Monday, 29 March 2010

laws of war

At first blush it might seem odd or at least futile that the law could get involved in war. For war is after all the antithesis of law. It is what happens when legal remedies break down and states use other means to achieve their aims or vent their grievances. But in fact there is law relating to war and it has a very long history.

Much of the law of war is predicated on the principle that the goals under which war is fought should be restrained to political ones (without judging for this purpose whether they are justifiable or not) and in particular shall not include unnecessary destruction and hardship.

This has lead to the formation of a number of principles which have been enshrined in custom and since the mid-nineteenth century in international lawmaking treaties including the successive Geneva Conventions which started in 1864 and Hague Conventions which started in 1899.

The key principles which have been developed are:
  1. Fighting should only be with enemy combatants, not with civilians. However it has always been recognised, to use a horribly euphemistic phrase, that 'collateral damage' is inevitable, and civilians will be killed in the cross-fire and moreover in the effort to destroy the enemy's infrastructure. The bombing of Hiroshima was justified on the basis that it would shorten the Second World War, a justification which is possibly dubious on strict interpretation of the laws of war, even if true. Unfortunately civilian bombing campaigns seem to have become pretty much the accepted norm since.
  2. Allied to the above, combatants have a duty to identify themselves as such. Essentially this means wearing uniform as bearing arms openly. Provided they do so they have corresponding rights, including the right to prisoner of war status. Suicide bombers, even if authorised by a state who regards itself at war, which is usually not the case, therefore cannot be combatants. Mercenaries are not combatants and are not therefore entitled to prisoner of war status. Mercenaries involved in the Angolan War of Independence in the 1970s were tried and shot by firing squad after defeat and this was probably not a breach of the laws of war. Spies are also in a very difficult position as, by definition, they do not identify themselves. It is worth saying that having non-combatant status doesn't mean you are not entitled to a trial and have human rights, but this maybe more a theoritical than real position in the case of mercenaries and spies.
  3. Prisoners of war must conversely not be treated harshly or punished in any way.

  4. When a conflict has ended, persons who have committed or ordered any breach of the laws of war, may be held individually accountable through process of law. Hence the concept of 'war crimes'. There have of course been numerous examples of action for war crimes in the 20th and 21st century, starting with the Nuremberg trials and leading through to the Tribunal for Former Yugoslavia which has tried Milosovic (who died before the trial ended) and is currently trying Karadic. In 2002, the International Criminal Court was founded, although it has not been joined by the major players, China,India, USA and Russia. It has opened investigations into Uganda and Democratic Republic of Congo for alleged atrocities.

It is often said that history belongs to the victors and this could be said of law too. It is usually the victorious who apply the laws of war, retrospectively, to the vanquished. There are of course some exceptions such as the eventual if half-heartened prosecution by US authorities of its own soldiers involved in the My Lai massacre in South Vietnam (and more recently Abu Grahib, Iraq) but the general proposition is probably true.

Monday, 8 March 2010

Marriage vows

A lot the work I do is dealing with legal problems. So it's nice to look sometimes and the creation of legal relationships not what happens when they go wrong. No legal relationship could be more important than the relationship of marriage.
It cannot be denied that in UK at least marriage rates are declining. A useful site which graphically illustrates this trend is One interesting statistic is that in 1950 a first marriage was taking place every 1.6 minutes whereas in 2000 it was one every 2.9 minutes although this is slightly off set by an increase in second marriages in the last decade or so. The figures for divorces for the same period are 15.9 minutes (1950) and 3.4 minutes (2000). Another site says that in 2oo6 there were 237,000 weddings, the fewest since 1895 when the population of the country was not much more than half what it is now: marriage-hits-lowest-rate-since-records-began-almost-150-years-ago. About 0.1% of adults marry every year.

