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I N T E R N A T I O N A L H U M A N R I G H T S L AW A N D
PRACTICE

Ilias Bantekas is Professor of International Law and Arbitration, Hamad

bin Khalifa University (Qatar Foundation), College of Law. He has advised
governments, international organisations and NGOs in most fields of human
rights and international law, and was a member of the Greek Truth Commit-
tee on Debt. His recent books include: Sovereign Debt and Human Rights
(with C. Lumina, Oxford 2018), and Commentary on the UN Convention on
the Rights of Persons with Disability ( jointly edited with M. A. Stein and
D. Anastasiou, Oxford 2018).

Lutz Oette is a Reader in International Law at SOAS, University of Lon-

don and Director of the SOAS Centre for Human Rights Law. He has pur-
sued human rights cases before several regional and international bodies,
and engaged with a range of actors in comparative research, advocacy and
reform projects aimed at developing and implementing international human
rights standards.
IN T E R N AT ION A L HU MA N
R IGHT S L AW A N D
P R A C T IC E
Third Edition
Ilias Bantekas
Hamad bin Khalifa University (Qatar Foundation)

Lutz Oette
SOAS, University of London
 University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
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It furthers the University’s mission by disseminating knowledge in the pursuit of

education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108711753
DOI: 10.1017/9781108612524

© Ilias Bantekas and Lutz Oette 2020

This publication is in copyright. Subject to statutory exception and to the provisions

of relevant collective licensing agreements, no reproduction of any part may take
place without the written permission of Cambridge University Press.
First edition Cambridge University Press 2013Second edition 2016Third edition
2020

Printed in the United Kingdom by TJ International Ltd, Padstow, Cornwall

A catalogue record for this publication is available from the British Library.

Library of Congress Cataloging-in-Publication Data

Names: Bantekas, Ilias, author. | Oette, Lutz, author.
Title: International human rights law and practice / Ilias Bantekas, Brunel
University; Lutz Oette, School of Oriental and African Studies, University of
 London.
Description: Third edition. | Cambridge, United Kingdom ; New York, NY :
Cambridge University Press, 2020. | Includes bibliographical references and
index.
Identifiers: LCCN 2020004146 (print) | LCCN 2020004147 (ebook) | ISBN
9781108711753 (paperback) | ISBN 9781108612524 (ebook)
Subjects: LCSH: Human rights. | International law and human rights.
Classification: LCC K3240 .B36 2020 (print) | LCC K3240 (ebook) | DDC
341.4/8–dc23
LC record available at https://lccn.loc.gov/2020004146
LC ebook record available at https://lccn.loc.gov/2020004147

ISBN 978-1-108-71175-3 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of

URLs for external or third-party internet websites referred to in this publication and
does not guarantee that any content on such websites is, or will remain, accurate or
appropriate.
This book is dedicated to the late Rupa Reddy, a dear colleague and talented
scholar whose passion for, and commitment to the human rights of women
will be an abiding memory and a lasting inspiration.
The cover image by Safia Ishaq Mohamed is a painting and artistic reflec-
tion of the arrest of members of the No to Women Oppression Group in Su-
dan. Safia Ishaq Mohamed graduated as a student of the Fine Arts College
in Khartoum in 2010, and used her art to speak to the role of women in so-
ciety. When she took part in demonstrations in 2011 as a member of the
pro-democracy Girifna protest movement, she was abducted and raped by
three Sudanese security officers. She was widely admired for her subse-
quent courage to speak out about her ordeal, posting her testimony on
YouTube.
Safia Ishaq Mohamed brought her case against Sudan before the African
Commission on Human and Peoples’ Rights, which is still pending (it was
declared admissible in 2014). She subsequently had to flee the country and
now lives in France where she has participated in several art exhibitions.
She strongly believes in the powerful role of art in addressing human rights
issues, which was particularly prominent in the paintings by women during
the Sudanese revolution in 2019.
 Contents
Table of Cases
List of Abbreviations

Introduction

1 International Human Rights Law and Notions of Human Rights:

Foundations, Achievements and Challenges
1.1 Introduction
1.2 The Development of Human Rights and International Human
Rights Law
1.2.1 Foundations
1.2.2 The American and French Declarations of Rights
1.2.3 The Struggle for Rights in the Nineteenth Century
1.2.4 World War I, the League of Nations and Human Rights
1.2.5 World War II, the Holocaust and the Foundations of the
International Human Rights System
1.2.6 The UDHR: Origins, Content and Significance
1.2.7 Cold War and Decolonisation
1.2.8 The Growth of International Human Rights Law
1.3 Current Challenges
1.3.1 International/Cross-border Dimension of Violations
1.3.2 Responsibility of Multiple Actors
 1.3.3 Effective Monitoring and Implementation
1.3.4 Human Rights Imperialism and Exceptionalism
1.4 The Idea of Human Rights: Theories and Critiques
1.4.1 Moral and Liberal Human Rights Theories
1.4.2 Meeting the Challenge: Reconstructing Human Rights
1.5 Universal Human Rights: Contestations and Practices
1.5.1 The Debate
Interview 1.1: Human Rights and the Uprisings in the Arab
World (Moataz El Fegiery)
1.5.2 Experiences in Combating Female Genital
Cutting/Mutilation
Further Reading

2 International Human Rights Law: The Normative Framework

2.1 Introduction
2.2 Sources
2.2.1 Treaties
2.2.1.1 Treaty-making
2.2.1.2 Reservations
2.2.2 Customary International Law
2.2.2.1 The UDHR and Customary International Law
2.2.3 Judicial Decisions as Source of Law
2.2.4 Soft Law
2.2.5 UNDRIP: A Soft Law Success Story?
2.2.6 Jus Cogens and Erga Omnes
2.3 Principles, Rights, Obligations and Scope of Application
2.3.1 Principles
 2.3.2 The Concept of Rights
2.3.3 The Right to Equality and Non-discrimination
2.3.4 Obligations
2.3.5 Derogation in Times of Emergency
2.3.6 Scope of Application
2.4 Implementation
2.4.1 The Role of National Human Rights Institutions

Interview 2.1: Reflections on the Work of Uganda’s Human

Rights Commission (Med S. K. Kaggwa)
2.5 State Responsibility and Human Rights Treaties as Self-
contained Regimes
2.6 Practical Application: The Role of Law Reform

Interview 2.2: The Campaign to Repeal Pakistan’s Hudood

Laws (Sohail A. Warraich)
Further Reading

3 Human Rights in Practice

3.1 Introduction
3.2 Civil Society
3.3 Social Movements
3.4 NGOs
3.4.1 General Considerations
3.4.2 Human Rights NGOs
3.4.3 Assessing the Role of Human Rights NGOs
3.5 Human Rights Defenders
Case Study 3.1: NGOs and Human Rights Protection in
Sudan
 3.6 Legal Professionals and Human Rights
3.7 Health Professionals and Human Rights
3.8 Human Rights Field Officers
Interview 3.1: Experiences of a UN Human Rights Officer
(Huma Shakeb Khan)
3.9 Human Rights Strategies
3.9.1 Documentation and Fact-finding
Interview 3.2: Documenting Human Rights Violations in
Volatile Environments: The Libyan Experience (Elham
Saudi)
3.9.2 Human Rights Reporting
3.9.3 Monitoring
3.9.4 Advocacy
3.9.5 Awareness-raising, Capacity-building and Human Rights
Education
Case Study 3.2: Responding to Serious Human Rights
Violations in Darfur, Sudan – Strategies, Critiques, Impact

