Practice Relating to Rule 141. Legal Advisers for Armed Forces

Additional Protocol I
Article 82 of the 1977 Additional Protocol I provides:
The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 82. Article 82 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 256.
No data.
Australia
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. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1206.
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, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1205.
Australia
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, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1305.
Australia
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. 
Australia, Law of Armed Conflict Training, DI(G) OPS 33-1, 24 January 1994, § 16.
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, Law of Armed Conflict Training, DI(G) OPS 33-1, 24 January 1994, § 17.
Australia
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. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.11.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983), referring to Articles 47 and 49 of the 1949 Geneva Convention I, Articles 48 and 50 of the 1949 Geneva Convention II, Articles 127 and 129 of the 1949 Geneva Convention III, Articles 144 and 146 of the 1949 Geneva Convention IV and Article 82 of the 1977 Additional Protocol I, provides that “the States signatory to the [1949 Geneva] Conventions undertook to take a series of measures to promote respect thereof”, among which it lists “the appointment of legal advisers to military commands”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 55.
Brazil
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states:
Legal Advisory
The Joint Command and its subordinate commands shall be assisted by a Legal Adviser with regard to military matters and their consequences pursuant to the Law of Armed Conflict and to ensure that all [its] personnel comply with the provisions of the international conventions and agreements to which Brazil is a party, as well as with the provisions of the Rules of Engagement for Non-Combatant Evacuation Operations. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, § 6.4.6.
The Operations Manual also states:
1.2.1 Non-Combatant Evacuation Operations are conducted by the Ministry of Defence, upon request by the Ministry of Foreign Affairs, for the evacuation of non-combatants whose lives are in danger, from their host country to a safe place of destination …
3.4.1 Non-Combatant Evacuation Operations … may be triggered by sudden changes in the government of the host country, changes in its political or military orientation with regard to Brazil, or hostile threats to Brazilian citizens by internal or external forces in that country.
Annex A. Rules of Engagement and the Law of Armed Conflict
3. The Law of Armed Conflict
According to the policy of the Ministry of Defence, the principles of the Law of Armed Conflict regulate the actions taken by the Joint Command in the defence of its personnel, property and equipment. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, §§ 1.2.1 and 3.4.1, and Annex A, § 3.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “preventive measures [of violations of the law of war] include in particular … the presence of legal advisers within the armed forces”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 113; see also Part I bis, p. 46.
Cameroon
Cameroon’s Instructor’s Manual (1992) states:
The profile of a legal adviser is defined as follows:
–having undergone thorough training in International Humanitarian Law and the Law of War for legal advisers,
–holding a degree in public law (or, as a minimum, be well versed in legal matters),
–possessing a sound knowledge of public international law,
–having undergone high-level military training and holding a senior military rank.
Within the General Staff, legal advisers provide high-level training for senior officers.
They may also carry out normal General Staff duties and, in particular, ensure the legality of orders related to property that enjoys special protection.
In addition to their General Staff duties, legal advisers may be assigned special tasks. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 134, § 461.3.
Cameroon
Cameroon’s Instructor’s Manual (2006) states with regard to the role of legal officers specialized in IHL:
1. Editing of Documents and Advising the Command [in Military Headquarters]
[Their] main responsibility consists of ensuring that … all orders and instructions are in accordance with the law of armed conflict and international humanitarian law.
3. Legal Advisors in the Law of Armed Conflict and International Humanitarian Law…
… participate in the high-level training of senior officers.
… participate in the normative work of the military headquarters and particularly in [ensuring] the conformity of orders regarding specially protected objects. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, pp. 285–286, § 651.
Canada
Canada’s LOAC Manual (1999) provides:
As a party to [the 1977 Additional Protocol I], Canada has the obligation to ensure that legal advisors are available to advise military commanders on the application of the LOAC and the appropriate instruction to be given to the CF [Canadian Forces]. Legal officers with the Office of the Judge Advocate General fulfil this mandate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-2, § 8.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Preventative and enforcement measures and the role of protecting powers”:
As a party to [the 1977 Additional Protocol I], Canada has the obligation to ensure that legal advisors are available to advise military commanders on the application of the LOAC and the appropriate instruction to be given to the CF [Canadian Forces]. Legal officers with the Office of the Judge Advocate General fulfil this mandate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1505.
Canada
Canada’s Use of Force Manual (2008) states:
105. OTHER LEGAL CONSIDERATIONS APPLICABLE TO OPERATIONS
3. Strategic Guidance and Direction. The strategic-level guidance provided to the commander and any direction on the use of force (such as ROE [rules of engagement]) authorized for the operation must be based upon legal considerations and requirements. There also must be a clear and coherent link between the approved political objectives, military objectives, the legal basis for the operation, the commander’s concept of operations, and the ROE which are authorized for the operation. Therefore, legal staff shall be involved in the planning process at all levels. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, § 105.3.
Chad
Chad’s Instructor’s Manual (2006) states:
Respect for IHL by combatants depends on two factors, prevention and repression.
(a) The measures and means of prevention [include] … :
- The presence of legal advisers for the armed forces. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 107.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 2 (Instruction of second-year trainee officers):
The military or civilian authorities have the duty to know international humanitarian law.
This is therefore an individual obligation of the military officers who, however, in view of the increasing complexity of that law, can make use of the help of legal advisers. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 35.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states: “States are bound to respect [international] humanitarian law. The preventive mechanisms include in particular … the appointment of legal advisers to the armed forces.” 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 13.
France
France’s LOAC Manual (2001) provides:
Legal advisers present in external areas of operations are required to assist the command in order to take into account these legal parameters [i.e. of the law of armed conflict] in the planning and conduct of operations. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, preamble, p. 7.
Germany
Germany’s Military Manual (1992) states:
A lawyer who is qualified to exercise the function of a judge is assigned to every military commander at the division level and above to perform the following tasks:
–to advise the commander (and his subordinate disciplinary superiors) in all matters pertinent to the military law and the international law;
–to examine military orders and instructions on the basis of legal criteria;
–to participate in military exercises (in his wartime assignment) as a legal officer whose duties include giving advice on matters pertinent to international law; and
–to give legal instruction to soldiers of all ranks, particularly including the further education of officers …
The Legal Adviser has direct access to the commander to whom he is assigned. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, §§ 146 and 147.
Hungary
Hungary’s Military Manual (1992) provides for a series of administrative measures including translation of legal texts and the presence of legal advisers, because “everybody must know the rules”. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 31.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “The State of Israel does not perpetrate war crimes and its acts are covered by routine legal advice.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 47.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s Peace Operations Manual (1994) states that the availability of a legal adviser is always necessary and useful in national detachments of peacekeeping operations in order to dissipate any doubt on the interpretation or applicability of international law. 
