Practice Relating to Rule 141. Legal Advisers for Armed Forces
Australia’s Commanders’ Guide (1994) states:
In some situations, legal advisers are available to assist commanders in ensuring compliance. In contrast, an aircraft pilot, a company commander or a commander of a RAN vessel does/may not have this direct access; consequently, it is essential that they be adequately trained in LOAC issues.
The manual also states:
All operations plans and ROE should be reviewed by ADF [Australian Defence Force] legal advisers experienced in operations law. In addition, targeting lists and individual missions are to be carefully scrutinised by military planners and their operations law advisers.
Australia’s Defence Force Manual (1994) states:
As appropriate, legal advisers should be available to assist commanders in ensuring compliance. In contrast, an aircraft pilot, a company commander or a commander of a RAN vessel may not have this direct access; consequently, it is essential that they have a sound knowledge and understanding of LOAC issues.
Australia’s Defence Training Manual (1994) states:
In accordance with the requirements of Article 82 of Additional Protocol One, the ADF [Australian Defence Force] is to ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the [1949 Geneva] Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.
The manual further states:
The role of the legal adviser is to provide advice which will assist the commander to execute his mission in compliance with LOAC [law of armed conflict]. It is concerned with the application and the respect for the rules of LOAC. The legal adviser will be called upon to:
a. actively participate in the preparation of exercises, the development of plans for military 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;
b. supervise the organisation of instruction in subordinate units, and to ensure that the levels of understanding are obtained;
c. ensure that instruction on the subject of LOAC is carried out on a continuous basis;
d. provide expertise on particular problems (for example, by developing a legal profile which will assist with weapons and target selection);
e. ensure the functioning of the procedure of legal consultation, particularly at subordinate levels; and
f. advise commanders of their obligations under the terms of Article 87 of Additional Protocol I.
Australia’s LOAC Manual (2006) states:
Legal advisers are required to be available, when necessary, to advise military commanders at the appropriate level on the application of the LOAC and also on the appropriate instruction to be given to members of the armed forces in this subject.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
During the second reading speech of the Geneva Conventions Amendment Bill of 1990, the purpose of which was to amend the Geneva Conventions Act of 1957 so as to enable Australia to ratify the 1977 Additional Protocol I, the Australian Attorney-General stated:
One other matter which was been raised and which I would like to touch on briefly is the claim that problems would be created by military commanders having to have lawyers with them at all times. In the minds of many people, and probably justifiably in some cases, that would create a problem for anyone placed in that position. But that is not the case because the Australian Defence Force’s approach to this is that it would have lawyers involved in the planning and preparation of operational materiel and that it would have them available to commanders at strategic levels. In relation to the legal matters involved, that is where they would get their advice.
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Australia stated: “All ADF [Australian Defence Force] unit commanders on significant overseas operations have a legal officer on their staff or have ready access to a legal officer.”