Further Reading

4 The United Nations Charter System

4.1 Introduction
4.2 The Human Rights Dimension of the Charter
4.3 The Office of the High Commissioner for Human Rights
4.4 The HRC
4.4.1 The UPR
4.4.2 The HRC’s Complaints Procedure
 4.5 Special Procedures
Interview 4.1: With Former UN Independent Expert (Cephas
Lumina)
4.5.1 Communications
4.5.2 Country Visits
4.5.3 Annual Reports
Case Study 4.1: Reprisals against Those Collaborating with
UN Human Rights Procedures
4.6 The UNGA and Human Rights
4.7 The UNSC
4.7.1 Fact-finding in Practice: The UN Mission in the Gaza
Conflict
Further Reading

5 The UN Human Rights Treaty System

5.1 Introduction
5.2 Common Features of International Human Rights Treaty
Bodies
5.3 Reporting Procedure
5.3.1 Overview
Interview 5.1: Using Shadow Reports to Promote Gender
Equality and Combat Sexual Violence: South Africa (Lesley
Ann Foster)
5.3.2 Strengthening the Reporting Procedure
5.4 General Comments/Recommendations
5.5 Complaints Procedures and Jurisprudence of Treaty Bodies
5.5.1 Overview
 5.5.2 The HRCtee
5.5.3 Breadwinners, Social Security and Discrimination:
Zwaan-de Vries v. The Netherlands
5.5.4 The CERD
5.5.5 Still Facing Discrimination: Durmic v . Serbia and
Montenegro
5.5.6 The CtAT
5.5.7 Rendered Defenceless: Agiza v . Sweden
5.5.8 The CtEDAW
5.5.9 ‘We Don’t Believe You’: Vertido v . The Philippines
5.5.10 The CtRPD
5.5.11 Shortchanged: Nyusti and Takács v . Hungary
5.5.12 Achievements and Challenges

Interview 5.2: Working for the CESCR (Eibe Riedel)

Further Reading

6 Regional Human Rights Treaty Systems

6.1 Introduction
6.2 The European Human Rights System
6.2.1 Overview
6.2.2 The ECHR
6.2.3 Key Institutions
6.2.4 The ECtHR: Structure and Functions
6.2.5 Jurisprudence of the ECtHR
6.2.5.1 Development of the ECtHR’s Jurisprudence
6.2.5.2 The ECtHR’s Interpretation of the ECHR
6.2.5.3 Responses to the ECtHR’s Jurisprudence
 6.2.6 Impact
Interview 6.1: The Nature and Impact of Litigation
Concerning Turkey (Başak Çali)

Interview 6.2: The Nature and Impact of Litigation

Concerning Turkey and Russia (Bill Bowring)
6.2.7 The Struggle for Efficiency, Effectiveness and
Institutional Reforms
6.2.8 The EU
6.3 The Inter-American Human Rights System
6.3.1 Overview
6.3.2 The IACHR
6.3.3 The IACtHR
6.3.4 Impact
Interview 6.3: An Intimate Experience of the IACtHR as
Litigant and Senior Staff Attorney (Oswaldo Ruiz-
Chiriboga)

6.4 The African Human Rights System

6.4.1 Overview
6.4.2 The ACmHPR

Case Study 6.1: Modise v. Botswana and the Question of

Nationality Rights
6.4.3 Impact
6.4.4 The ACtHPR
6.4.5 African Regional Economic Courts
Interview 6.4: Making the System Work (Ibrahima Kane)

6.5 The Arab Human Rights System

 6.6 Towards an Asian Human Rights System?
6.7 Comparison of Regional Systems
Further Reading

7 Individual Complaints Procedures

7.1 Introduction
7.2 Admissibility
7.2.1 Jurisdiction
7.2.1.1 Rationae Personae : Who can Bring a Complaint?
7.2.1.2 Against Whom can a Complaint be Brought?
Case Study 7.1: Protection against the Implementation of
UNSC Sanctions: Sayadi and Vinck v. Belgium

7.2.1.3 Rationae Materiae : What Rights?

7.2.1.4 Jurisdiction in Respect of Extraterritorial Conduct
7.2.1.5 The Long Reach of the ECHR: Al-Skeini v . UK
7.2.1.6 Rationae Temporis : When?
7.2.2 Exhaustion of Domestic Remedies
7.2.2.1 What Remedies Must be Exhausted?
7.2.2.2 ‘An Affront to Common Sense and Logic’: Dawda
Jawara v. The Gambia
7.2.3 Other Procedural Requirements
7.2.3.1 Time Limits
7.2.3.2 Duplication
7.2.3.3 Well-foundedness
7.2.3.4 Abuse of Rights
7.2.3.5 Anonymity
7.3 Merits
 7.4 Decisions by Human Rights Treaty Bodies
7.5 Implementation of Decisions and Judgments
Case Study 7.2: Restoring Ancestral Lands to Indigenous
Peoples – Mayagna (Sumo) Awas Tingni Community v.
Nicaragua

7.6 Additional Procedural Options

7.6.1 Interim Measures
7.6.2 Friendly Settlements
Interview 7.1: Nepal before the Human Rights Committee
(Mandira Sharma)

7.7 The Hissène Habré Case: The Interplay between Domestic,

Regional and International Proceedings
Further Reading

8 Civil and Political Rights

8.1 Introduction
8.2 The Right to Life
8.2.1 Practice
8.2.2 Sources
8.2.3 The Prohibition of Arbitrary Deprivation of Life
8.2.4 McCann v. United Kingdom : Absolute Necessity in the
European Court of Human Rights’s Jurisprudence
Case Study 8.1: The Killing of Bin Laden and the Right to
Life

8.2.5 The Death Penalty under International Law

8.2.6 Positive Obligations to Protect the Right to Life
8.2.6.1 Providing Protection against Threats to Life
 8.2.6.2 Duty to Investigate, Prosecute and Punish and to
Provide Redress
8.2.7 A Right to Survival?
8.3 The Right to be Free from Torture and Other Ill-treatment
8.3.1 Practice
8.3.2 Sources
8.3.3 The Absolute Prohibition of Torture
8.3.4 The Case of Gäfgen and the German Torture Debate
8.3.5 The Definition of Torture and Other Forms of Ill-
treatment and Punishment
8.3.6 Obligations
Interview 8.1: The Role of Medical Documentation in
Combating Torture: Istanbul Protocol (Dr Önder Özkalipçi)

8.4 The Right to Liberty and Security of Person

8.4.1 Practice
8.4.2 Sources
8.4.3 Scope of the Right to Liberty and Security
8.4.4 Justification of Arrest and Detention
8.4.5 Administrative Detention: Law and Power in the Pursuit
of Policy
8.5 The Right to a Fair Trial
8.5.1 Practice
8.5.2 Sources
8.5.3 Main Features of the Right to a Fair Trial
8.5.3.1 General Principles
8.5.3.2 Criminal Proceedings
 Case Study 8.2: The Problem with Military and Special
Courts
8.6 Enforced Disappearance as Multiple Human Rights Violation

Interview 8.2: Inquiries into Enforced Disappearances in Sri

Lanka (M. C. M. Iqbal)

8.7 Qualified Rights, with a Particular Focus on Freedom of

Expression
8.7.1 Practice
8.7.2 Sources
8.7.3 Freedom of Religion vs Freedom of Expression
8.7.4 To Wear or Not to Wear: Freedom of Conscience and
Religion, the Rights of Women and the Veil
Further Reading

9 Economic, Social and Cultural Rights

9.1 Introduction
9.2 Brief Historical Context of ESC Rights
9.3 Progressive Realisation and the Nature of State Obligations
9.4 Resource Implications: The Obligation to Utilise ‘Maximum
Available Resources’

Case Study 9.1: United States Budget Allocated to Primary

and Secondary Education
9.5 Minimum Core Obligations
9.6 Justiciability of ESC Rights
9.6.1 Individual Communications and the ICESCR Optional
Protocol
9.6.2 The ECSR
 9.7 Extraterritoriality of ESC Rights
9.8 Indicators and Benchmarks for Measuring Compliance
Case Study 9.2: Indicators on the Right to Food
9.9 The Right to Health