Italy, Manuale interforze per le operazioni di pace, Stato Maggiore della Difesa, 1994, Part III, No. 1a(4).
Netherlands
The Military Manual (1993) of the Netherlands notes: “States must ensure that legal advisers are available to advise military commanders concerning the application of the law of war.” 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-1
Netherlands
The Military Manual (2005) of the Netherlands states:
Section 6 - Experts and legal advisers
0250. Experts
In view of the great importance of correct application of the rules of the humanitarian law of war, experts are to be called in to give training in, and implement, such rules. States should seek, even in peacetime, to train expert personnel to implement the humanitarian law of war and, especially, facilitate the activities of the protecting powers. States may do this in cooperation with the national Red Cross (Red Crescent) organizations.
0251. States should also ensure that legal advisers are available in the armed forces, to advise commanding officers on the application of the humanitarian law of war and on instructing the armed forces in this law. In the Royal Dutch Army, the officers of the Military Legal Service fulfil the functions of legal adviser. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0250–0251.
In its chapter on the prevention and punishment of war crimes, the manual states:
1104. The States should also ensure that legal advisers are available to give military commanders advice on the application of the humanitarian law of war. In the Royal Dutch Army, staff jurists are assigned to larger units for this purpose (C-Command Land Armed Forces and brigade). In a unit with a special mission, even if it is a smaller unit, provision must be made to allocate a staff jurist. The staff jurist has an independent role in the staff, under the commanding officer or chief of staff. He forms part of the command group.
1105. He advises both the commanding officer and the coordinating and special staff officers on the application of the humanitarian law of war. Because of the distinction which must be drawn in principle between civilian population and objects on the one hand and military objectives on the other hand, the functional area for the staff jurists is central (intelligence and operations).
The staff jurist should participate in a planning group as necessary. A special role is assigned to the staff jurist in the targeting process. It goes without saying that the legal adviser’s tasks are wider in the complex targeting process of the air strike forces at operating level than in the targeting process of a brigade. Generally, at higher level, tasks of the allocated staff jurists will be divided up. In a combined joint task force headquarters, for example, jurists will be deployed in the service teams of the combined joint operations centre. A jurist will also be assigned to CJ 5 – the Planning Cell. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1104–1105.
New Zealand
New Zealand’s Military Manual (1992) states: “The purpose of this … Manual is to provide interim guidance to members of the New Zealand Defence Force, particularly to legal officers engaged in advising commanders, on the customary and treaty law applicable in armed conflict”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, Introduction, p. xxxiv.
The manual also states:
Some armed forces have trained legal advisers attached to their higher echelons and these officers are competent to indicate what the law is as it affects a particular operation or whether a particular operation or whether a particular act is legally acceptable. By [the 1977 Additional Protocol I] Art. 82 the parties to the Protocol are obliged to ensure that such advisers are available …
The Protocol does not indicate the level of command to which these advisers are to be attached, merely providing that, “when necessary”, they will be available to advise “military commanders at the appropriate level”. The requirement only relates to advice concerning the application of the Geneva Conventions and the Protocol. Art. 82 also provides for these legal advisers being employed to advise on “the appropriate instruction to be given to the armed forces” on these documents. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1604, including footnote 11; see also § 1710.1, footnote 68.
Nigeria
Nigeria’s Military Manual (1994) notes that Part V Section I of the 1977 Additional Protocol I “recommends for legal advisers to be assigned to Commanders at all time[s]”. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 9, § 9e.
The manual also states: “[Article 82] of Protocol I provides that Commanders may be assisted by special legal advisers … where there’s need.” 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 31, § 4.
Peru
Peru’s IHL Manual (2004) defines “legal adviser” as: “A special adviser who must be available to counsel military commanders at the appropriate level on the application of the law of armed conflict and on teaching the armed forces the rules of armed conflict.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, Annex 9, Glossary of Terms.
The manual further states:
a. Preventive measures and mechanisms
The obligations assumed by States Parties to international humanitarian law treaties require them to ensure the proper implementation of the preventive measures and mechanisms provided for in these treaties, including, in particular, the following:
(3) Appointment of competent legal advisers in the armed forces to provide guidance on the implementation of the rules of international humanitarian law and the instruments provided for thereunder. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 10.a.(3).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
(a) Preventive measures and mechanisms
The obligations assumed by States Parties to international humanitarian law treaties require them to ensure the proper implementation of the preventive measures and mechanisms provided for in these treaties, including, in particular, the following:
(3) Appointment of competent legal advisers in the armed forces to provide guidance on the implementation of the rules of international humanitarian law and the instruments provided for thereunder. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 10(a)(3), p. 221.
The AFP [Armed Forces of the Philippines] shall … continue to strengthen mechanisms that ensure adherence to HR [human rights], IHL and the RoL [rule of law] during all aspects of military operations and activities. Human Rights Offices or desks shall be established in AFP units down to the battalion level or its equivalent. 
Philippines, Internal Peace and Security Plan “Bayanihan”, General Headquarters, Armed Forces of the Philippines, Quezon City, 2010, p. 27.
Russian Federation
The Russian Federation’s Military Manual (1990) states:
As far as questions of application of the rules of IHL are concerned, the Commanders … shall, when necessary, turn to the assistance of legal advisers (art. 82 of Additional Protocol I). The officers of the Legal Service have been entrusted to perform this function by an order of the USSR Ministry of Defence. 
Russian Federation, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990, § 16.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
In the event of armed conflict, in decisions related to the application of international humanitarian law, commanders, whenever necessary, shall rely on their legal advisers whose functions at the division (regiment) level are vested in the commander’s assistant on legal matters.
In the event of armed conflict the division (regiment) commander’s assistant on legal matters shall carry out the duties of a legal adviser on issues related to the application of international humanitarian law.
He shall:
- prepare on the commander’s instruction legal statements on the draft combat documents and other papers compliance with international humanitarian law. In case of discrepancy, he shall report to the commander and, if necessary, provide a written clarification;
- advise the command and other officials on, and clarify issues related to the application of, international humanitarian law rules;
- conduct on the commander’s instruction training (methodological) sessions with commissioned officers, take part in international humanitarian law knowledge and application skill tests, including in a combat environment;
- supervise on the commander’s instruction military units’ respect for international humanitarian law; in case of violations, he shall immediately report to the commander and on his instruction organize administrative investigation thereof;
- record and analyse international humanitarian law violations committed by the enemy;
- provide legal support to the division (regiment) command as to the treatment of prisoners of war and detained civilians;
- provide legal support to the investigation of claims and complaints by the civilian population dealing with the behaviour of the military personnel while carrying out their mission;
- provide legal support to the division (regiment) command’s co-operation, in areas of combat operations or in the occupied territories, with the local administration, representatives of the International Committee of the Red Cross, national Red Cross (Red Crescent) societies, and other organizations carrying out humanitarian action in favour of the victims of armed conflicts. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, §§ 11–12.
