ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ______

Legal advisers in armed forces

By ratifying the Geneva Conventions of 1949 and their Additional Protocols of 1977, a State commits itself to respecting and ensuring respect for these international legal instruments in all circumstances. Knowledge of the law is an essential precondition for its proper application. The aim of requiring legal advisers in the armed forces, as stipulated in Article. 82 of Additional Protocol I, is to improve knowledge of – and hence compliance with – international humanitarian law. As the conduct of hostilities was becoming increasingly complex, both legally and technically, the States considered it appropriate when negotiating Additional Protocol I to provide military commanders with legal advisers to help them apply and teach international humanitarian law.

An obligation for States and for provisions of international humanitarian law if they are to parties to conflict humanitarian law as widely as advise military commanders possible, in particular by including effectively. “The High Contracting Parties at all the study of this branch of law in times, and the Parties to the conflict their military training programmes. This obligation is analogous to that in time of armed conflict, shall contained in Article 6 of the same ensure that legal advisers are protocol (Qualified persons), under available, when necessary, to The role of the legal adviser which the States Parties must advise military commanders at the endeavour to train qualified appropriate level on the application Article 82 gives a flexible definition personnel to facilitate the application of the Conventions and this Protocol of the legal adviser’s role, while still of the Conventions and of Additional and on the appropriate instruction to laying down certain rules. Legal Protocol I. be given to the armed forces on this advisers have a dual role: they subject.” (Additional Protocol I, advise military commanders on the The States are free to choose Article 82). correct application of the civilian or military legal advisers. Conventions and of Additional However, the role of the legal Like all other rules enshrined in a Protocol I, and they give adviser, which is primarily treaty, Article 82 is mandatory. Its commanders guidance on how to preventive and operational, differs aim is to ensure that military teach these to the armed forces for from that of the judge advocate, who commanders have access to sound which they are responsible. While is concerned with military justice. advice on how to apply and teach these tasks are separate, they are the Conventions and Additional also complementary, because The States Parties must specify the Protocol I. training military personnel properly role and position of their legal in time of peace will make the advisers in precise terms, so that The choice of words in Article 82 adviser’s advice more effective in the advisers can carry out the tasks implies that the States Parties (and time of war. Article 82 therefore assigned to them under Article 82 national liberation movements, who outlines the work of legal advisers, effectively and efficiently. come under the heading of “Parties while leaving each High Contracting to the conflict”, albeit for a limited Party responsible for specifying their Tasks period) are responsible for this task role and the conditions under which and must ensure that it is carried they fulfil it. The tasks of legal advisers in time of out. To comply with this requirement peace differ from those they are States must therefore pass their Expertise required to perform during an armed own rules, to ensure that their conflict. armed forces do have legal While Additional Protocol I leaves advisers. States Parties a certain degree of In peacetime, their main task is to freedom as to the functions of their support the teaching of international While Article 82 is just one provision legal advisers, it does demand that humanitarian law. The target group of Additional Protocol I, its aim is they possess an adequate level of consists primarily of students at part of the general obligation on the expertise in international military schools, headquarters staff States Parties to disseminate the

International Committee of the Red Cross of the unit to which they are especially in the interpretation of the The State Party must also specify attached, junior commanders and law. the hierarchical relationship soldiers, especially on exercise. between legal advisers and the However, the legal adviser does not commanders they support. Advisers may also help to train replace the commander. assistant advisers who, in turn, can Commanders always retain their There are two options: legal be attached to subunits, take part in leading role and their responsibility advisers may be placed exclusively planning for major exercises and for within the decision-making process. under the command of the officer operations and assess the legal The role of the adviser is limited to commanding the unit or consequences of executing these briefing senior officers operating in headquarters to which they are plans, particularly with regard to the an increasingly complex legal attached, or they may be placed intended means and methods. environment. under the command both of that commander and of the legal Advisers can also be involved in the The adviser’s position in the department of their ministry of process of examining new weapons, hierarchy defence. means and methods of warfare stipulated in Article 36 of the Having clearly specified the role of Additional Protocol I. its legal advisers, the State Party Support for training must also specify the level in the In time of war, the legal adviser’s command structure at which they Introducing legal advisers into the main task is to advise on the are to provide their expertise. armed forces demonstrates a State application of, and compliance with, Article 82 implies two levels: Party’s commitment to improve international humanitarian law. In respect for international particular, legal advisers can give an • in their role as consultants humanitarian law and compliance opinion on current and planned regarding the application of the with it. The States Parties to the military operations, apply their Conventions and of Geneva Conventions and to expertise to specific issues facing a Additional Protocol I, advisers Additional Protocol I are hence commander, verify observance of could be attached to larger units required to fulfil their commitments the legal consultation process as it and higher levels of command; by applying the provisions of involves units under command and Article 82. The ICRC is prepared to remind commanders of their • where advisers are to support support them in this, and is obligations within the meaning of the teaching of international willing to help train legal Article 87 of Additional Protocol I humanitarian law, it is useful to advisers, e.g. by running courses (Duty of commanders). In the case place them in a more and seminars for armed forces of joint or multilateral operations, the operational context, at perhaps legal advisers of the various armed brigade or regimental level. forces involved should cooperate to ensure a degree of consistency, 01/2003

International Committee of the Red Cross