Interview 9.1: Greek NGO Implements the Right to Health

for the Socially Excluded (Tzanetos Antypas)
9.10 The Right to Water
Case Study 9.3: The Deprivation of Water Rights as Cruel
and Inhuman Treatment

9.11 The Right to Education

9.12 The Right to Food
9.13 Cultural Rights
Further Reading

10 Group Rights: Self-determination, Minorities and Indigenous

Peoples
10.1 Introduction
10.2 The Nature of Collective Rights
10.2.1 External Self-determination
10.2.2 Exceptionalism in the External Dimension of Self-
determination
10.2.3 A Test for Sovereignty in the Era of Fiscal
‘Occupation’
Case Study 10.1: Participatory Budgeting in Porto Alegre,
Brazil
10.3 Minorities as a Subject of Human Rights
 10.3.1 The Historical and Political Context: Should Minorities
be Treated Differently from Majorities?
10.3.2 Membership Rights
Case Study 10.2: The Malay Bumiputra Policy

10.4 Indigenous Peoples: Is there a Need for Additional

Protection?
10.4.1 Indigenous Rights over Traditional Lands
10.4.2 Indigenous Land Rights in Contemporary International
Law
10.4.3 Indigenous Ownership as a Right to Property
10.4.4 Special Considerations in the Design of Indigenous
Peoples’ Development Plans within the World Bank
10.4.5 The Chad–Cameroon Pipeline and the Baka/Bakola:
What to Look for in Social Impact Assessments
Further Reading

11 The Human Rights of Women

11.1 Introduction
11.2 Normative Framework
11.2.1 Key Violations of Women’s Human Rights: The
Convention on the Elimination of All Forms of Discrimination
against Women
11.2.2 Critiques of CEDAW
11.2.3 CEDAW, Violence against Women and Reproductive
Rights
11.3 Conceptual Development
11.3.1 The Development of Feminist Legal Theory and
Women’s Human Rights
 11.3.2 Critiques of Liberal and Non-discrimination
Approaches to Women’s Human Rights
11.3.3 Critiques of ‘Western’ Feminist Approaches to
Women’s Human Rights
11.3.4 Sex, Gender and Sexuality
11.4 Women’s Human Rights and Domestic Contexts: ‘Honour
Crimes’ in the English Legal System
11.4.1 Definitions and Concepts of ‘Honour’
11.4.2 Practical Legal Approaches to ‘Honour Crimes’:
Culture, Gender and Mainstreaming
11.4.3 Non-state Actors and Due Diligence: A Human Rights
Response?
Case Study 11.1: Banaz Mahmod
Further Reading

12 Children’s Rights
12.1 Introduction
12.2 Childhood: A Non-static Concept
12.3 The Need for a Specialised Protection Regime
12.4 Fundamental Principles
12.4.1 The Child’s Best Interests
12.4.2 The Child’s Right to be Heard
12.4.3 Right to Life, Survival and Development
12.4.3.1 Child Soldiers
12.4.4 Non-discrimination
Case Study 12.1: Discrimination against Fathers in Custody
Proceedings: The Critical Role of Neuroscience
 Interview 12.1: The State of Children’s Rights (Benyam
Dawit Mezmur)
12.5 Children’s Right to be Free from Poverty
Case Study 12.2: Anti-child Poverty Legislation in the United
Kingdom and Austerity Measures

Further Reading

13 The Recognition and Protection of the Human Rights of

Vulnerable Groups and Persons
13.1 Introduction
13.2 Vulnerability and International Human Rights Law
13.3 Vulnerable Groups and Persons
13.3.1 Race
13.3.2 Gender, Gender Identity and Sexual Orientation
Case Study 13.1: A Family Life before National and
Regional Courts
13.3.3 Persons with Disabilities
13.3.4 Persons Living in Extreme Poverty

Interview 13.1: Into the Heart of Everyday Violence and

Human Rights Violations: Conducting Research on, and
with, Marginalised and Vulnerable Persons (Morten Koch
Andersen)
13.3.5 Old Age
13.3.6 Refugees and Migrants
13.3.6.1 The Protection of Persons in Flight or Movement
13.3.6.2 The Protection of Refugees in International Law
13.3.6.3 The Protection of Migrants
 Further Reading

14 The Right to Development and Sustainable Development

14.1 Introduction
14.2 From Human Development to Sustainable Development
14.3 The Right to Development
14.3.1 Making the RTD Justiciable
14.3.2 Justiciability of Sustainable Development
Case Study 14.1: Justiciability of Sustainable Development
Claims
14.4 Global Partnerships for the Financing of Development
14.5 From the MDGs to the SDGs

Interview 14.1: Microfinance Non-governmental Organisation

(NGO) (Ramanou Nassirou)
14.6 Sovereign Debt and the Enjoyment of Fundamental Rights
14.6.1 Accumulation of Sovereign Debt and its Human Rights
Dimension
14.6.2 Odious, Illegal and Illegitimate Debt
14.6.3 Unsustainable Debt
Case Study 14.2: The Parliamentary Committee on the
Truth about the Greek Debt: The Artificiality of Greek Debt
and its Odious Nature
Further Reading

15 Victims’ Rights and Reparation

15.1 Introduction
15.2 The Development of the Right to Reparation
15.3 The Right to Reparation in International Human Rights Law
15.3.1 Treaties and UN Declarations
15.3.2 Practice at the Inter-state Level
15.3.3 State Practice at the National and Transnational Level
15.4 The Right to Reparation in International Humanitarian Law
15.5 The Right to Reparation in International Criminal Law
15.6 The Right to Reparation and Violations by Non-state Actors
15.7 The Right to Reparation for Historical Injustices and
Violations
15.8 The Notion and Legal Significance of the Term ‘Victim’
15.9 The Procedural Right to an Effective Remedy
15.9.1 Overview
15.9.2 The Nexus between Civil and Criminal Proceedings:
Rajapakse v . Sri Lanka
15.9.3 The Right to Property, and the Choice between
Investment Arbitration and Human Rights Avenues
15.10 The Substantive Right to Reparation
15.10.1 State Responsibility
15.10.2 Liability
15.10.3 Standard of Reparation
15.10.4 Forms of Reparation
15.10.5 Restitution
15.10.6 Compensation
15.10.7 Types of Damages
15.10.8 Proyecto de Vida : Loayza Tamayo v. Peru
15.10.9 Should Previous Conduct be Taken into Consideration
when Awarding Compensation?
15.10.10 Rehabilitation
 15.10.11 Satisfaction
15.10.12 Guarantees of Non-repetition
15.10.13 Reparation for the Violation of Collective Rights:
Saramaka People v . Suriname
15.10.14 A Brief Assessment and Outlook
15.11 The Double-edged Sword of Victims’ Politics
15.12 Negotiating, Litigating and Administering Reparations:
Experiences from the Holocaust and World War II Reparations
15.13 Reparation in Action: Litigating Human Rights Cases
15.13.1 Litigation Strategies
15.13.2 Pursuing Reparation Claims, with Particular Reference
to Litigating Torture Cases
Interview 15.1: Litigation, Advocacy and Social Change
(Basil Fernando)

Further Reading

16 The Application of Human Rights in Armed Conflict

16.1 Introduction
16.2 The Fundamental Premises of IHL
16.2.1 Distinction between Combatants and Non-combatants
16.2.2 Restricted Targeting of Military Objects
16.2.3 Means and Methods of Warfare are Not Unlimited
16.3 Rights and Obligations in Humanitarian Law
16.4 Humanitarian Law as Lex Specialis to Human Rights Law
16.5 Why Human Rights Bodies Find the Application of
Humanitarian Law Problematic
16.6 Human Rights in Situations of Military Occupation
 16.6.1 The Extraterritorial Application of Human Rights in
Occupied Territories
16.6.2 The Effective Control Test
16.6.3 The Decisive Influence Test
16.7 The Relevance of the Law to Battlefield Conditions
16.7.1 Human Physiology in Combat Situations
Interview 16.1: Battlefield Compliance (Charles Garraway
and Anon.)
16.7.2 The Dilution of Humanitarian Law and Problems in
Ensuring Compliance
Further Reading