Russian Federation
The Internal Service Regulations of the Armed Forces of the Russian Federation (2007) provides:
General Obligations of Commanders (Superiors)
77. … A commander (superior), when considering issues pertaining to IHL rules, shall rely on the assistance of a legal adviser when necessary.
Obligations of the Legal Assistant of a Regiment (1st Rank Ship) Commander
106. … At the time of armed conflicts, the legal assistant of a regiment (1st rank ship) commander shall carry out the obligations of a legal adviser to the regiment (1st rank ship) commander. 
Russian Federation, Internal Service Regulations of the Armed Forces of the Russian Federation (Ustav vnutrennei sluzhbi vooruzhennikh sil Rossiskoi Federacii), approved by Decree No. 1495 of the President of the Russian Federation, 10 November 2007, §§ 77 and 106.
Spain
Spain’s LOAC Manual (1996), referring to Article 82 of the 1977 Additional Protocol I, provides: “The State must ensure that Military Commanders, at the appropriate level, can count on the legal advice necessary for the application of the Law of War and its instruction to the Armed Forces.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 11.3.b.(4).
The manual also states: “When legal advisers are available, they shall cooperate in the work of the Chiefs of Staff and, if necessary, perform specific tasks.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 10.4.c.(5).
Annex A to the manual, referring to the 1907 Hague Convention IV and the Nuremberg trials, adds:
Protocol I additional to the 1949 Geneva Conventions, specifically Article 82 thereof, provides that legal advisers shall be available to the Armed Forces. That obligation is binding at all times on the High Contracting Parties and in time of armed conflict on those involved in the conflict in particular.
This Article represents an innovation in terms of the previous conventions governing the law of armed conflicts. The origins of the obligation imposed in Article 82 can nevertheless be traced back to previous treaties.
As has been demonstrated … Article 82 [of the 1977 Additional Protocol I] obliges the contracting parties to ensure that legal advisers are available within the Armed Forces with a view to the application of the Geneva Conventions and the Additional Protocols and to the instruction to be given in the Army on the subject. Although the article is vaguely worded, the competent authorities have discretion only with regard to the terms and conditions on which the advice is given, the hierarchical level of the advisers and the method by which they are recruited. As has been pointed out by one author, “the article in question creates the obligation for the high contracting parties to adopt the adequate rules to ensure that legal advisers are available to the armed forces”.
In the case of Spain, the following formula has been adopted within the limits of the methods to implement the terms of Article 82:
1. Existence of a specific technical corps of legal experts specifically belonging to the Armed Forces.
3. The existence of a military legal corps has undeniable advantages, since advice is not provided only in the command decision-making phase but also with regard to the disciplinary and penal repression of violations of the Law of Armed Conflict. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, Annex A.
Spain
Spain’s LOAC Manual (2007) provides:
States must ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the law of armed conflict and on the instruction to be given to the members of the armed forces on this subject. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 11.3.b.(2).
Annex A to the manual, “Legal Advice”, adds:
Protocol I additional to the Geneva Conventions of 1949 [1977 Additional Protocol I], specifically article 82, establishes that the armed forces must have legal advisers.
This obligation applies to all the High Contracting Parties at all times and to the parties to the conflict in time of armed conflict, in particular.
This article establishes a new provision not included in previous international humanitarian law conventions, although the origins of the obligation established in article 82 can be traced back to earlier conventions.
[A]rticle 82 requires the States Parties to ensure that legal advisers are available to the armed forces to provide them with guidance on the application of the Geneva Conventions and the Additional Protocols and the teaching of the law of armed conflict to military personnel. Although the wording of the article is somewhat vague, the only questions left to the discretion of the competent authorities are the conditions for the use and allocation of these advisers and the way in which they are recruited. As one author put it “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”.
Spain has adopted the following formula to fulfil the provisions of article 82:
1. The armed forces have a specific technical service formed by legal experts.
3. The existence of a military legal service has undeniable benefits, because legal advice is not only provided for command decision-making, but also for the repression of breaches of the law of armed conflict, involving disciplinary or criminal action. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 11.3.b.(2).
Sweden
Sweden’s IHL Manual (1991) states:
A generally accepted opinion is that proper application of the humanitarian legal rules depends to a large degree on the states’ genuinely following the rules laid down in Article 82 of Additional Protocol I.
Article 82 states that “The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall 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”. This is an obligation that Sweden through her ratification of the Protocol has undertaken to put into practice.
The legal advisers associated with the armed forces shall thus act both in peace and in war at appropriate military levels. They shall give general advice concerning instruction in international law within military defence. In this way they will also play a not unimportant part in such training within the civilian parts of the total defence system. Further, they shall give special guidance concerning the application of the rules of international law in both preparations for and the execution of military operations …
It is … crucial that legal advisers, even in peacetime, can ensure that international law is included in instruction and planning. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 9, pp. 163 and 164.
The manual also quotes a decision of the Swedish Government of 1990 concerning advisers on international law and the text of the Total Defence Ordinance relating to International Humanitarian Law, containing similar provisions, notably:
The wartime organization of the armed forces shall have appointments for advisers on international law … They shall be stationed at high-level staffs and shall have the task of advising military leaders as to how the rules of international law in war … shall be applied …
The peacetime organization of the armed forces shall have an adviser on international law with the Supreme Commander and one with every General Officer commanding Military Command Area.
The advisers on international law shall participate in the instruction of personnel of the armed forces as to how the rules of international law in war … are to be applied. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System , Swedish Ministry of Defence, January 1991, Section 9, p. 166 and Appendix (Sections 27 and 28), p. 185.
Uganda
Uganda’s LOAC Dissemination Directive (2006) provides:
[A]at all appropriate levels of command and during all stages of operational planning and execution of any military operations, legal advisors will provide advice concerning law of war compliance. Advice on law of war compliance will address not only legal constraints on operations but also legal right to employ force. 
Uganda, Chief of Defence Forces Directive: Dissemination of the Law of Armed Conflict, Uganda People’s Defence Forces (UPDF), Chief of Defence Forces, 5 May 2006.
Ukraine
Ukraine’s IHL Manual (2004) states:
1.5.3. To solve any issues related to the application of the laws of war, the commanders and commanding officers shall engage legal advisors whose functions are performed by assistant unit commanders responsible for legal work (legal counsellors of the military units).
1.6.1. During an armed conflict, officers and employees of the legal service of the Armed Forces of Ukraine, assistant unit commanders responsible for legal work (legal counsellors of the military units) perform the duties of legal advisors.
Legal advisors shall provide the commanders with necessary advice concerning practical issues of compliance with the rules of international humanitarian law and rules of engagement, as well as to provide necessary instructions to the personnel.
