• Abstract and Figures
• Public Full-text

RULE OF LAW HANDBOOK A Practitioner's Guide for Judge Advocates THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY CENTER FOR LAW AND MILITARY OPERATIONS 2010 RULE OF LAW HANDBOOK A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 2010 The Judge Advocate General’s Legal Center and School, U.S. Army Center for Law and Military Operations Charlottesville, Virginia 22903 [email protected] [email protected] The 2010 Rule of Law Handbook is dedicated to all those who promote the rule of law in the most difficult of circumstances, especially the members of the U.S. Armed Forces as well as our interagency and coalition partners. RULE OF LAW HANDBOOK A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 2010 Although the Center for Law and Military Operations publishes the Rule of Law Handbook, it is the product of contributions by dozens of authors from a multitude of agencies, U.S., foreign, and non-governmental— military and civilian—over the course of several years. Before CLAMO took over sole publication in 2008, the Handbook was a joint publication of CLAMO and the Office of the Joint Judge Advocate at Joint Forces Command. But even that shared publication arrangement inadequately represents the breadth of contributions from other agencies. It would be difficult to list all who have contributed to the development of this, the fourth edition of the Handbook. Official clearance processes required by some agencies required to ascribe individual authorship credit makes doing so even less practical. The current editors are indebted to both our past and current contributors and look forward to working closely with them in the future. Cover design by Dr. iur. Katharina Ziolkowski, LL.M. (UNSW) Cover photograph provided by Capt Robert Boudreau, U.S.M.C. The contents of this publication are not to be construed as official positions, policies, or decisions of the United States Government or any department or agency thereof. Rule of Law Handbook - 2010 PREFACE America’s commitment to the rule of law is fundamental to our efforts to build an international order that is capable of confronting the emerging challenges of the 21st century.1 This volume is the fourth edition of the Rule of Law Handbook published by the Center for Law and Military Operations (CLAMO) at The Judge Advocate General’s Legal Center and School (TJAGLCS). Much has changed since the publication of the first volume in July of 2007. At that time, “surge” operations in Iraq had just begun and the eventual outcome of that tremendous commitment of resources was far from certain. The fight in Afghanistan, while no less important, drew relatively little in the way of public attention. In the three years since, violence in Iraq has dropped precipitously, allowing the Iraqi people to assert their rightful sovereignty in very real and dynamic ways. American forces have withdrawn from Iraqi cities, will end their combat mission in August of 2010, and completely exit Iraq by the end of 2011.2 Afghanistan is now at the forefront of public attention as it experiences its own surge of resources designed to move it down a similar path to success before U.S. combat forces possibly begin reducing their presence in July of 2011.3 Throughout these changes in circumstances, Judge Advocates and their joint, interagency, and multinational partners have quietly gone about advancing the rule of law (RoL) in these locations and others. However, as our military commitments in Iraq and Afghanistan wane or will soon wane, it is fair to ask if there is still a need for Judge Advocates to concern themselves with the rule of law mission. To answer anything other than “Yes!” would be shortsighted4 and unrealistic given our history and hope for the future. Chapter 1 of the present handbook presents some of that history. It describes how Judge Advocates have been involved in rule of law efforts for over a century. It also makes clear how fertile the post-conflict ground is for cultivating the rule of law. When security is no longer the most pressing need, rule of law efforts can truly flourish.5 We are well past the conflict stage in Kosovo, yet Judge Advocates are still there participating in rule of law missions in welcome partnership with civilian practitioners.6 It is no doubt the sincere hope of all rule of law practitioners that the environments in Iraq and Afghanistan one day will similarly be so benign as to make ongoing rule of law efforts there “un-newsworthy.” While rule of law efforts may become more or less newsworthy depending on the circumstances, they will always be important. One of the fourteen references to “rule of law” in the current National Security Strategy holds rule of law as one of the “essential sources of our strength and influence in the world.”7 To 1 The White House, National Security Strategy, 37 (May 2010), available at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (last visited July 27, 2010). 