17 Human Rights and International Criminal Justice

17.1 Introduction
17.2 Relationship between International Criminal Law and
Human Rights
17.3 Individual Criminal Liability under International Law
Case Study 17.1: International Criminal Liability at the
Nuremberg Trial
17.4 The Enforcement of International Criminal Law
17.5 Universal Jurisdiction
17.6 Peace vs International Criminal Justice
Interview 17.1: Former Chief Public Prosecutor and Director
of the Norwegian National Authority for Prosecution of
Organised and Other Serious Crime (Siri Frigaard)
17.7 Core International Crimes
17.7.1 Genocide
 17.7.2 Crimes against Humanity
17.8 The Place of Immunities in Human Rights and International
Criminal Justice
Further Reading

18 Human Rights and Counter-terrorism

18.1 Introduction
18.2 The Legal Nature of Terrorism
18.3 The Discussion on Underlying or Root Causes
18.4 The Obligation of States to Protect their Populations from
Terrorism
Case Study 18.1: Finogenov and Chernetsova v. Russia :
European Court of Human Rights Admissibility Decision of
18 March 2010
18.5 Human Rights in Counter-terrorism Operations
18.5.1 Anti-terrorist Legislation and the Principle of Legality
18.5.2 Permissible Restrictions and Derogations Arising from
Terrorist Threats
18.6 The Right to Life in Counter-terrorism Operations
18.6.1 Situations when Lethal Force is Permissible
18.6.2 Targeted Killings and ‘Shoot-to-kill’ Strategies
18.7 Attempts to Justify Arbitrary Detention
18.8 Unlawful Extraditions and Illegal Renditions of Suspected
Terrorists
18.8.1 Washing One’s Hands and Hiding Every Trace
18.8.2 From Arbitrary Detention and Unlawful Extradition the
Road to Torture is Open …
Case Study 18.2: Al-Rabiah v. USA
 18.9 Legal and Other Strategies Regarding Disappeared Terrorist
Suspects
18.9.1 The Potency of Advocacy and Outreach
18.9.2 Tracing Strategies and Release Arguments
18.9.3 Advocacy Strategies
18.9.4 Counter-terrorism: The Real Testing Ground for Erga
Omnes

Interview 18.1: Legal Defender of Guantánamo Detainees

(Clive Stafford Smith)

Further Reading

19 Human Rights Obligations of Non-state Actors

19.1 Introduction
19.2 The Status of NSAs in Human Rights Law
19.3 Multinational Corporations in the Human Rights
Architecture
19.3.1 MNCs as Foreign Investors
19.3.2 Human Rights and Foreign Direct Investment
19.3.3 Emerging Human Rights Obligations of MNCs in
Multilateral Treaties and Soft Law
19.3.4 MNC Liability under Tort Law
19.3.5 MNCs as Influencers and their Due Diligence
Obligations
Case Study 19.1: Unilateral Repudiation of Arbitral Awards
Violating Constitutional Guarantees
19.4 Human Rights Obligations of International Organisations
19.4.1 General Obligations
 Case Study 19.2: Non-consideration of Economic and
Social Rights by the IMF in Tanzania
19.4.2 International Organisations as Violators of Human
Rights: The Need for Dual Attribution
Case Study 19.3: Complicity of States through/with IGOs

19.5 National Liberation Movements and Armed Rebel Groups

19.5.1 ‘To Suffer thy Comrades’: Responding to Human Rights
Abuses by NSAs in the Philippines
Interview 19.1: Judge and Activist on Philippines’ Armed
Groups (Soliman M. Santos)

Further Reading

20 Globalisation and its Impact on Human Rights

20.1 Introduction
20.2 The Origins and Nature of Globalisation
20.3 Does the Existing Model of Trade Liberalisation Promote
Development and Alleviate Poverty?
20.3.1 Liberalisation of Agriculture and its Impact on Food
Security
Case Study 20.1: Liberalisation of Zambia’s Maize
Production

