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Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-386 July 2005 International and Operational Law Foreword Lieutenant Colonel Paul E. Kantwill Stick to the High Ground Colonel Richard B. Jackson “Improving the Fighting Position” A Practitioners Guide to Operational Law Support to the Interrogation Process Lieutenant Colonel Paul E. Kantwill, Captain Jon D. Holdaway, & Geoffrey S. Corn “Snipers in the Minaret―What is the Rule?” The Law of War and the Protection of Cultural Property: A Complex Equation Geoffrey S. Corn Bringing International Agreements Out of the Shadows: Confronting the Challenges of a Changing Force Geoffrey S. Corn & Colonel James A. Schoettler, Jr. Book Review CLE News Current Materials of Interest Editor, Captain Anita J. Fitch Assistant Editor, Captain Colette E. Kitchel Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly submitted via electronic mail to [email protected] or on 3 1/2” by The Judge Advocate General’s Legal Center and School, Charlottesville, diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s Virginia, for the official use of Army lawyers in the performance of their Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS- legal responsibilities. Individual paid subscriptions to The Army Lawyer are ADA-P, Charlottesville, Virginia 22903-1781. Articles should follow The available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Bluebook, A Uniform System of Citation (17th ed. 2000) and Military Charlottesville, Virginia, and additional mailing offices (see subscription form Citation (TJAGLCS, 9th ed. 2004). Manuscripts will be returned on on the inside back cover). POSTMASTER: Send any address changes to The specific request. No compensation can be paid for articles. Judge Advocate General’s Legal Center and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions The Army Lawyer articles are indexed in the Index to Legal Periodicals, expressed by the authors in the articles do not necessarily reflect the view of the Current Law Index, the Legal Resources Index, and the Index to U.S. The Judge Advocate General or the Department of the Army. Masculine or Government Periodicals. The Army Lawyer is also available in the Judge feminine pronouns appearing in this pamphlet refer to both genders unless the Advocate General’s Corps electronic reference library and can be accessed context indicates another use. on the World Wide Web by registered users at http://www.jagcnet.army.mil/ArmyLawyer. The Editor and Assistant Editor thank the Adjunct Editors for their invaluable assistance. The Board of Adjunct Editors consists of highly Address changes for official channels distribution: Provide changes to qualified Reserve officers selected for their demonstrated academic the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center excellence and legal research and writing skills. Prospective candidates and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, may send Microsoft Word versions of their resumes, detailing relevant Virginia 22903-1781, telephone 1-800-552-3978, ext. 396 or electronic experience, to the Technical Editor at [email protected] mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian Issues may be cited as ARMY LAW., [date], at [page number]. authors on topics of interest to military lawyers. Articles should be Articles Foreword Lieutenant Colonel Paul E. Kantwill.......................................................................................................................1 Stick to the High Ground Colonel Richard B. Jackson ....................................................................................................................................2 “Improving the Fighting Position” A Practitioners Guide to Operational Law Support to the Interrogation Process Lieutenant Colonel Paul E. Kantwill, Captain Jon D. Holdaway, & Geoffrey S. Corn ........................................12 “Snipers in the Minaret―What is the Rule?” The Law of War and the Protection of Cultural Property: A Complex Equation Geoffrey S. Corn.....................................................................................................................................................28 Bringing International Agreements Out of the Shadows: Confronting the Challenges of a Changing Force Geoffrey S. Corn & Colonel James A. Schoettler, Jr. ............................................................................................41 Book Review The Darkest Jungle: The True Story of the Darién Expedition and America’s Ill-Fated Race to Connect the Seas Reviewed by Major Susan E. Watkins ............................................................................................................52 CLE News.....................................................................................................................................................................58 Current Materials of Interest .....................................................................................................................................64 Individual Paid Subscriptions to The Army Lawyer.......................................................................Inside Back Cover JULY 2005 THE ARMY LAWYER • DA PAM 27-50-386 Foreword Lieutenant Colonel Paul Kantwill Chair and Professor International and Operational Law Department The Judge Advocate General’s Legal Center and School Welcome to the first-ever edition of The Army Lawyer devoted entirely to international and operational law topics. It is an exciting time to be a student of these burgeoning legal disciplines as, arguably, there has never been such a fast-moving period in international law. While Coalition forces continue to wage pitched battle in Afghanistan and Iraq, Judge Advocates are deployed in unprecedented numbers and with unparalleled frequency. Those serving far forward are not surprisingly, performing magnificently as they handle incredibly complex international legal challenges. What is surprising, however, is the topics they master and issues they handle. Long considered a “niche” practice unique to but a few Judge Advocates, this subject matter has become a core competency of all military attorneys and even part of the American lexicon. The mass media, talk show hosts, and ordinary citizens debate some of the very issues with which our uniformed judge advocates wrestle daily: the status of combatants and non-combatants, civilian protections, detainee operations, and intelligence interrogations, to name a few. The Geneva Conventions are the subject of cocktail party banter and the long-used military acronym “GTMO” is probably one of the most frequently “Googled” terms in the world. With that recognition, let us embark on our journey. Following are pieces on a wide variety of different, yet inexorably linked topics. They originate in The Judge Advocate General’s Legal Center and School, the Pentagon, and in the field. Whatever their source, they are intended to meet the true spirit of The Army Lawyer—to aid the practitioner. The edition has a great and provocative beginning with Colonel Dick Jackson’s essay on the importance of maintaining the moral high ground through steadfast adherence to the Law of War. Subsequent pieces include a primer on intelligence interrogations, a thorough examination of the Law of War as it relates to Cultural Property, and a prospective look at the effects of transformation on International Agreements. We hope that the contents of this Army Lawyer will succeed in its ultimate mission—to inform and assist the practitioner in the field. We hope also that a venture such as this will inspire those who do the “heavy lifting” in these important areas to share their thoughts and experiences with the rest of us. JULY 2005 THE ARMY LAWYER • DA PAM 27-50-386 1 Stick to the High Ground Colonel Richard B. Jackson Legal Advisor, Allied Joint Force Command Naples, Italy No matter how hard we try to take our world with us, we will still find that we sometimes must fight the enemy on his ground, by his rules. This is the hardest form of combat for the United States, because our own rules cripple us and, at worst, kill us.1 Asymmetric warfare has had a profound impact on the law of war.2 The terrorist attacks of 9/11 and terrorist techniques employed since have flouted the law of war and directed indiscriminate attacks against those the law and professional Soldiers are sworn to protect―the innocents or those who are hors de combat.3 Recent peacekeeping and peace enforcement actions in the Balkans, as well as recent combat in the Global War on Terror (GWOT) from Afghanistan to Iraq, have provided examples of morally and legally asymmetric methods employed by terrorists, paramilitary groups, and even military personnel. In a somewhat disturbing trend, Western militaries and their civilian leaders have occasionally replied in kind, adopting an approach that employs legal techniques to meet the terrorist on his own moral base level, deeming the law of war inapplicable to counter-terrorist operations and declaring “unlawful combatants” unfit for prisoner of war (POW) treatment. Several prominent authors, like Ralph Peters, have suggested that the “warrior class” that Soldiers face in the asymmetric warfare of the future must be met with new moral standards, with a fresh new look at
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