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Headquarters, Department of the Army Department of the Army Pamphlet 27-50-445 June 2010 INTERNATIONAL AND OPERATIONAL LAW EDITION Foreword Lieutenant Colonel Jeff A. Bovarnick Articles Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy Lieutenant Colonel Jeff A. Bovarnick Teaching a Law of War Seminar Class Major J. Jeremy Marsh, USAF Human Rights: Time for Greater Judge Advocate Understanding Captain Brian J. Bill, USN Doctrine Developments on Stability Operations and the Rule of Law Lieutenant Colonel J. Porter Harlow, USMC Two Hats Are Better Than One: The Dual-Status Commander in Domestic Operations Colonel John T. Gereski & Lieutenant Colonel Christopher R. Brown How White Phosphorous Use Is “Incendiary” for Counterinsurgency Operations Major Shane R. Reeves The Law and Policy Implications of “Baited Ambushes” Utilizing Enemy Dead and Wounded Lieutenant Colonel Chris Jenks Reporting and Investigation of Possible, Suspected, or Alleged Violations of the Law of War Dick Jackson The Capture Versus Kill Debate: Is the Principle of Humanity Now Part of the Targeting Analysis When Attacking Civilians Who Are Directly Participating in Hostilities? Major Richard S. Taylor Conflict Classification and Detainee Treatment in the War Against al Qaeda Ensign Scott L. Glabe, USNR CLE News Current Materials of Interest Editor, Captain Ronald T. P. Alcala Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected]. Articles should follow Virginia, for the official use of Army lawyers in the performance of their The Bluebook, A Uniform System of Citation (19th ed. 2010) and the legal responsibilities. Individual paid subscriptions to The Army Lawyer are Military Citation Guide (TJAGLCS, 14th ed. 2009). No compensation can available for $45.00 each ($63.00 foreign) per year, periodical postage paid at be paid for articles. Charlottesville, Virginia, and additional mailing offices (see subscription form on the inside back cover). POSTMASTER: Send any address changes to The The Army Lawyer articles are indexed in the Index to Legal Periodicals, Judge Advocate General’s Legal Center and School, 600 Massie Road, the Current Law Index, the Legal Resources Index, and the Index to U.S. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions Government Periodicals. The Army Lawyer is also available in the Judge expressed by the authors in the articles do not necessarily reflect the view of Advocate General’s Corps electronic reference library and can be accessed The Judge Advocate General or the Department of the Army. Masculine or on the World Wide Web by registered users at feminine pronouns appearing in this pamphlet refer to both genders unless the http://www.jagcnet.army.mil/ArmyLawyer. context indicates another use. Address changes for official channels distribution: Provide changes to The Editor and Assistant Editor thank the Adjunct Editors for their the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center invaluable assistance. The Board of Adjunct Editors consists of highly and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, qualified Reserve officers selected for their demonstrated academic Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension excellence and legal research and writing skills. Prospective candidates 3396) or electronic mail to [email protected]. may send Microsoft Word versions of their resumes, detailing relevant experience, to the Technical Editor at TJAGLCS-Tech- Articles may be cited as: ARMY LAW., [date], at [first page of article], [email protected]. [pincite]. The Editorial Board of The Army Lawyer includes the Chair, Administrative and Civil Law Department; and the Director, Professional Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of INTERNATIONAL AND OPERATIONAL LAW EDITION Foreword Lieutenant Colonel Jeff A. Bovarnick ............................................................................................................................................. 1 New Developments International and Operational Law .......................................................................................................................................... 4 Criminal Law .............................................................................................................................................................................. 4 Lore of the Corps Indians as War Criminals? The Trial of Modoc Warriors by Military Commission Fred L. Borch III ........................................................................................................................................................................................ 7 Articles Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy Lieutenant Colonel Jeff A. Bovarnick .......................................................................................................................................... 9 Teaching a Law of War Seminar Class Major J. Jeremy Marsh, USAF .................................................................................................................................................. 50 Human Rights: Time for Greater Judge Advocate Understanding Captain Brian J. Bill, USN ....................................................................................................................................................... 54 Doctrine Developments on Stability Operations and the Rule of Law Lieutenant Colonel J. Porter Harlow, USMC .............................................................................................................................. 65 Two Hats Are Better Than One: The Dual-Status Commander in Domestic Operations Colonel John T. Gereski & Lieutenant Colonel Christopher R. Brown .......................................................................................... 72 How White Phosphorous Use Is “Incendiary” for Counterinsurgency Operations Major Shane R. Reeves ............................................................................................................................................................. 84 The Law and Policy Implications of “Baited Ambushes” Utilizing Enemy Dead and Wounded Lieutenant Colonel Chris Jenks ................................................................................................................................................. 91 Reporting and Investigation of Possible, Suspected, or Alleged Violations of the Law of War Dick Jackson ........................................................................................................................................................................... 95 The Capture Versus Kill Debate: Is the Principle of Humanity Now Part of the Targeting Analysis When Attacking Civilians Who Are Directly Participating in Hostilities? Major Richard S. Taylor .......................................................................................................................................................... 103 Conflict Classification and Detainee Treatment in the War Against al Qaeda Ensign Scott L. Glabe, USNR ................................................................................................................................................... 112 CLE News .................................................................................................................................................................. 117 Current Materials of Interest ...................................................................................................................................... 129 Individual Paid Subscriptions to The Army Lawyer ................................................................................ Inside Back Cover JUNE 2010 • THE ARMY LAWYER • DA PAM 27-50-445 Foreword Lieutenant Colonel Jeff A. Bovarnick Professor and Chair International and Operational Law Department* The Judge Advocate General’s Legal Center and School Charlottesville, Virginia Welcome to the third International and Operational Law edition of The Army Lawyer!1 The proposition that all judge advocates (JA) and paralegals need a solid foundation in International and Operational Law is an understatement. As of this writing, there are over 600 legal personnel deployed to combat zones2 and countless others stationed around the world, including Haiti.3 There is no indication that the number of deployed JAs will decrease any time soon. Although the U.S. mission in Iraq will expire at the end of 2011,4 the number of JAs deploying to Afghanistan is increasing. As the armed conflict against transnational terrorists continues with no end in sight, conventional forces may find themselves venturing beyond the borders of Afghanistan. The recent devastating earthquake in Haiti demonstrated that members of the Judge Advocate General’s Corps (JAG Corps) must be ready on a moment’s notice to successfully advise commanders on the full spectrum of legal issues in the international and operational law disciplines. The law of armed conflict
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