Interview 20.1: The Director of Food First (Eric Holt-

Giménez)
20.4 How Intellectual Property Rights Hinder Access to
Essential Medicines for the Poorest
Case Study 20.2: Biopiracy and the Mayocoba Bean
Another Random Scribd Document
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it will not be accounted unreasonable if, when they shall be expected
to maintain the same appearances as those which are now
maintained by the household troops, they should also expect to
receive the same consideration with respect to pay which had been
enjoyed by their predecessors.—Under the circumstances above
stated, especially the circumstance of an original outlay of nearly half
a million sterling, together with the interest to be paid thereupon, it
may reasonably be questioned whether any advantage could accrue
to the public, even on the score of expense, by substituting troops of
the line for the performance of the London duties in lieu of the
household regiments. In every other respect but that of expense, the
transmutation would be productive of incalculable detriment to the
public service.
"I proceed to the second objection raised against the maintenance of
the household troops—namely, 'that the household troops are
exempted from the ordinary tour of colonial service.' It will presently
be shown that exemption from a portion of colonial service must, of
necessity, take place in favour of any body of troops (whether
household or of the line) which shall be appointed to the London
duties, provided the said duties shall continue to be carried on, as
heretofore, with perfect efficiency and with perfect safety to the
public service. Upon all other occasions (save in a portion of the
colonies) the battalions of the Foot Guards have taken their full
share of foreign service with the regiments of the line. The proud
memorials which are borne upon the colours of those distinguished
battalions afford abundant testimony of their achievements in the
field throughout the late war, from the memorable plains of Lincelles,
under their late revered Colonel-in-Chief, the Duke of York, to the
post of Hougumont, where, to use the words of the Duke of
Wellington, the battalions of Guards 'set an example which was
followed by the whole British army,' in that eventful struggle when it
belonged to a comparative handful of English, Scotch, and Irish
soldiers to restore the balance of trembling Europe! Nor have the
Guards been spared since the peace upon occasions where
prospects were held out for service in the field. In the year 1826,
when an expedition was suddenly despatched for Portugal, a
brigade of Guards was placed on ship board in less than 48 hours. In
1838, when it became expedient to augment our forces in North
America, the first troops that embarked were a brigade of Guards.—
Nor was it amongst the least of the advantages to be drawn from the
establishment of our household troops, as at present maintained,
that the battalions of the Foot Guards are held at all times in a state
of the most perfect efficiency, and available at any moment for
service in the field, whilst it will often occur that scarcely a single
battalion can be drawn from amongst the regiments of the line,
serving at home, in a state perfectly efficient for field service abroad.
Nor can this be wondered at when it is considered that the battalions
of the line which are stationed in the United Kingdom consist only of
those which have recently returned home from the East or West
Indies, or other of our colonies, in order to recruit, to refit, and
reorganize, and at the end of four years to be despatched again to
some foreign station. But if the household troops are exempt from
taking their turn of duty in certain of the colonies, there are other
duties which press far more severely upon the brigade of Foot
Guards than upon any other portion of the British army. Let a course
of 25 years' service be taken, and let a comparison be made
between the number of night duties performed, the number of nights
when the soldier has been kept out of bed, in a battalion of Foot
Guards, and the number of similar duties performed in any battalion
of the line, and the balance will be as three or four to one against the
Guards.—Hence is it that the casualties produced by consumption
and other pulmonary diseases are exceedingly more numerous
amongst the battalions of the Foot Guards than amongst any other
battalions in her Majesty's service.
"I come now to the third objection that has been raised against the
household troops—namely, 'that the officers of the household corps
(especially of the Foot Guards) enjoy privileges with respect to rank
which are not enjoyed by the officers of regiments of the line.' No
doubt the privileges with respect to rank which are enjoyed by
officers of the household corps are high privileges. But the question
is, whether the Sovereign of these kingdoms shall be despoiled of
the prerogative which has been so long exercised by the Sovereign,
of maintaining near the Royal person a select body of household
troops, and of conferring upon the officers of such select body some
especial mark of Royal favour? I deny that the privileges accorded to
the officers of the Guards, with respect to rank, have engendered
invidious feelings amongst the officers of the army at large.
Individuals, no doubt, will be found in every service to complain of
wrongs and of grievances. But the said privileges have not been of
ex post facto creation. They have been productive of no breach of
contract or of faith with the officers of other corps. Every officer now
serving in the line accepted his commission subject to the
disadvantages which might arise from the privileges accorded to the
officers of the household troops with respect to brevet rank and
brevet promotion.
"The most important question of all remains to be considered—a
question which, I am persuaded, can never have presented itself to
those Hon. members of the House of Commons who would advocate
the disbandment of our household corps. By what description of
troops, and by what course of service, are the military duties of this
metropolis to be regulated and carried on when the household corps
shall have ceased to exist?
"It has already been explained that the battalions of the line, which
are stationed from time to time in the United Kingdom, are, generally
speaking, amongst the least effective of any of Her Majesty's
service. The evil is unavoidable, owing to the inefficient state in
which regiments usually return home from colonial or other service
abroad. Such, then, would be the description of troops to which the
London duties would be assigned in the event of the household
corps being disbanded. Moreover, it is the general rule of the
service, that regiments shall change their quarters every year; but
suppose an exception were made in favour of the regiments
performing the London duties, and that such regiments were
retained in London two years, instead of one, still what would be the
consequence?—That just as they were beginning to be inured to the
duties of the metropolis, they would be marched off, and be
succeeded by other regiments, whose apprenticeship would then
have to commence. Woe to this vast and opulent metropolis upon
the day of riot or of actual disturbance, when the public peace and
the protection of property shall be committed to raw and
inexperienced troops; and all troops must be accounted raw and
inexperienced (however high their qualifications in other respects)
which shall have been nowise initiated in the peculiar duties which
they are called upon to perform. Had the celebrated light division of
the lamented Moore—had the famous fighting division of the gallant
Picton, landed at Portsmouth at the termination of the late war, fresh
from the fields of all their glory, flushed with the pride of all their
victories, and thence been ordered to take the London duties—had
they been accompanied with the cavalry brigade which La Marchant
led in the onset at Salamanca, or by the cavalry brigade which
Ponsonby headed in their charge against the column of 12,000 at
Waterloo, I would have accounted the whole of those distinguished
corps, from the moment they had crossed Westminster-bridge, as
raw and inexperienced troops in respect to the duties upon which
they were about to enter, so utterly different are the military duties
required by the garrison of London from the military duties performed
by the British army in any other part of the world. You are aware that
no portion of my military service has been passed in the household
regiments. I entertain no favour or affection towards those corps
above that which I bear towards the whole army. I set no higher
value, as soldiers, upon a battalion of Guards than upon a battalion
of the line. It is solely on account of the apprenticeship they have
served—it is because, in addition to their general duties as soldiers,
they have been trained from their enlistment to the peculiar duties
which belong to a London garrison—because they have been
instructed in the delicate and the critical position in which they are
often placed whilst on duty—because they have been taught to bear
and forbear—because they are conversant with all the arts, and
intrigues, and temptations of a London populace—because they are
familiar with all the public departments, the public offices, and the
public authorities, as well as with all the localities within the bills of
mortality,—it is on these grounds that I pronounce the household
corps to be by far better fitted for the London duties than can ever be
the case with any other portion of her Majesty's troops. To the
foregoing advantages, I would add the perfect understanding which
has been established and cemented between the household corps
and the metropolitan police. The beautiful manner in which their
reciprocal duties are blended on every occasion of being brought
together amounts to a piece of mechanism, which no exertions could
ever preserve under a continued introduction of fresh and
inexperienced troops.
"The household corps of the British army represent a body of troops
which, for appearance, for discipline, for intelligence, and for
respectability, are unequalled by the troops of any other nation upon
earth. They reflect credit upon the Sovereign, upon the Government,
upon the service, and upon the nation at large. They serve to
impress every foreigner who visits this country with a high opinion of
our military character, and of our military power. Yet have
propositions been entertained for disbanding these household corps.
The result that would follow upon their disbandment is manifest.
That, whereas the military duties of London are now, and have been
hitherto, conducted in a manner the most perfect and the most
efficient, they would be committed henceforth to different portions of
Her Majesty's troops, which, by reason of their frequent relief, and
their consequent want of experience, could at no time be expected to
carry on the military duties of London with equal efficiency for the
maintenance of the public peace, and the protection of public
property; and in the event of any serious disturbance arising (which
God avert!) the disbandment of our household corps, and the
dissolution of that unity of service which is at present so happily
established between the military and the civil forces of the