1.6.4. In times of armed conflict the legal counsellor shall:
- approve and sign draft service documents prior to the decision by the appropriate military command to authorize combat actions from the standpoint of their compliance with the rules and demands of the laws of war;
- provide necessary assistance to the military command in solving difficult questions and choosing both legal and effective courses of action;
- provide assistance to the military command in solving emerging legal issues and removing obstacles during combat actions;
- take direct part in hostilities, if necessary;
- make himself/herself aware of future combat plans in order to assess their conformity with the rules and demands of international humanitarian law;
- in case of noncompliance of the military command actions with international humanitarian law, to remind the commanders of the necessary rules of the law of armed conflict, in particular, of Article 87 of Additional Protocol I to the Geneva Conventions on the protection of victims of war of 8 June 1977; should the violations of the laws of war fail to be removed, the legal counsellor must report this to the higher command both in oral and written form.
Legal counsellor shall be charged with recording and initial investigation of violations of the laws of war by members of both friendly and enemy forces.
Legal counsellors from among officers and employees of the legal service of Ukraine’s Armed Forces of relevant administrative bodies shall participate in the combat planning, approval and signature of draft service documents as to their conformity with the rules and demands of international humanitarian law. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, §§ 1.5.3, 1.6.1 and 1.6.4.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
Legal advisers are required to be available, when necessary, to advise military commanders at the appropriate level on the application of the law of armed conflict and also on the appropriate instruction to be given to members of the armed forces in this subject. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.5.
United States of America
The US Operational Law Handbook (1993) states:
A successful deployment legal assistance program will generally involve:
1. Advance planning by the legal assistance officer(s) and other judge advocates that may become involved in providing assistance to deploying soldiers. 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. R-195.
Appendix 4 to Annex E to CJTF Tandem Thrust-92 Explan 1-92 (U) Legal (U) states:
The CJTF Staff Judge Advocate will:
(1) (U) Provide legal assistance to CJTF and his staff.
(2) (U) Serve as a single point of contact for operational law matters within the JTF AOR [Area of Responsibility].
(3) (U) Monitor foreign criminal jurisdiction matters with respect to U.S. personnel with the JTF AOR.
(4) (U) Ensure that all plans, policies, directives, rules of engagement, and targeting are consistent with the DoD Law of War Program and domestic international law. 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, Appendix 4 to Annex E to CJTF Tandem Thrust-92 Explan 1-92 (U), Legal (U), § 1(b).
The document further states: “The CJTF SJA [Staff Judge Advocate] is the Commander’s principle advisor in all matters pertaining to the LOAC.” 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, Appendix 4 to Annex E to CJTF Tandem Thrust-92 Explan 1-92 (U) Legal (U), § 2(b)(3)(a).
The deployment checklist, dealing with “international law considerations” at the post-alert stage, states: “The International/Operational Law Officer should be the SJA office’s point of contact at the EOC [Emergency Operations Center] and should keep the office advised at all times. He should attend all EOC briefings.” 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Mc-12.
The post-deployment checklist states:
The early stages of a deployment will usually have a multitude of issues of International/OPLAW [operational law] concern. Close coordination/contact must be maintained with the operational section … Trial counsel or legal advisers assigned to each subordinate unit (usually Brigade size units) should watch for potential International/OPLAW issues in their units. 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. Mc-14.
Regarding Special Operations Forces, the Handbook provides for the assignment of a Judge Advocate to each Special Forces Group, a Psychological Operations Group, a Ranger Regiment and a Special Operations Aviation Regiment, stating: “These attorneys are responsible for providing the legal advice a SO [Special Operations] unit commander requires to perform his assigned mission.” The Handbook adds:
SO missions are politically sensitive, particularly in a peacetime or low-intensity conflict environment, and thus, the area of SO is fraught with potential legal pitfalls. The commander must consider not only the effect of traditional law of war requirements on his operation, but also the requirements of US law, such as security assistance and intelligence statutes, and international law in the form of mutual defence treaties and host nation support agreements. 
United States, Operational Law Handbook, JA 422, Center for Law and Military Operations and International Law Division, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia 22903-1781, 1993, p. N-146.
United States of America
The US Naval Handbook (1995) provides:
Navy and Marine Corps judge advocates responsible for advising operational commanders are especially trained to provide officers in command with advice and assistance in the law of armed conflict on an independent and expeditious basis. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.2.
United States of America
The US Naval Handbook (2007) states: “Navy and Marine Corps judge advocates responsible for advising operational commanders are specially trained to provide officers in command with advice and assistance in the law of armed conflict on an independent and expeditious basis.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, p. 19; see also § 6.1.2.1.
United States of America
The US Manual on Detainee Operations (2008) states in the chapter on “Roles and Responsibilities”:
Staff Judge Advocate/Legal Advisor
a. Serves as the JFC [joint force commander] legal advisor for the CDO [commander, detainee operations].
b. Advises the commander and other personnel responsible for detention operations on all matters pertaining to compliance with applicable law and policy.
c. Provides legal advice to the commander on all matters relating to detainee misconduct.
d. Advises the appropriate commander regarding investigation of suspected maltreatment or abuse of detainees, or other violations of applicable law or policy.
e. Normally serves as the CDO’s liaison to the ICRC.
f. In coordination with the JFS, advises the JFC on legal issues pertaining to detainee medical support.
g. Reviews interrogation approaches and techniques and advises the commander and intelligence personnel on compliance with applicable law and policy.
h. Advises appropriate commanders on evidentiary collection procedures necessary to prosecute detainees locally for criminal offenses. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. II-10.
In the chapter on “Transfer or Release from Detention”, the manual states:
Staff Judge Advocate
(1) Provides the JFC with legal guidance regarding applicable law and regulations.
(2) Serves as the command liaison to the ICRC and determines authorized ICRC activities related to the transfer/release of detainees.
(3) Provides technical expertise in support of required instruction and training related to the law of war. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. VII-1.
Belarus
Belarus’s Order on Study and Dissemination of IHL (1997), with reference to Article 82 of the 1977 Additional Protocol I, entrusts the military law section of the Ministry of Defence’s legal department with the coordination of the activities of the legal advisers of the armed forces. 
Belarus, Order on Study and Dissemination of IHL, 1997, § 4.
Colombia
Colombia’s Directive No. 10 (2007), whose objective is to prevent the killing of protected persons, states:
With the objective of strengthening the application of international humanitarian law, preventing homicides of protected persons and strengthening the legitimacy of the Armed Forces, the General Command of the Armed Forces must issue precise orders to all personnel of the armed forces with a view to:
3. … Obtaining legal advice pertinent for the planning of operations. 
Colombia, Directive No. 10, 2007, § VI(3).