2 Id. at 25. 3 Id. at 21. 4 See, e.g. Center for Law and Military Operations, Brigade Judge Advocate Symposium Report, at 5 (May 2010) (“RoL is one area where JAs [Judge Advocates] have the opportunity to act as a force multiplier, instead of simply fulfilling their traditional advisory role.”), available at https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge Online authentication required). 5 Id. (“When a security situation is poor, trying to advance a sweeping RoL plan may be too optimistic. RoL needs an improved security situation with stability to be able to proceed. It is difficult to find judges and prosecutors willing to risk their lives in places where violence and death threats are common.“). 6 Task Force Falcon, 40th Infantry Division, California National Guard, Office of the Command Judge Advocate, After Action Report, Kosovo Forces 11, Deployed February 2009 – November 2009, at 6 (9 January 2010) (“Trainers actively discouraged participation in RoL activities for fear the unit might step on the toes of EULEX [European Union Rule of Law Mission in Kosovo]. When TFF [Task Force Falcon] attorneys began working in this area, the EULEX and UN lawyers welcomed the help and wondered aloud why TFF attorneys had not come aboard in this area earlier.”), available at https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge Online authentication required). 7 The White House, supra note 1, at 2. i Preface Rule of Law Handbook - 2010 maintain that strength and influence, rule of law will undoubtedly remain part of Judge Advocate practice into the future. The 2010 Edition This edition of the Handbook is not a complete re-write of the 2009 version. It does contain, however, updates and improvements throughout. Many members of the interagency team have devoted time and effort to ensuring the sections describing their agencies and spheres of influence are current. We here at CLAMO are deeply in their debt. Some chapters, by their nature, require updating every year. Funding sources and authorities change from year to year, and sometimes even more often! Any chapter on funding rule of law operations necessarily must also change. Chapter 7 presents the authorities in place as of this writing. As one Fiscal Law instructor here at The Judge Advocate General’s School has remarked, “It is all theoretical until you figure out how to pay for it.” Chapter 5 on Sharia law and combined legal systems also appears in a substantially reorganized and revised form. It provides a broad introduction to the subject. Space constraints in a handbook of this size preclude covering this rich subject in great detail, but the chapter’s footnote references will prove exceptionally valuable for practitioners desiring to do further reading. This edition is not devoid of entirely new material, though. There are completely new sections in addition to the history chapter already mentioned. For example, practitioners have long struggled with how to objectively and effectively measure progress (or the lack thereof) in rule of law operations. Chapter 9 on rule of law metrics may help inform this process. Chapter 10 is also new and describes how practitioners could use Human Terrain Teams to help design rule of law projects. As always, the handbook presents the recent experiences of those actively involved in the rule of law mission. This year the offerings are as diverse as the rule of law mission itself. One article provides a British perspective on supporting the informal justice sector in Helmand Province, Afghanistan. In another, an Air Force practitioner provides her perspective on the Central Criminal Court of Iraq. A Department of Justice attorney also describes the success of the Counter-Narcotics Justice Task Force in Afghanistan. One U.S. Army Judge Advocate shares her division’s efforts to bridge the gap between the Kurdish and Arab judicial systems in northern Iraq. Another depicts brigade-level efforts in eastern Afghanistan, while still another recounts division-level efforts in Baghdad, Iraq. Outside of conventional forces, an Asymmetric Warfare Group Judge Advocate details his role in a rule of law effort developed in coordination with the Department of State’s International Narcotics & Law Enforcement, Afghanistan’s National Directorate of Security, and Afghanistan’s Office of the Attorney General. Finally, a Judge Advocate advising a Special Forces battalion portrays his experiences with the rule of law mission in a fluid environment. The Nature of a Handbook for Judge Advocates The Handbook is not intended to serve as U.S. policy or military doctrine for rule of law operations. Nor is the Handbook intended to offer guidance or advice to other military professionals involved in the rule of law mission.

Load more

  332

Copy Link