metropolis, might be productive of consequences fatal to the security
of the metropolis itself, and to the interests of the empire at large.—I
remain, my dear Sir Henry, with the greatest respect, yours most
faithfully,
"J.C. Dalbiac, Lieutenant-General.
"13, Albany, March 9, 1840."
Sir Charles Dalbiac's letter is certainly a strong appeal to the army
and country; and as one of the staff of Picton's division, I particularly
feel it. What Sir Charles says, as to the soldiers of that division
taking the duties of London, I readily admit to be quite correct. My
objection is not to the Guards, but to the unnecessary and injurious
privileges possessed by their officers. Perhaps, however, the
desirable object I have in view, may not be considered attainable;
and should this prove the case, it might not be unreasonable to
expect, that these corps should be kept perfectly distinct from the
regular regiments; and that no exchange shall ever be allowed
between officers of the Guards and those of the regular army. If they
must continue a privileged body, to the injury of the service, their
privileges ought not to be allowed to hurt even the feelings of the
latter.
All regular regiments of cavalry, infantry, and artillery, should, as
before observed, be liable to serve in any part of the world, in case
of war or commotion; but they should from many parts of it be
invariably and immediately re-called, as soon as the causes for
which they were sent out had been removed; but these regiments
might be stationed wherever it should be deemed expedient, and for
any period; for instance, in such countries as North America, the
Cape of Good Hope, the islands in the Mediterranean, &c.
Service in the regular army being limited to ten years only, there
could be no necessity in future for burdening the country with any
other pensions than those already proposed for well behaved non-
commissioned officers and soldiers, except in cases of severe
wounds, or loss of health in the service; but both these should be
placed under very strict regulations; and my object for so limiting the
period is, that when the time for discharging a soldier arrives, he
would not be too old to return to and resume his former occupation
or trade; for, I am sorry to say, that old soldiers, in general, are rather
addicted to drunkenness, and consequently have become unfit for
the quiet walks of life; and practice in war also teaches us, that
experienced officers, and young but well-disciplined soldiers, always
achieve the most brilliant and enterprising feats of heroism in battle
or at sieges; and even in skirmishing I have never found that
veterans were to be preferred. There were exceptions occasionally
met with, but those who have seen much of modern warfare, will, I
think, coincide with me in these opinions.
To effect some of the objects I have in view, it should be permanently
settled, how many corps of cavalry, infantry, engineers, artillery, and
marines, are to constitute the regular army of Great Britain and
Ireland; and their respective establishments in officers should
likewise be permanently fixed upon; for I am most anxious, and I
consider it to be practicable, to do away with half-pay to officers; and
although the peace and war establishments of corps, as to non-
commissioned officers and privates, may vary, I do not see, if officers
are not unnecessarily and improperly taken away from their
regiments, why their numbers should ever be increased or
decreased; for the whole being efficient, and well instructed, they
could, in a very short time, with the aid of intelligent non-
commissioned officers, train such recruits as it might be found
requisite to call out to augment the establishments of corps; and thus
a considerable saving to the country may be effected.
Situated as Great Britain now is with regard to other nations; and
considering the number of troops likely to be at all times required in
some of our foreign possessions, together with the state of Ireland,
and also how very few corps are now available for home service;
and even bearing in mind our fine army of reserve, but which ought
not unnecessarily to be called out, and likewise what I have yet to
propose in regard to the East Indies and some of our foreign
possessions, I cannot suppose, that our regiments of cavalry ought
to consist of less than 1 colonel, 1 lieut.-colonel, 2 majors, 8
captains, 8 lieutenants, 8 cornets, 24 sergeants, 32 corporals, 16
trumpeters, 560 privates. And to insure our having really effective
corps of infantry, they ought to have 1 colonel, 1 lieut.-colonel, 2
majors, 10 captains, 10 lieutenants, 10 ensigns, 30 sergeants, 40
corporals, 20 buglers, 760 privates. Both cavalry and infantry should,
of course, have the usual number of regimental staff officers and
sergeants, including a school-master, sergeant, and a trumpet and
bugle major.
The establishments of corps of engineers, artillery, and of marines,
should also be finally decided upon; as likewise that of a permanent
staff, which I intend to propose for the army.
I am aware that objections have been made to the plan of a military
fund, yet I have never heard a good reason assigned by those who
made them against it. To such as ask if it would not render officers
too independent, I would not even deign to give an answer. I see,
therefore, no cause why I should not venture strongly to urge that a
military fund be established under the sanction and approval of
Government; and to promote so desirable an object, the country, as
it would thus soon be freed from the great expense of half-pay to the
officers of the army, ought, in common justice, to contribute a certain
sum annually, and especially at first, towards it; for it should be borne
in mind, that, comparatively speaking, very few pensions would be
hereafter required for soldiers, and, I may say, none whatever for
officers.
All officers, according to their rank, should be obliged to contribute a
certain small sum monthly towards the fund, which could be
regulated in proportion to the assistance afforded by Parliament, and
likewise by what might be expected to arise from such officers as
were desirous of retiring from the army being required to pay a fixed
but moderate sum, according to the rank they may hold at the time,
into the fund; but I expect that the whole amount in any manner
contributed, or which will accumulate at interest in the public fund,
would produce annually sufficient to enable those who may be
intrusted with its management, to allow retired officers, after a certain
number of years service, considerably more than is at present
granted in the shape of half-pay.
At present, officers sometimes receive fixed sums, according to their
rank, for going upon half-pay; but I propose to reverse this as to
retirements; and my reason for so doing is to quicken promotion; for I
wish to make it the interest of every officer under the individual
desirous of retiring (who ought to be allowed to retain his rank) to
make up the sum amongst them, which he would have to pay into
the fund, in order that he might be entitled to a retirement, and
something besides to go into his own pocket, and which he should
be permitted to take openly; for a step would, by this means, be
gained by all those under him in the corps; and this would greatly
remove the apprehension of promotion becoming too slow, and
officers would no longer be exposed to the present galling and
disheartening system of purchase. A considerable sum might thus
be produced annually for the fund, out of which, as I calculate, even
general officers should receive retirements at the same rate as lieut.-
colonels.
Something of this kind is, I find, adopted by officers in the service of
the East India Company, who contribute so much monthly towards a
purse given to retiring officers, by which their promotion is found to
be quickened.
If wounds, or ill health, acquired in the service, should compel an
officer to retire from his regiment, or should he have served for
fourteen years, he ought, without any payment to the fund, to be
allowed the full retirement to which he would be entitled according to
his rank, whether those below him were willing to contribute for him
to the fund or not; but should these officers have done so, in order to
induce him to retire, and an attempt be made to conceal the
transaction, the retired officer, if it was afterwards found out that
deceptions had been practised, ought, by an unalterable regulation,
to be deprived of his retirement.
The senior Cornet or Ensign, Lieutenant, Captain or Major, as the
case might be, would find it their interest to subscribe a much larger
sum than the other officers, for him who was to retire, as he would
thus acquire a higher rank in the corps and also an increase of pay.
With respect to pay-masters and surgeons, as a plan has already
been adopted by Government for their retirements, after a certain
number of years service, it would be unwise to interfere with such an
arrangement, but they should, nevertheless, be permitted to
subscribe to the military fund, although they could not, like the other
officers, be expected to pay towards it on retiring; and unless their
monthly payments to the fund were increased, which would not
probably be desirable, they must be satisfied with smaller
retirements from it; but all such points should come under the
consideration of a board of management, as well as the amount of
retirements for regimental quarter-masters and assistant-surgeons,
but officers ought not to be allowed any retirements whatever until
after seven years service; and till they have completed their fourteen
years, (or twenty years when there should be another increase) it
ought to be only on a very moderate scale. It might also be a point
requiring consideration-but it strikes me, that for obvious reasons, a
general Court Martial by its sentence ought to have the power of
depriving an officer of any retirement he might have become entitled
to.
Some of our best commanders of regiments had objections to
married officers remaining in the corps, and often did their best, but
without injuring them, to have them removed; for they always found,
that at the very time when their thoughts ought to have been entirely
given to their profession, they were quite distracted from it, by the
care of the world, and anxiety about their families; now the fund I
propose to establish, would enable those who had become so
situated, or such captains as might be apprehensive that they could
not pass the examinations required before they could get the rank of
major, to retire, without being obliged to do so, to the quiet of
domestic life. I must beg also to observe, that it has long been a
common saying as to young men, that the most talented of a genteel
family ought to go to the bar, the next into the church, and that any
dunce would answer well enough for the army or navy; but if the
examinations I have suggested are strictly inforced, this reproach will
be removed, and taking into account what I am so anxious to
establish for the benefit of officers, not only as regards a military
fund, but also with respect to promotion, the army would be rendered
a much more desirable and suitable profession for young men of
talent than it is at present, and would make it well worth their while to
exert themselves to get into it.