Peru
Peru’s Directive on Instruction in IHL within the Armed Forces (2004) states:
Through the International Humanitarian Law Centre, the Joint Command of the Armed Forces shall be in charge of:
(10) Promoting and recommending the appointment of officers trained in international humanitarian law to act as legal advisers in military operations during international armed conflict, non-international armed conflict and peacekeeping operations, as well as in other situations in which international humanitarian law is applicable. 
Peru, Directive on Instruction in IHL within the Armed Forces, 2004, Article 5(b)(10).
Russian Federation
The Russian Federation’s Order on the Publication of the Geneva Conventions and Protocols (1990) requires that Vice-Ministers of Defence and commanders at several levels “charge the officers of the Legal Service of the Ministry of Defence with the duty of legal advisers foreseen by art. 82 of Protocol I”. 
Russian Federation, Order on the Publication of the Geneva Conventions and Protocols, 1990, § 2.
Sweden
Sweden’s Total Defence Ordinance relating to IHL (1990) provides:
The wartime organization of the Armed Forces shall have appointments for advisers on international law of the number decided by the Armed Forces. They shall be stationed at high-level staffs and shall have the task of advising military leaders as to how the rules of international law in war and during neutrality shall be applied. The advisers shall also take part in the planning work of the military staffs.
The Ordinance further states: “The peacetime organization of the Armed Forces shall have an adviser on international law within the Armed Forces and two with every Commander [and] Joint Command.” Moreover, the Ordinance provides for two appointments of advisers on international law for the wartime organization of every director of a regional civil defence and for two appointments of advisers on international law for the wartime organization of every county administrative board. It stipulates that the advisers on international law shall be lawyers. 
Sweden, Total Defence Ordinance relating to IHL, 1990, Sections 27–32.
Ukraine
Ukraine’s Act on the Internal Service Statute of the Armed Forces (1999), as amended in 2005, provides:
During armed conflict, the legal adviser of the commander of the regiment advises the command as to observance of rules of international humanitarian law and rules on the use of force and as to instructions given to military personnel. 
Ukraine, Act on the Internal Service Statute of the Armed Forces, 1999, as amended in 2005, Annex, § 99(3).
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
At the international level, the State obligation to respect and ensure respect for international humanitarian law is found in Article 1 common to the 1949 Geneva Conventions and has acquired customary status.
[T]he general obligation to respect and ensure respect for international humanitarian law is the foundation for a number of more specific duties such as … the duty to … assign the necessary legal advisers. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 61.
Germany
In 2005, in the Limits of Obedience to Superior Orders case, Germany’s Federal Administrative Court noted:
… advising the commanding officer and the disciplinary superiors subordinate to the commanding officer in all questions of military law and international law, as well as the legal co-examination of orders and instructions is part of the tasks of a legal adviser (No. 146 ZDv 15/2). 
Germany, Federal Administrative Court, Limits of Obedience to Superior Orders, Judgment, 21 June 2005, p. 120.
[emphasis in original]
Australia
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. 
Australia, House of Representatives, Attorney-General, Geneva Conventions Amendment Bill 1990: Second Reading Speech, Hansard, 12 February 1991.
Australia
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.” 
Australia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 15 September 2010, UN Doc. CRC/C/OPAC/AUS/1, submitted October 2008, § 58.
Austria
At the 27th International Conference of the Red Cross and Red Crescent in 1999, Austria pledged to “strengthen and review the system of legal advisers established under Article 82 of [the 1977 Additional Protocol I] and to undertake to include such advisers in Austrian units participating in international peace-support operations”. 
Austria, Pledge made at the 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999.
Belgium
In 1999, in its second periodic report to the Committee on the Rights of the Child under Article 44 of the Convention on the Rights of the Child, Belgium stated: “Mention should be made of certain administrative and educational measures for the enforcement of humanitarian law: … a team of lawyers and an adviser on the law of armed conflicts are attached to each detachment serving abroad.”  
Belgium, Second periodic report to the Committee on the Rights of the Child under Article 44 of the Convention on the Rights of the Child, 25 October 2000, UN Doc. CRC/C/83/Add.2, submitted 7 May 1999, § 675.
Belgium
In 2001, in its initial report to the Committee against Torture, Belgium stated:
In each of the armed forces, advisors in the area of armed conflict may be asked to follow up the contents of the course [organized for the armed forces on armed conflict law] that relate to the prohibition of torture. 
Belgium, Initial report to the Committee against Torture, 8 July 2002, UN Doc. CAT/C/52/Add. 2, submitted 14 August 2001, §§ 156 and 157.
Belgium
In 2006, in its written replies to the questions raised by the Committee on the Rights of the Child with regard to Belgium’s initial report under the Optional Protocol on the Involvement of Children in Armed Conflict, Belgium stated:
The Belgian armed forces have introduced advisers on the law of armed conflict (CDCAs) in military units and headquarters. These advisers are responsible for advising commanders during operations. 
Belgium, Written replies to the list of issues to be taken up in connection with the consideration of the initial report of Belgium to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 3 April 2006, UN Doc. CRC/C/OPAC/BEL/Q/1/Add.1, submitted 30 March 2006, p. 8.
Belgium
In 2006, in its second periodic report to the Committee against Torture, Belgium stated: “The armed forces have introduced a network of advisers on the law of armed conflict (CDCAs) in military units and headquarters who are responsible for advising commanders in this field.” 
Belgium, Second periodic report to the Committee against Torture, 14 August 2007, UN Doc. CAT/C/BEL/2, submitted 21 September 2006, § 186(d).
Burkina Faso
In 1999, the Ministry of Foreign Affairs of Burkina Faso and the ICRC, in cooperation with the Burkinabé Red Cross Society, held the first national seminar on implementation of IHL. The seminar, inter alia, urged Burkina Faso to appoint legal advisers to the armed forces. 
ICRC, Advisory Service, 1999 Annual Report, Geneva, 2000, p. 16.
Burkina Faso
At the 27th International Conference of the Red Cross and Red Crescent in 1999, Burkina Faso pledged to “appoint legal advisers in the armed forces”. 
Burkina Faso, Pledge made at the 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999.
Denmark
In 2008, in its fourth periodic report to the Committee on the Rights of the Child, Denmark stated: “The Corps of Military Prosecutors of the National Defence is responsible for the education of military legal advisors to the Danish Defence … who guide the chief military officers in respect of humanitarian international law, for example.” 
Denmark, Fourth periodic report to the Committee on the Rights of the Child, 22 January 2010, UN Doc. CRC/C/DNK/4, submitted 19 August 2008, § 597; see also § 601.
