Practice Relating to Rule 141. Legal Advisers for Armed Forces
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.
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’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.