There ought not to be any difficulties started as to the appointment of
a board of management of the military fund, and as it is to be
presumed that no member of Her Majesty's Government could have
a wish to interfere, or to have any control over the board; I have now
to propose (and I think this will satisfy all parties) that the
Commander-in-Chief should have the nomination of the president
and board, which should consist of at least two, if not of four efficient
members, removable only by the authority which had appointed
them to it, and which should also have the power of choosing as
secretary, a gentleman of habits of business, who would require the
assistance of a certain number of clerks. An annual report of the
state of the military fund should be made out and submitted for the
information of Government, the Commander-in-Chief, and that of
every corps in the army.
The officers of the board and secretary for performing what cannot
be otherwise than troublesome duties, all the details of which they
would have to regulate, and as they must have considerable
responsibility attached to them, probably requiring security to be
given, I conclude they would be allowed respectable fixed salaries.
The clerks will also be of course well paid. I may be sanguine, but I
confess I feel very confident, that the plan would be found, under the
management of an able board, to work well. I have been more
minute than I could have wished, but my object in being so, was to
obviate many of the objections which are likely to be started. I regret
much, however, that I cannot now see how to include the officers of
the navy in it; for, unless it were so arranged, that they could
contribute towards the fund, as retiring officers of the army are made
to do, I fear that so desirable an object cannot, as they are now
situated, be effected for them.
By establishing this military fund, Government would not only be able
to do away with half-pay, but also to discontinue the practice of
granting pensions, excepting in particular cases to officers of the
army, their widows and children, as I conclude that they would all in
future be provided for under the regulations to be made by the board
of management; and what a relief to the minds of officers, and what
a proud and proper feeling it would be for them to indulge in, that
they could at such a trifling sacrifice, and on such easy terms,
provide for themselves; and for those about whom they must
naturally be so anxious, without becoming a burden to the country;
and would not this plan give them a stake in it, which must
perpetuate (though it cannot for a moment be supposed, that in such
feelings and principles they can be wanting,) that attachment to their
Sovereign, and to our free and admirable constitution, which they
have ever so strongly evinced; and thus an additional and powerful
barrier would be formed against the dangerous designs of men, who
apparently wish to see our excellent institutions destroyed, and the
country thrown, to suit their own selfish purposes, into such
confusion, as could only end in a despotism of some kind or other.
I am not blind to the circumstance, that if what I am endeavouring to
establish for the good of the service is accomplished, a severe blow
must be given to the patronage of the army, but I trust that this will
not be allowed to become a stumbling-block in the way of so much
general benefit. I, however, willingly leave the cause of our gallant
army, with which I am now, I may say, almost unconnected, to public
opinion, which fortunately in this country is so powerful, as not to be
easily or long withstood; and we may, I will venture to say, be certain,
that if what I have presumed to propose, is practicable and desirable,
the Commander-in-Chief will readily meet the wishes of the country
and the army, with all that good will and zeal which he has on so
many occasions evinced for the welfare of both.
 CHAP. III.
What I have next to propose, will I think be allowed to be of
importance; for I wish to free our army from much inconvenience,
and at the same time to insure its efficiency. I have therefore to
recommend, that the East India Company should have the power of
raising, as usual by bounty, in the United Kingdom, such a number of
regiments as they may require for their service; to be commanded by
their own officers, in the same manner as has hitherto been the
custom in their European corps; so as to enable them to maintain
their ascendancy in the East, without the aid of Her Majesty's troops,
except in cases of great emergency; for I am most anxious that any
of our regular regiments sent there, as I have before observed,
should be immediately ordered home, as soon as the cause for
which they may have been sent out had been removed.
I am convinced that the Honourable Company's native armies would
be greatly improved, and rendered fully competent to contend with
any troops in the world, if several corps of Malays were formed for
their service, and officered in the manner now practised in Ceylon,
and when in the field made to act along with the Sepoys; and for
very unhealthy parts of India, where the heat is almost unbearable,
some corps of those always effective, and light-hearted beings—
Caffres, would be found most admirably calculated for service, either
in garrison or in the field. I am however aware that prejudices exist
against both Malays and Caffres, but they should be got over.
From what I have seen of Malays, I believe them to be the bravest
people of the East. The only resistance, worth talking of, which our
troops met with in taking Ceylon from the Dutch, was from a battalion
of Malays in their service; and I am convinced, that Sir Stamford
Raffles did not speak too highly in their praise. It was however, a sad
mistake, our having relinquished so much of their country, and I fear
too without their consent, to the tender mercies of the Dutch; for they
were always greatly attached to us, and it is well known that they
make excellent faithful soldiers. They are also very healthy in almost
any situation, and this alone should induce us to prefer them to every
other description of troops, which could be employed in Indian
warfare. Ought we not to look forward, and that too before long, to
the Company's wars increasing in number and importance; for does
not history and experience show us, that conquerors cannot easily
stop in their conquests, and say, this river, or that range of mountains
shall be our future boundary, and we shall go no farther; do we not
almost invariably find, that before they had long endeavoured to halt,
and when they had just began to expect, in rest and peace, to enjoy
the fruits of their victories, that they were either again obliged to go
forward, or else to retrace their steps. These historical facts are
particularly applicable, even at the present moment, and ought to be
considered as timely notice to beware of rendering our already vast
Eastern Empire too extensive, unless we are prepared to support our
high pretensions, by powerful and well organized fleets and armies;
and that our chief object is to disseminate the blessings of pure and
reformed Christianity throughout the East, for the long neglect of
which we have, as a nation, so much to answer for.
I well remember looking upon it as a hopeless business to expect
that the Portuguese could ever be brought to stand before French
troops; and in making this remark, I more particularly allude to the
period when Marshal Soult occupied Oporto. I could then have got,
most advantageously, as many did, into the Portuguese army; but
having, by chance, witnessed what took place on that occasion, and
on some others, nothing could induce me to have any thing to do
with them. I certainly came to a wrong conclusion, and I did not
calculate, as I ought to have done, that British officers can make
almost any men in the world fight; at all events, when they have an
opportunity of seeing how British troops set about their work.
I should greatly fear, that it cannot now be safe to employ—at least
in some of our West India Islands—corps composed of Blacks; I
must therefore beg leave to recommend, that regiments should be
raised by bounty in the United Kingdom, for service in that part of the
world, and in some of our other foreign possessions; and none of our
regular regiments should be required to serve there, but in cases of
emergency; and they ought always to be immediately re-called from
such countries, when the cause for which they were sent out had
been removed. Such an arrangement would obviate many objections
to the plan of the ballot, and would be found the means (so desirable
an object in these times) of keeping our regiments in a very high
state of discipline and efficiency; for they would be then very superior
in these respects to any troops we can now, or even could avail
ourselves of; and if what I suggest be adopted, a vast saving of
expense to the country would be the consequence, which is incurred
in constantly relieving the number of regiments we are obliged to
have always stationed abroad.
In order to shew in the strongest manner, how serious a drawback
such prolonged service in tropical climates is to the British army, I
shall here take the liberty of stating, that in the year 1820, the
regiment to which I then belonged arrived in the East, complete in
officers and men. It lately returned to England, without having lost, I
believe, any individual in action; but the climate alone had produced
great changes in its ranks; and although volunteers from other corps
were added to it, and many recruits had been sent out during the
period of its absence from home, to keep up its strength, yet when it
returned it could scarcely be called a regiment. Some of the officers
had certainly exchanged into other corps at home, or had sold out;
but only one or two reached England of all those who had embarked
with it. This is most injurious to the discipline and efficiency of our
army; for, according to present arrangements, and from unavoidable
circumstances, a corps can only be at home for so short a period,
that there is not sufficient time allowed to bring it into that state in
which it ought to be for service; and when regiments arrive in foreign
stations, they are too often so much detached in small bodies, that
notwithstanding all the zeal and exertions of officers, a certain
degree of relaxation in discipline necessarily takes place, and
generally increases the longer a regiment, always hoping to be re-
called—is kept abroad. This feeling, or anxiety about home, at least
to any considerable extent, could not be supposed to exist in
Colonial corps; for those who voluntarily entered them, would have,
in a great measure, made up their minds to consider such foreign
stations as their homes, at all events, for a certain number of years,
which both officers and men can, in most instances, contrive to pass
both profitably and agreeably.
The officers of Colonial corps should be kept distinct from those of
the regular army, and there ought to be no exchanges permitted from
the one to the other; and it might perhaps be thought advisable, that
Colonial officers should receive a higher rate of pay or allowances,
and they ought to be allowed—as the same system of promotion is
supposed to exist in such corps as in the regulars—to join the latter
in making a provision for their retirement from the service, upon the
