with Waters to a point. She says it's "simplistic" to think that those in the military all think and behave the same way, such as taking an entirely defensive posture towards legal overseers. On the contrary, the military is "a culture of intense scrutiny and a culture of lessons learned and a culture of internal challenge." Falk points to the roles of military offi cers who have been exemplary in their own self-scru- tiny and desire for justice for en- emy combatants. Th ese include U.S. Navy lawyer Lt.-Cmdr. Charles Swift, who represented Osama bin Laden's driver Salim Hamdan, winning the U.S. Su- preme Court ruling against the Bush administration that it didn't have the power to order military tribunals for terror suspects. And Lt.-Cmdr. William C. Kuebler's "robust, and media savvy, I might add" defence of Guantanamo in- mate Canadian Omar Khadar. Falk says the Canadian mili- tary might even be a paradigm of conscientious learning from past mistakes, in particular the fallout from the Somalia in- quiry into the death of civilian Shidane Arone at the hands of Canadian peacekeeping soldiers. Th is caused a severe military shakeup including the disband- ing the Canadian Airborne Regi- ment. At the Canadian Forces Col- lege, offi cers are taught military law and international law. "Th ey write an essay where they not only deal with interna- tional law's application but also the ethics and norms behind it," Falk says. Waters to some extent agrees. He says his study of British troops shows while they had fears about legal sanctions they "also showed interest in law and a desire to com- ply with legal norms" and that sub- jects like Abu Ghraib or Guanta- namo were "not shied away from." He says this shouldn't be sur- prising, since soldiers also must live by the rule of law, which provides them protection against arbitrary punishment or presumably by the enemy if captured. And law is "cru- cial to discipline and supports the chain of command." Windsor-based lawyer and military legal historian Patrick Brode agrees with Waters that the concern about encirclement may be just "fear-mongering." He says modern militaries have "always operated in a legal framework in which some hu- manitarian principles were to be upheld." He says during the Second World War Canadian soldiers were instructed "to treat prisoners properly to the extent that even stealing from captured Germans could bring punish- ment." Ottawa's Paul Champ, one of the lawyers in the Afghan de- tainees' Charter case, says while "in general" the military acts in compliance with the law, his- tory, "including recent history," shows senior military offi cers are "all too willing" to cover up violations because of fear it "will negatively impact military op- erations and eff ectiveness." Champ points to such cases as Shidane Arone and Britain's Baha Mousa, the latter of which has sparked a public inquiry. "Without legal mechanisms," he says, "the public would never have learned about these inci- dents, and even more seriously, there would have been no pros- ecutions." He argues the legal system must hold the military to ac- count. "Without the court action Canadians never would have learned that Canadian forces have arrested individuals and willingly handed them over to known torturers." Champ says critics of legal LT

• Cover
• M&As Alive
• Union Fines
• Focus On Insurance Law