It is also necessary to bear in mind that gay and lesbian couples may now enter into civil partnerships and there is some controversy over proposals to allow such couples to insist on a church ceremony. One civil registrar tried to claim discrimination on the ground that being made to officiate a civil partnership offended her Christian beliefs but her challenge failed and she was instructed to get on with the job. Some clergy are now similarly up in arms because any amendment to the Equality Bill approved in the Lords will allow homosexual couples to say that they are being discriminated against if they are not allowed to be married in church as hetrosexuals are: see Clergy-could-be-sued-if-they-refuse-to-carry-out-gay-marriages-traditionalists-fear

Nonetheless let us celebrate marriage. After all, although I may be in a minority I have been happily married for 22 years and I am sure a lot of others can say the same.

Marriage ceremonies can take place if registered by the Church of England or some other religious bodies or can be civil only provided they take place at authorised venues. For a full list of the latter visit map of weddingvenues. You will even find the odd zoo listed amongst all the stately homes (I don't know if you can choose the actual enclosure).

Civil ceremonies often allow couples to choose their marriage vows, although many are adapted from the 1662 Common Book of Prayer which contains: 'To have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part'
Interestingly in the earlier prayer book of 1549, based on Latin texts, the wording was death us do depart'. I have tried to research the reason for the change and I think it was because the word depart changed its meaning (for those of you gramatically -inclined it became a non-transitive verb so you could no longer depart something or someone, only from something or someone). An alternative in the 1928 prayer book omitted the additional bride's vow of 'obey' and this seems now to have become the norm. I rather like the way liturgy gradually adapts to modern mores.

One interesting snippet to close. The Gender Recognition Act 2004 allows transexual people to change their legal gender. Before doing so they must dissolve any existing marriage. If their relationship is still strong enough couples can if they wish dissolve and then enter into a Civil Partnership, all on the same day.

Sunday, 7 March 2010

lawyers must be paid for telling the truth

I would like to mention a recent important Court of Appeal case which is about solicitors being paid. You might think that this is only of interest to my profession and that just mentioning the subject only serves to show that what a money-grabbing lot we all are ( I know several lawyer jokes - some are very funny, e.g George Burns: And God said: 'Let there be Satan so they don't blame everything on me and let there be lawyers do they don't blame everything on Satan'. More of the same on Warning: please ignore the ads for sleazy lawyers on this site). But bear with me on this one as the case establishes a very important principle for the operation of justice in this country, important to us all I think, which the first instance decision in the High Court put under threat.

The case, Buxton v Mills -Owen concerns a law firm concerns a client whose case on planning law began to look decidedly ropey and the client instructed the lawyer nonetheless to present an argument to the court which was untenable in law no doubt in the hope that the court would not realise it was being presented with a hopeless point. The solicitors rightly decided in these circumstances they had to withdraw. In the High Court is was held that if they did they should not be paid for the work they had done so far, implying that they should fight on or lose their fee.

Very often cases start off with unclear prospects and therefore require research of the evidence, and sometimes the law, before an opinion can be properly given. Or cases which look reasonable are blown out by a 'smoking gun' of evidence which could not be discovered until later in the day(and in some instances was deliberately concealed by the client).

Sometimes these developments just mean that to fight on is not worth the risk of costs and in those circumstances if the client is fully advised on the enhanced risks but still wants to fight on in the teeth of them, and pays any reasonable sums on account of costs required, the lawyer should continue provided there is still sufficient confidence in the solicitor -client relationship to keep it going (in practice though the relationship usually breaks down at this point as the solicitor advises the case should be abandoned but the client will not accept).

However even if the client has every confidence that the lawyer will pull it off, no lawyer can continue with a case that is untenable in law or present false evidence or withhold evidence that must be disclosed. Since the solicitors' ethical code must be followed this even raise the vista of a solicitor having to say to a judge (of course in the most persuasive way possible) in effect: 'I know my client's case is rubbish but he has suffered badly at the hands of the other party, so please find for him anyway'

In those circumstances, the lawyer must be allowed to withdraw rather than remain in such a position.

As Lord Justice Dyson has wisely said in Buxton v Mills-Owen ..'the common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years'.

There are some lawyer jokes that must never be taken seriously. One, by Patrick Murray, is one of those: 'a lawyer will do anything to win a case, sometimes even tell the truth'