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