Denmark
In 2010, in its written response to the UN Secretary-General concerning the status of the 1977 Additional Protocols, the Permanent Mission of Denmark to the United Nations in New York stated:
The Military Prosecution Service, more specifically the Prosecutors General’s Office, is also responsible for the legal training of Danish military legal advisors. The scheme was created in 1996 to fulfill the obligations to facilitate legal advice to military commanders, in particular in the field of humanitarian law, prescribed by Article 82 of [the 1977] Additional Protocol I. 
Denmark, Written response by the Permanent Mission of Denmark to the UN Secretary-General concerning the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, Ref. No. 6.B.2.FNNYC, 28 May 2010, p. 2.
France
In 2008, in its fourth to sixth periodic reports to the Committee against Torture, France stated:
French military personnel … receive oral instructions in that regard [prohibition of torture, duty to disobey unlawful orders by a superior officer and obligations regarding the treatment of the wounded, ill and shipwrecked] in the theatre of operations, in particular through the presence of a legal adviser alongside the troop commander. 
France, Fourth to sixth periodic reports to the Committee against Torture, 23 July 2009, UN Doc. CAT/C/FRA/4-6, submitted 30 June 2008, para. 172.
Gambia
In 1999, at a seminar on national implementation of IHL, organised by the ICRC, the Gambia Red Cross Society and the Gambian Department of State for Justice, the participants encouraged the authorities, inter alia, to appoint legal advisers to the armed forces. 
ICRC, Advisory Service, 1999 Annual Report, Geneva, 2000, p. 28.
Germany
In 2006, in a white paper on German Security Policy and the Future of the Bundeswehr, Germany’s Federal Ministry of Defence stated:
6.9. Military legal system
Military decisions may only be taken in compliance with the established principles of national and international law. It is therefore essential that all members of the Bundeswehr [Federal Armed Forces] are familiar with the law and know right from wrong. The servicemen and women are entitled to seek protection of their rights before independent courts in case of such rights being violated. In the Armed Forces it is primarily the members of the Bundeswehr Military Legal System who have the task of imparting the necessary legal knowledge.
They also advise military superiors, particularly on matters of military law and criminal law as well as constitutional and international law. The Bundeswehr Military Legal System has a civilian structure and consists of the following:
- Courts having jurisdiction over military disciplinary offences and complaints by military personnel
- Disciplinary attorneys for the Armed Forces including the Disciplinary Attorney General for the Armed Forces
- Legal advisers
- Legal instructors
More than 100 civilian legal experts are currently employed as legal advisers to commanders and directors in units, agencies and offices of the Armed Forces at division level and higher. These act, in a secondary function, as disciplinary attorneys for the Armed Forces. Some 50 civilian legal instructors are employed at schools and academies of the Armed Forces. Military jurisdiction is exercised by the North (Münster) and South (Munich) Disciplinary and Complaints Courts of the Bundeswehr, with a total of 15 divisions and the two Military Affairs Divisions of the Federal Administrative Court in Leipzig. The courts having jurisdiction over military disciplinary offences and complaints by members of the Armed Forces are staffed by professional civilian judges and military lay judges. They take decisions on military complaints and disciplinary matters. In so doing, they are independent and bound only by law. Prosecution of criminal offences, however, is the exclusive jurisdiction of civilian criminal courts.
The operations-oriented posture of the Bundeswehr also poses fresh challenges to the Military Legal System. Legal advisers take part in operations abroad in the rank of field-grade officers. They advise the contingent commanders on the wide range of legal issues pertinent to operations. Not only are they tasked with the interpretation of United Nations resolutions, Status of Forces Agreements and Rules of Engagement, for instance, but they must also conduct a legal sufficiency review of operation plans to ensure that they comply with the rules of international humanitarian law. They are besides employed in multinational headquarters together with legal advisers of other nations. Their tasks additionally include supporting the deployed units during disciplinary investigations in the country of deployment, rendering administrative assistance to German investigative and judicial authorities, and providing military personnel on operations with initial legal advice on private legal matters. 
Germany, Federal Ministry of Defence, White Paper 2006 on German Security Policy and the Future of the Bundeswehr, 25 October 2006, p. 110.
India
The Report on the Practice of India states:
As regards the legal advice on matters regarding international humanitarian law, it is the responsibility of [the] Judge Advocate General. He is supposed to advise the higher military authorities on military, martial and international law related issues referred to him. The Army Rules also provide for reference of legal questions including questions involving [the] interpretation and application of humanitarian law to Deputy Judges Advocate General as well as other subordinate legal personnel within the armed forces. 
Report on the Practice of India, 1997, Chapter 6.11.
Israel
According to the Report on the Practice of Israel, the International Law Department of the Israel Defense Forces (IDF) is responsible for advising all military commanders on the application of the laws of war in the field. 
Report on the Practice of Israel, 1997, Chapter 6.6.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
216. Leading up to and during the recent operations in Gaza, the IDF [Israel Defense Forces] Military Advocate General’s Corps [MAG] provided legal advice on the Law of Armed Conflict to commanders at the General Staff, Regional Command and Divisional levels. The lawyers examined the legality of planned targets, participated in the operational planning process, helped direct humanitarian efforts, and took part in situation assessments, exercises and simulations. Legal advisors also assisted in drafting operational orders and procedures and in preparing legal annexes to such orders.
217. IDF military lawyers were involved in advising commanders on international law aspects of the Gaza Operation. The IDF structure ensures that the IDF legal advisors can provide frank and professional advice. All legal advisers belong to the MAG Corps and are not subordinate to the commanders they advise. According to Israeli law, the head of legal services in the IDF, the Military Advocate General has an independent status outside the military hierarchy in relation to all legal issues. In principal legal aspects the MAG is subject to the guidance and supervision of Israel’s Attorney-General and regularly consults with the Attorney General. In addition, IDF activities, including during active combat, as well as all MAG and Attorney General decisions are subject to judicial scrutiny and review by Israel’s Supreme Court sitting as the High Court of Justice. 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 216–217; see also § 209.
Israel
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:
The Military Advocate General’s Corps
14. The Military Advocate General’s [MAG] Corps is comprised of highly professional and trained lawyers, and is responsible for enforcing the rule of law throughout the IDF. It also provides advice on military, domestic, and international law to the Chief of General Staff and all divisions of the IDF. The decisions and legal opinions of the Military Advocate General are binding on all components of the military.
15. Although he serves on the General Staff of the IDF, the Military Advocate General is legally independent. IDF Supreme Command Orders state that in executing his powers and authority, the Military Advocate General is “subject to no authority but the law.” Thus, the Chief of General Staff has no authority over him regarding legal matters. The Military Advocate General is not subject to direct orders of any superior officers, excluding the Chief of Staff in non-legal matters. As a former Military Advocate General has explained, the Military Advocate General has a unique status in the military:
“Members of the Military Advocate are not subject to the functional command orders of the command ranks that they serve, and the decisions that they make are in their exclusive discretion. The MAG is not subordinate to the Chief of Staff in respect of the exercise of his powers and is not under any command whatsoever – de jure or de facto.”
