offences, military justice systems, legal redress and complaints mechanisms, liability for
unlawful orders and for violations of human rights, rights of complaint, redress and appeal, salaries and pensions, and insurance rights for family members in case of accidental
death of, or injury to, members of the armed forces. 51
Box 7.4
The Scope of Defence Legislation: United States51
Many of the specific statutes that apply to the Department of Defense are contained in Title 10 of the United States
Code, which describes the functions of the Department of Defense, its powers, and its key officials. It establishes
the Joint Chiefs of Staff, combatant commands, the reserve components and their inter-relationships. Special
rules within Title 10 provide authority for military support to civilian law enforcement agencies (chapter 18),
humanitarian and other assistance to foreign countries (chapter 20), Department of Defense intelligence matters
(chapter 21), and the Uniform Code of Military Justice (chapter 47). Title 10 also includes provisions pertaining to
training, pay, procurement, and financial accountability.
There are statutory positions such as the general counsel for the secretary of defence, and for the Army, Navy,
and Air Force, and judge advocates general for the Army, Navy, and Air Force who assure proper legal advice,
reviews of programmes and operations, and oversight.
In legislating for the armed forces, parliaments can ensure that the rule of law is applied
not merely in the superficial sense of providing legal authority for the work of the armed
forces but also in a deeper sense: parliamentarians can ensure that the law governing the
armed forces is clear, comprehensive, consistent, and in conformity with human rights
standards.
Much of military law, however, is concerned with imposing specific legal duties upon members of the armed forces to underline the disciplined environment in which they operate,
e.g., dealing with desertion, absence without official leave, insubordination, mutiny, aiding
the enemy, and sleeping on duty. Those parts of military justice dealing with ordinary
crimes and disciplinary offences with no human rights implications are not of interest to
this study. Other aspects of military justice systems touching on the right to a fair trial
or where a member of the armed forces stands to be disciplined under military law for
exercising a human right such as free speech are, however, inseparable from this concern
with human rights (the question of how military justice conforms to fair-trial standards is
covered in Chapter 21).
4. Legislation and Human Rights of Armed Forces Personnel
Legislation may be utilized to set out in positive terms the civil, political, and social rights
of members of the armed forces. An example of a wide-ranging piece of legislation dealing
with the rights of members of the armed forces is the Law of the Russian Federation on the
Status of Military Personnel52 (see Box 7.5).
51 US response to the Information Exchange on the OSCE Code of Conduct.
52 The legal basis of the national system for the protection of the human rights of members of the armed forces
is the Constitution of the Russian Federation, the laws on “Defence”, “Military Obligation, Service and Army”,
“Status of Members of the Armed Forces”, “Providing Pensions for Persons Who Performed Military Service and
Officials of Internal Affairs and Their Families”, and a number of other legal acts.
50
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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