Military Law and Law of Armed Conflict

Overview of the Examination

  • Institution: National Defence University of Malaysia (UPNM)

  • Course: Military Law and Law of Armed Conflict (DUS 3032)

  • Academic Session: Short Semester 2023/2024

  • Exam Format:

    • Section A: 30 Objective Questions (30 Marks)

    • Section B: 7 Structured Questions (50 Marks)

    • Section C: Essay Questions (20 Marks)

  • Allowed References:

    • Armed Forces Act 1972

    • Government Gazettes

    • Geneva Conventions and Protocols

Course Learning Outcomes (CLO)

  1. CLO1: Identify the main features of the foundation of Malaysia's legal system, military, and armed conflicts law for the defence environment.

    • PLO: PLO1

  2. CLO2: Explain the provisions of the Armed Forces Act 1972 and Geneva Conventions.

    • PLO: PLO2

  3. CLO3: Demonstrate the application of the principles of military and armed conflict law whenever appropriate in the scenario of the defence environment.

    • PLO: PLO10

Examination Instructions

  • Objective Questions: Answer all questions on OMR form by choosing the best answer for each question (1 mark each).

Key Topics Covered in Objective Questions

Definition of Law

  • Key Options:

    • A: A system of rules or regulations governing the conduct of a community, society, or nation.

    • B: Sets of rules governed by a sovereign state with enforcement mechanisms.

    • C: Rules defining right and wrong for citizens.

    • D: Rules that must be passed by a parliamentary body.

Sources of Law

  • Written Law: Law enacted by Parliament or State Legislative Assemblies. The supreme source is the Federal Constitution.

    • Includes Statutes (Acts of Parliament) and Delegated Legislation.

  • Unwritten Law: Law derived from sources other than legislative enactment. Examples include:

    • A: English Common Law (applicable via Civil Law Act 1956, subject to local circumstances).

    • B: Islamic Law (applies in Syariah Courts for specific personal matters relating to Muslims).

    • C: Malay Customary Law (Adat Melayu).

    • D: Judicial Precedents (Stare Decisis).

    • E: Japanese occupation of Malaysia (1941-1948) [Not unwritten law].

Military Justice System Components

  • Main Branches:

    • i: Discipline System (investigation/prosecution under AFA 1972)

    • ii: Operations Law (related to military operations)

    • iii: Islamic Law Division

    • iv: Military Administrative Law

Key Government Structures

  • Branches of Government:

    • Legislative (Parliament): Responsible for drafting and enacting laws (e.g., the Armed Forces Act 1972).

    • Executive (Cabinet/Administration): Responsible for the implementation and administration of laws.

    • Judiciary (Courts): Responsible for interpreting laws and applying justice.

    • Cabinet (A component of the Executive branch).

Definitions and Concepts from the Armed Forces Act 1972

  • Active Service Definition:

    • i: Engaged in operations against enemies.

    • ii: Operation within or outside Malaysia for preservation of life and property.

    • iii: Part of forces in military occupation.

    • iv: Serving in a unit undertaking these tasks.

Malaysian Military Justice System Elements

  • Main Elements:

    • A: Weaponry

    • B: Discipline

    • C: Operations

    • D: Administrative

Volunteer Forces Structure

  • Elements of Volunteer Forces: Examples provided, including 'Askar Wataniah' and other branches.

Laws and Regulations

  • Common Law in Malaysia: Influences from local customs, including Adat Melayu and Chinese/Indian customary practices categorized as unwritten law.

Core Principles of International Humanitarian Law (IHL) / Law of Armed Conflict (LOAC)

  1. Distinction: Parties must distinguish between combatants (legitimate targets) and civilians (protected persons), and between military objectives and civilian objects.

  2. Proportionality: Military actions must not cause loss of civilian life/injury/damage that is excessive in relation to the concrete and direct military advantage anticipated.

  3. Military Necessity: Justifies measures indispensable for securing the complete submission of the enemy as soon as possible, provided they are not forbidden by international law.

  4. Humanity: Prohibits the infliction of suffering, injury, or destruction unnecessary for the accomplishment of legitimate military purposes.

Punishments and Regulations under AFA 1972

  • Summary Trials: Limitations and specific contexts for punishments imposed by specific ranks.

  • Minor vs Serious Offences: Examples of what constitutes minor, moderately serious, or serious offences and corresponding punishments.