16. The independence of the Military Advocate General extends to every officer within the Military Advocate General’s Corps. Each is subordinate only to the Military Advocate General and is not subject to direct orders by commanders outside the Corps.
17. The manner in which the Military Advocate General is appointed further evidences his independence. Under the Military Justice Law, the Minister of Defence appoints the Military Advocate General, upon a recommendation of the Chief of General Staff of the IDF. The Military Advocate General’s dual enforcement and advisory responsibilities parallel those of chief military lawyers in other countries, such as the United Kingdom. The units within the Military Advocate General’s Corps that issue legal guidance to the IDF and that examine and prosecute alleged crimes by IDF forces are separate from one another. 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, §§ 14–17.
[footnotes in original omitted]
Kenya
In 1999, at a seminar on implementation of IHL organized by the Kenyan Attorney-General’s chambers and the ICRC, the participants encouraged the authorities, inter alia, to step up IHL training for legal advisers to the armed forces. 
ICRC, Advisory Service, 1999 Annual Report, Geneva, 2000, p. 42.
Malawi
In 1999, at a seminar on national implementation of IHL organized by Malawi’s Ministry of Defence, the Law Commissioner, the ICRC and the National Red Cross Society, the participants urged the authorities, inter alia, to provide for the appointment and training of personnel qualified in IHL, including legal advisers to the armed forces. 
ICRC, Advisory Service, 1999 Annual Report, Geneva, 2000, p. 44.
Mexico
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Mexico stated:
Mexico’s armed forces have incorporated instruction and training in international humanitarian law into military doctrine and manuals … There are courses for military defence counsel, so that they can act as legal advisers, on the application of the international humanitarian law pursuant to article 82 of the Additional Protocol I of 1977. 
Mexico, Report on the Status of the 1977 Protocols Additional to the Geneva Conventions of 1949, 29 September 2010, § 6(4).
Netherlands
On the basis of an interview with high-ranking officers of the army of the Netherlands, the Report on the Practice of the Netherlands states that the Royal Netherlands Army has legal advisers at all levels higher than brigade level. 
Report on the Practice of the Netherlands, 1997, Interview with two high-ranking officers of the Royal Netherlands Army staff, both legal advisers, 15 April 1997, Chapter 6.6.
Niger
At the 27th International Conference of the Red Cross and Red Crescent in 1999, Niger pledged to “appoint legal advisers at all levels of the armed forces”. 
Niger, Pledge made at the 27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999.
Norway
In 2009, in its sixth periodic report to the Human Rights Committee, Norway stated with regard to the participation of Norwegian Armed Forces in international operations: “[T]rained legal advisers with a high knowledge and expertise within the field of legal and human rights issues are as a rule also part of the national contingents deployed to international operations.” 
Norway, Sixth periodic report to the Human Rights Committee, 11 November 2010, UN Doc. CCPR/C/NOR/6, submitted 25 November 2009, § 15.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated: “In order to [improve] compliance with IHL, the Government requires the assistance of IHL legal experts to train and advise its armed forces.” 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 80.
Spain
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
The purpose of basic training is to prepare career members of the armed forces to join the ranks and to train soldiers and sailors for entry into the auxiliary or professional forces.
… [A]ll curricula cover basic law, ethics, military law, international relations, maritime law (for … military defence counsel) and aeronautical law (for … military defence counsel), and they all make reference to the [1949] Geneva Conventions and their Additional Protocols.
Special mention should be made of the module on the law of armed conflict in the curriculum for defence counsel, which includes both theory and practice components. That training is carried out in cooperation with the Spanish Red Cross Centre for the Study of International Humanitarian Law. 
Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 1.1.
Trinidad and Tobago
In 1993, during a debate in the Sixth Committee of the UN General Assembly on the UN programme of assistance in the teaching, study, dissemination and wider appreciation of international law, the representative of Trinidad and Tobago stated that “her delegation noted the growing interest in the legal aspects of peacekeeping operations. Legal advisers attached to such operations should be equipped to tackle the legal problems that might arise.” 
Trinidad and Tobago, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/48/SR.33, 19 November 1993, § 11.
United Kingdom of Great Britain and Northern Ireland
In 2008, the UK Army published the Aitken Report which investigated cases where members of the British Army were alleged or proven to have mistreated or killed Iraqi civilians outside the context of immediate combat operations in 2003 or early 2004. The report stated: “Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA [Army Prosecuting Authority].” 
United Kingdom, Army, The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, § 28.
The report further stated:
To improve the quality of legal advice in training, and to capture lessons learned on operations, an Operational Law Branch was fully established in January 2006 under an operationally-experienced Army Legal Services Brigadier. It provides expert advice on the practical application of international law on operations, and reviews all material taught in both the adaptive foundation and on pre-deployment training. No Army lawyer deploys on operations without having attended the requisite training in operational law, delivered through a combination of internal military instruction and external academic sources. Army lawyers are now embedded at the Defence Intelligence and Security Centre to provide immediate advice on the training delivered there. APA prosecutors deploy to operational theatres to support the Service Police directly. In addition, a joint legal cell has been established at the Development, Concepts and Doctrine Centre to provide legal advice on doctrine. 
United Kingdom, Army, The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, § 31.
United Kingdom of Great Britain and Northern Ireland
In 2009, in response to a question in the House of Commons, the UK Secretary of State for Defence wrote: “Trained and qualified lawyers are deployed on all standing operations and are an integral part of the targeting process, are consulted on all forms of the conduct of operations and are available for specialist queries if doubt exists.” 
United Kingdom, House of Commons, Written Statement by the Secretary of State for Defence, Hansard, 2 December 2009, Vol. 501, Written Statements, col. 727W.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding Article 82 of the 1977 Additional Protocol I:
11.7 There is an extensive ICRC commentary which accompanies this provision. It makes clear that the requirement to make legal advisers available arose from the increasingly complex, detailed and extensive nature of IHL. The conditions for the use of legal advisers and the choice of methods of training them are left to the discretion of the Contracting Parties. It is plain from the commentary that what is envisaged is the provision of either qualified lawyers or military officers who have trained in the requirements of IHL.
11.8 It is also clear from the commentary that flexibility on the use of legal advisers is left to the discretion of the Parties so as to avoid questioning the validity of orders from a superior whenever a legal adviser has not been consulted, and even to avoid “putting into question the whole military hierarchy”, and to prevent the incorporation of legal advisers from weakening the sense of responsibility of commanders.