plan I have endeavoured to establish. But fixed rates of pensions for
service in the Colonial corps should be established for the non-
commissioned officers and privates, which ought invariably to be in
proportion to good conduct, and to the period spent in those
generally unhealthy climates. In these stations, and in the East
particularly, I have observed that soldiers of regiments of the line,
were very liable to be cast down, in consequence of the expectations
they had formed of the pleasures they were led to look for, not being
by any means realized; and being exposed to temptations which
they could not resist, especially that of drinking, they were more
likely to become slaves to it, and reckless, than in other parts of the
world; it would therefore be a point requiring serious consideration,
how far it might be prudent, when the composition of these Colonial
corps is borne in mind; to dispense entirely with corporal
punishment; it ought not, however, to be permitted to take place, but
when called for by the strongest possible causes, and a special
report of the circumstance, should invariably and immediately be
made, by the officer commanding the corps, for the information of
the Commander-in-Chief.
The establishments of Colonial corps ought to be fixed according to
the service likely to be locally required of them; and where their
officers obtained the rank of generals, they could, of course, be
employed in any manner, or upon any service for which the
Commander-in-chief might think fit to select them; but their
knowledge of these countries would eminently qualify them for
colonial commands, and thus this branch of the service would not
only be rendered highly honourable, but it would also hold out many
advantages to those who entered it. They ought, therefore, to be
obliged to undergo before appointment, and afterwards before they
get the rank of major, the examinations to which the officers of the
regular army must submit.
I must now request attention to what I shall next bring before the
reader—that is to say—as no one would hereafter, according to the
plan proposed, be permitted to enter our regular army, who was not
of a certain height, and of a sound constitution, I must strongly urge,
that the old fashioned fancy of having grenadier and light infantry
companies to regiments should be discontinued; for it takes away
the best, or the picked men from the others, to gratify the vanity of
two of the captains, at the expense of the feelings of the rest, and
which also most seriously affects the general efficiency, and ruins the
appearance of regiments: and how galling and discouraging it is to a
corps, but especially to its commanding officer, to have these
companies placed under the orders of probably a stranger; who may
have sufficient influence or interest with a general commanding an
expedition, so as to be able to induce him to form grenadier, or light
infantry battalions, for a particular service, and which any regiment,
or part of it, ought to be as well able to perform.
A battalion, or any body of troops, which is not perfect in the
exercises and duties of light infantry as well as in the less rapid
movements of the line, should be looked upon as unfit for modern
warfare. All regiments of infantry ought therefore to be like the old
43d and 52d; and I must, at whatever risk, presume to say, that
officers unable to make their corps, if not altogether, at least almost
as efficient as these were when they came from the hands of Sir
John Moore, ought to be considered incapable of commanding them.
I have also no hesitation in adding, that during the late wars, these
corps and the Rifles, far surpassed all others in many respects.
We all know that the celebrated Marshal Saxe, who was looked upon
as a high military authority in olden times, is reported to have said,
that the whole art of war was in the legs. This, to a certain extent, is
true; but he then, of course, only spoke of the trade and not of the
science. I have no doubt but that some of our ancients may be
inclined to think they got on well enough without exerting much
activity in their day; yet I must say, that officers unfit for rapid
movements on foot should be recommended to retire from the
service, as their unfitness in this respect might render it
indispensable that they should not be allowed to remain a burden
upon it. And I would likewise take the liberty of suggesting, that all
regimental officers, according to their rank, should be dressed and
appointed alike; and all the soldiers of the ten companies alike.
If all our regular regiments were made light infantry, which they ought
to be, it might no longer be considered advisable to encumber them
with the large colours now in use. Once upon a time, a commanding
officer of a light corps (not belonging to the famous light division),
expecting next day to be engaged, actually came to the strange
determination of burning those of his regiment; but when acting in
line, I would propose (though some one else might think of
something very superior), that there should be substituted as rallying
points, and to which should be attached the same importance as to
colours, two golden-lions, which might be ornamented by a scroll,
upon which could be emblazoned, or inscribed, the actions in which
the corps may have distinguished itself—these should be screwed
on to light staffs; those for English regiments, being near their heads,
adorned with Roses; those for Scotch, with Thistles; and those for
Irish, with Shamrocks: these standards in the field should be
consigned to the care of the two youngest lieutenants, and they
should be made strictly responsible for them; for I once knew an
ensign, who, in action, actually threw down one of the colours of a
renowned regiment, and made off to the rear, without thinking more
of it, from having been hit rather sharply by a spent ball. These are
likely, I fear, to be thought too trifling matters for a work of this kind;
but I hope the reader will excuse me for having introduced them; and
also for adding, that in order to keep pace with improvements made
by other nations in modern warfare, ought it not to be well
considered whether our slowest movements, in what is termed
ordinary time, would not be improved, if the soldier was required to
take a greater number of steps, say 87, of only 30 inches in length in
the minute; and if what is called quick time was made 126 paces of
only 30 inches each per minute, which would make him pass over
the same extent of ground in the same space of time as he does by
the present plan. At least, I have no doubt, and I speak, as an old
adjutant, and as an officer long practised in the movements of both
small and large bodies of troops, that all manœuvres would be
performed at these paces with much less chance of confusion, and
with more ease to the soldier, especially in action, than according to
the present mode.
It would lead me far beyond my present intentions if I were to enter
extensively upon the subject of military evolutions; but I beg leave to
say, that to simplify and render their execution easy, ought to
become the primary object of all modern tacticians.
In manœuvring, especially large bodies of troops, rapid movements
in columns at quarter distances ought to be much more attended to
than they are.—Masses of such columns, or close columns, as
practised by the Duke of Wellington at Paris or elsewhere, can be
quickly and scientifically placed or prepared for advancing or retiring
in any direction, or for deployment, by simply, when put in motion,
marking time and bringing up the shoulder; and by this means
gradually producing a change of position or of formation of the whole
mass. Deployments can be made from such columns in quick or
double-quick time, and with the greatest accuracy, by merely moving
in threes or fours to the right or left. What an advantage an army
thus instructed would have over one proceeding in the old heavy
manner, in seizing hold of a position, or of a point, presenting evident
advantages, and that too with perfect safety; for, in case of a sodden
attack of cavalry, a quarter-distance column is in security in square in
an instant. This column also possesses many advantages over the
close column, not only in the superiority and rapidity of its
movements, but likewise in its being much less liable to get into
disorder in broken ground, or to suffer from cannon, which very
soon, if well served, destroy a perfectly solid mass, especially if
steady battalions of infantry are also firing into it, as was the case at
Talavera, when our Guards in the afternoon made a gallant but
injudiciously-directed charge; and when the 48th regiment, on the
one hand, and the 45th on the other, taught the French, that
breaking through an enemy's line in dense columns would not
answer with a British army.—Echelons of these quarter-distance
columns would, in many instances, be very superior to lines of
battalions or brigades, as they could be moved with rapidity to the
points of formation in a new line or position, and without any risk of
getting into confusion; commanding officers of corps, their majors
and adjutants having only carefully to attend to, judge, and preserve
their respective distances; and even in common drill or manœuvres
of a single battalion, this ought always to form an important part of
the practice and instruction of these officers, who in regimental
tactics are, in general, not sufficiently occupied, and consequently
are too often found ignorant of their business when obliged to act in
brigade, and with this object in view every movement should be
performed as if in reference to a corps supposed to be upon either or
both flanks, with which they ought to work in unison. Now I must beg
the unmilitary reader to imagine a large body of troops thus
manœuvring in columns at quarter-distances, or in open columns, or
lines formed from them, covered by clouds of sharpshooters,
supported by these columns or lines, cannon and cavalry, and he will
have at once before him a chief feature in modern warfare, in which
science and experience on the part of generals and staff officers
must be so essential and indispensable.
In thus endeavouring to bring certain matters under consideration,
and in doing so I fear I may exhaust the patience of the reader, I
hope I may not give offence to some of those interested in their
remaining as they are at present; but I must proceed in the task I
have assigned myself, and observe, that I look upon it to be a point
of importance that the present mode of furnishing clothing and
accoutrements for regiments should be altered, and that upon a
general being appointed colonel of a regiment, he should receive a
fixed income as such; but all clothing and accoutrements of every
description, ought, under proper regulations, to be supplied through
the regimental agents, upon the responsibility of the colonels, but it
should be so arranged that neither could have any interest in the
articles being procured at a cheap rate. The granting, however, a
fixed income to colonels need be no additional expense to the
country; for what are the off-reckonings which go to colonels of
regiments but an over-payment on the part of Government for
clothing, &c. &c. Some colonels are very liberal to their corps, but
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