Rule 141. Each State must make legal advisers available, when necessary, to advise military commanders at the appropriate level on the application of international humanitarian law.
State practice establishes this rule as a norm of customary international law for State armed forces. The practice collected does not indicate that any distinction is made between advice on international humanitarian law applicable in international armed conflicts and that applicable in non-international armed conflicts.
A specific requirement to provide legal advisers to commanders was first introduced in Article 82 of Additional Protocol I with a view to helping ensure that decisions taken by commanders are in conformity with international humanitarian law and that appropriate instruction is provided to armed forces.[1] No reservations or statements of interpretation were made to Article 82 by States adhering to the Protocol.
This rule is contained in many military manuals.[2] It is also supported by official statements and reported practice.[3] Practice indicates that many States which are not party to Additional Protocol I have legal advisers available to their armed forces.[4] The United States, which is not a party to Additional Protocol I, has specifically stated that it supports this rule.[5]
No official contrary practice was found.[6]
This rule is a corollary to the obligation to respect and ensure respect for international humanitarian law (see Rule 139), in particular as commanders have important responsibilities in the system of ensuring respect for international humanitarian law: they are responsible for providing instruction in international humanitarian law to the armed forces under their command (see commentary to Rule 142); they must give orders and instructions which ensure respect for international humanitarian law (see commentary to Rule 139); and they are criminally responsible for war crimes committed pursuant to their orders (see Rule 152), as well as for war crimes committed by their subordinates which they failed to prevent or punish when under an obligation to do so (see Rule 153).
While armed opposition groups must equally respect and ensure respect for international humanitarian law (see Rule 139), no practice was found requiring such groups to have legal advisers. The absence of legal advisers can never be an excuse, however, for any violation of international humanitarian law by any party to any armed conflict.
[1] Additional Protocol I, Article 82 (adopted by consensus) (cited in Vol. II, Ch. 40, § 238).
[2] See, e.g., the military manuals of Australia (ibid., §§ 240–242), Belgium (ibid., § 243), Cameroon (ibid., § 244), Canada (ibid., § 245), France (ibid., § 246), Germany (ibid., § 247), Hungary (ibid., § 248), Italy (ibid., § 249), Netherlands (ibid., § 250), New Zealand (ibid., § 251), Nigeria (ibid., § 252), Russian Federation (ibid., § 253), Spain (ibid., § 254), Sweden (ibid., § 255) and United States (ibid., §§ 256–257).
[3] See, e.g., the statements of Austria (ibid., § 262), Burkina Faso (ibid., § 264), Niger (ibid., § 271), United States (ibid., §§ 273–274) and Trinidad and Tobago (ibid., § 276) and the reported practice of India (ibid., § 266), Israel (ibid., § 267) and Netherlands (ibid., § 270).
[4] See the practice of the United States (ibid., §§ 272–275), the reported practice of India (ibid., § 266) and Israel (ibid., § 267) and the practice of Afghanistan, Azerbaijan, Fiji, Indonesia, Japan, Malaysia, Nepal, Pakistan, Papua New Guinea, Philippines, Singapore, Sri Lanka, Sudan, Thailand and Turkey (on file with the authors).
[5] See the practice of the United States (cited in Vol. II, Ch. 40, § 273).
[6] The four States that indicated that they did not have legal advisers available to the armed forces did not deny that they were under an obligation to do so. At any rate, as parties to Additional Protocol I, these States are treaty-bound to have legal advisers to the armed forces, and two of the States pledged at the 27th International Conference of the Red Cross and Red Crescent to introduce such advisers. See the practice of Burkina Faso (ibid., §§ 263–264), Gambia (ibid., § 265), Malawi (ibid., § 269) and Niger (ibid., § 271).