Structured Questions (Case Studies)

  1. Validity of Commander’s Awarded Punishment: Evaluate if specific punishments awarded in given scenarios are valid, referencing AFA 1972 Sections 96 and 98.

  2. Definition of 'Subordinate': In accordance with AFA Regulations, clarify the role and restrictions of a subordinate commander.

  3. Investigation Procedures: Guidelines for conducting investigations and understanding different mechanisms within AFA 1972.

Essay Topics for Examination

1. Discuss the principle of limitation in international law.

The principle of limitation, particularly in International Humanitarian Law (IHL), dictates that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. This principle is codified primarily in Article 35 (1) of Additional Protocol I (AP I) to the Geneva Conventions and derived from customary international law and the 1907 Hague Regulations.

  • Unnecessary Suffering: It prohibits the use of weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (AP I, Art. 35 (2)). This links directly to the principle of humanity.

  • Environmental Protection: It also limits the means and methods used if they are intended or may be expected to cause widespread, long-term, and severe damage to the natural environment (AP I, Art. 35 (3)).

2. Explain types of conflicts under the Geneva Convention.

The Geneva Conventions (GC) and their Additional Protocols primarily recognize two types of armed conflicts, applying different bodies of law to each:

  • International Armed Conflict (IAC):

    • Occurs between two or more High Contracting Parties (States).

    • The full body of the four Geneva Conventions (GC I, II, III, and IV) and Additional Protocol I applies, providing broad protections to wounded/sick members of armed forces, naval forces, prisoners of war, and civilians in occupied territory.

  • Non-International Armed Conflict (NIAC):

    • Defined as armed conflicts taking place within the territory of a single state.

    • Governed primarily by Common Article 3 (CA 3) of the four Geneva Conventions.

    • If the conflict reaches a higher threshold of protracted armed violence between state forces and organized non-state armed groups, Additional Protocol II (AP II) may also apply, offering more comprehensive rules than CA 3, but less comprehensive than AP I for IACs.

3. Identify prohibited weapons according to international humanitarian law.

Prohibited weapons are those that are inherently indiscriminate (cannot be aimed precisely at a military objective) or cause unnecessary suffering (violating the principle of humanity). Key prohibitions include:

  • Chemical Weapons and Biological Weapons: Prohibited globally by the Chemical Weapons Convention (CWC) and the Biological and Toxin Weapons Convention (BTWC).

  • Weapons causing undetectable fragments: Protocol I to the Convention on Certain Conventional Weapons (CCW) prohibits the use of weapons that injure by fragments which are not detectable by X-rays in the human body.

  • Blinding Laser Weapons: Prohibited under CCW Protocol IV.

  • Anti-Personnel Mines: Restricted or prohibited in many contexts by the Ottawa Treaty and CCW Protocol II, due to their indiscriminate nature and long-term harm to civilians.

  • Dum-dum bullets: Prohibited due to the unnecessary suffering they cause.

4. Discuss the status of child soldiers under Additional Protocol I.

Additional Protocol I (AP I), specifically Article 77, provides special protection for children in International Armed Conflicts:

  • Age Threshold: Parties to the conflict must take all feasible measures to ensure that children who have not attained the age of fifteen years do not take a direct part in hostilities.

  • Recruitment Prohibition: Parties must refrain from recruiting children under the age of fifteen years into their armed forces.

  • Special Protection: If children under 15 do participate in hostilities and fall into the power of an adverse party, they remain entitled to the special protection accorded by this Article.

  • Note: The Optional Protocol on the Involvement of Children in Armed Conflict raised the minimum age for compulsory recruitment to 18, and set the minimum age for voluntary recruitment at 16, further strengthening protections.

5. Outline the composition of a Board of Inquiry under military law (AFA 1972 context).

A Board of Inquiry (BOI) is a formal investigative mechanism established under military law (often under the authority granted by the Armed Forces Act 1972 or its regulations) to determine facts pertaining to specific military incidents. The composition is typically outlined in service regulations:

  • Convening Authority: The power to convene a BOI usually rests with a senior commanding officer.

  • Composition: Typically consists of a President (a senior officer of appropriate rank, often a Major or above, depending on the subject matter) and at least two other Members (officers or other ranks, depending on the severity and nature of the inquiry).

  • Exclusion: The convening authority, or any person who has a direct interest or is personally involved in the matters under inquiry, cannot serve on the board.

  • Function: To impartially collect and assess evidence, record findings of fact, and often to provide opinions or recommendations regarding military necessity, accountability, and preventative measures.