11.9 As the inquiry has heard, the MOD’s legal advisers are qualified solicitors or barristers. Some are members of the Army Legal Service (ALS) and therefore enjoy the benefits not only of professional legal qualifications but also a high level of military knowledge. At the highest levels of command in the army it is recognised in the ICRC commentary that the presence of renowned experts may be necessary in some circumstances, but this solution cannot necessarily be adopted at all levels where the presence of legal advisers is necessary for two reasons. Firstly, there are not enough of such legal advisers even to service the British armed forces, still less those of the more than a hundred other States Parties to [the 1977] Additional Protocol I and secondly in operational theatre a much broader set of skills are required in order to carry out this role effectively. Operational law is much wider than the treaty obligations contained in the [1949] Geneva Conventions or Additional Protocols. When deployed on operation all ALS officers need to be able to provide advice across a broad spectrum of domestic, military and international law. In order for them to provide this advice they must have the necessary military skills to be able to deploy with confidence into hostile environments such as Iraq or Afghanistan. When so deployed they will routinely be subjected to indirect fire from the enemy and may very well have to use a personal weapon in the defence of themselves or others. They will also be subjected to extreme temperatures while carrying out their duties.
11.10 Others are lawyers form the Government Legal Service (GLS) who are deployed to particular posts within PJHQ [Permanent Joint Headquarters] and MODLA because they have shown that they have the requisite skills and judgment necessary for the post in question. During their careers GLS lawyers gain a wide range of public law experience including in core areas such as human rights and the interpretation of domestic and international legal frameworks. GLS lawyers are placed in particular posts where they have shown that they have the requisite skills and judgment necessary and, where they don’t already have relevant specialist experience, the aptitude to understand and apply new areas of the law quickly and competently. GLS lawyers are not sole practitioners. They have access to specialist training and know-how and draw on the expertise of their colleagues (both civilians and military). They routinely liaise with lawyers across different departments and agencies and do, for example, draw on the international law expertise in the Foreign Office. They are experienced in advising on wider propriety issues and the need to advise Ministers of particular difficult legal issues and seek the advice of the Attorney General as appropriate.
11.12 The inquiry has heard evidence that legal advisers were deployed from the very top strategic level through the operational level and down to the tactical level of a (non independent) brigade … Accordingly, the depth to which legal advisers were in fact deployed exceeded that envisaged by the ICRC. 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, §§ 11.7–11.10 and 11.12, pp. 24–27.
[footnotes in original omitted]
United States of America
The 1979 version of the US Department of Defense (DoD) Directive on the Law of War Program states:
The DoD General Counsel shall provide overall legal guidance within the Department of Defense pertaining to the DoD law of war program, to include review of policies developed in connection with the program and coordination of special legislative proposals and other legal matters with other Federal departments and agencies. 
United States, Department of Defense Directive on the Law of War Program No. 5100.77, 10 July 1979, Section E(2)(d).
United States of America
In 1987, a Deputy Legal Adviser of the US Department of State, referring to Articles 80–85 of the 1977 Additional Protocol I, affirmed: “We support the principle that legal advisers be made available, when necessary, to advise military commanders at the appropriate level on the application of these principles.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 428.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
The Office of General Counsel of the Department of Defense (DOD), as the chief DOD legal office, provided advice to the Secretary of Defense, the Deputy Secretary of Defense, the Under Secretary of Defense for Policy, other senior advisers to the Secretary and to the various components of the Defense legal community on all matters relating to Operations Desert Shield and Desert Storm, including the law of war. For example, the Secretary of Defense tasked the General Counsel to review and opine on such diverse issues as the means of collecting and obligating for defense purposes contributions from third countries; the War Powers Resolution; DOD targetting policies; the rules of engagement; the rules pertinent to maritime interception operations; issues relating to the treatment of prisoners of war; sensitive intelligence and special access matters; and similar matters of the highest priority to the Secretary and DOD. In addition, military judge advocates and civilian attorneys with international law expertise provided advice on the law of war and other legal issues at every level of command in all phases of Operations Desert Shield and Desert Storm. Particular attention was given to the review of target lists to ensure the consistency of targets selected for attack with United States law of war obligations. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 617.
United States of America
The 1998 version of the US Department of Defense (DoD) Directive on the Law of War Program provides that the General Counsel of the Department of Defense shall “establish a DoD Law of War Working Group” which shall “provide advice to the General Counsel on legal matters covered by this Directive”. It also states that the Heads of the Department of Defense Components shall “ensure that qualified legal advisers are immediately available at all levels of command to provide advice about law of war compliance during planning and execution of exercises and operations”. The Directive further provides that the Commanders of the Combatant Commands shall “designate the command legal adviser to supervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of the law of war”. Moreover, the Commanders of the Combatant Commands shall “ensure all plans, policies, directives, and rules of engagement issued by the command and its subordinate commands and components are reviewed by legal advisers to ensure their consistency with this Directive and the law of war”. 
United States, Department of Defense Directive on the Law of War Program No. 5100.77, 9 December 1998, Section 5(1)(2), (3)(3), (8)(3) and (8)(6).
Venezuela
In 2011, in its core document forming part of Venezuela’s reports on international human rights instruments, Venezuela stated:
Department of Human Rights and International Law of the Ministry of People’s Power for Defence
145. This Department was established by Decision No. DG-98818 of 17 October 1997 of the Ministry of Defence (now the Ministry of People’s Power for Defence) by order of the President of the Republic. It has its basis in articles 133 to 136 of the National Bolivarian Armed Forces Organization Act, in accordance with the guiding principles of the Constitution. The Department is attached to the Office of the Inspector-General of the National Bolivarian Armed Forces in accordance with Decision No. DG-002936 of 8 August 2007. The Department’s remit is to manage, coordinate and implement activities related to human rights and international humanitarian law that are planned, decided or ordered by the Inspector-General of the National Bolivarian Armed Forces. This takes place in accordance with current legislation, in order to promote, facilitate, protect and guarantee those rights within the military and the defence sector and to provide technical assistance to such military and civilian personnel as may require it. It also acts as a body for receiving individual complaints. 
Venezuela, Human rights instruments core document forming part of Venezuela’s reports, 22 February 2013, UN Doc. HRI/CORE/VEN/2011, submitted 5 July 2011, § 145.
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ICRC
The ICRC Commentary on the Additional Protocols states with respect to Article 82 of the 1977 Additional Protocol I:
The obligatory character of the present provision was maintained [at the adoption of the Article at the CDDH]. The word “ensure” is a term sometimes used in the Conventions; 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. 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. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 3344.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that legal advisers shall be available, when necessary, to advise military commanders at the appropriate level on the application of the law of war. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 156.
Delegates also teach that:
To solve specific problems, the superior can:
(a) ask for legal advice;
(b) seek the participation of a legal adviser in the theoretical training;
(c) make a legal adviser participate in normal staff work (e.g. for drafting and/or reviewing orders and instructions, for advice with regard to specifically protected objects). 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 285.
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