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Military Law Review Military Law Review Volume 227 Issue 4 2019 CONTENTS Articles Human Rights Convergence and Future Detention Operations in the Indo-Pacific Colonel Ryan B. Dowdy 321 Other Security Forces Too: Traditional Combatant Commander Activities Between U.S. Special Operations Forces and Foreign Non- Military Forces Major Jason A. Quinn 336 Paying for Their Deaths: How the “Widow Tax” Targets and Penalizes Surviving Spouses of Fallen Soldiers and Retirees Major Jenna C. Ferrell 381 The First Thomas J. Romig Lecture in Principled Legal Practice Mr. Alberto Mora 433 i Headquarters, Department of the Army, Washington, D.C. Academic Journal No. 27-100-227-4, 2019 Military Law Review Volume 227 Issue 4 Board of Editors Colonel Jerrett W. Dunlap Dean, The Judge Advocate General’s School Lieutenant Colonel Keirsten H. Kennedy Chair, Administrative and Civil Law Department Lieutenant Colonel Jess B. Roberts Vice Chair, Administrative and Civil Law Department Major Courtney M. Cohen Director, Professional Communications Program Captain Pearl K. Sandys Editor-in-Chief, Military Law Review Captain Nicole Ulrich Editor-in-Chief, The Army Lawyer Mr. Sean Lyons Legal Editor Since its inception in 1958 at The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia, the Military Law Review has encouraged a full and frank discussion of legislative, administrative, and judicial principles through a scholarly examination of the law and emerging legal precepts. In support of that mission, the Military Law Review publishes scholarly articles that are relevant to, and materially advance, the practice of law within the military. ii The Military Law Review does not promulgate official policy. An article’s content is the sole responsibility of that article’s author, and the opinions and conclusions that are reflected in an article are those of the author and do not necessarily reflect the views of the U.S. government, the Department of Defense, the Department of the Army, The Judge Advocate General’s Corps, The Judge Advocate General’s Legal Center and School, or any other governmental or non-governmental agency. WEBSITE: The Military Law Review is available at https://tjaglcspublic.army.mil/mlr. COPYRIGHT: Unless noted in an article’s title, all articles are works of the United States Government in which no copyright subsists. When copyright is indicated in the title, please contact the Military Law Review at [email protected] for copyright clearance. SUBSCRIPTIONS: Interested parties may purchase private subscriptions from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at (202) 512-1800. An annual subscription is $20 for a domestic subscriber or $28 for an international subscriber. For Army legal offices, including within the Army National Guard and the U.S. Army Reserve, and other federal agencies, inquiries and address- change requests should be communicated to the Military Law Review. Other military services may request distribution through official publication channels. This periodical’s postage is paid at Charlottesville, Virginia, and additional mailing offices. Reprints of published works are not available. POSTMASTER: Send address-change requests to Military Law Review, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. CITATION: This issue of the Military Law Review may be cited as 227 MIL. L. REV. page number (2019). SUBMISSION OF WORKS: The Military Law Review accepts submissions of works from military and civilian authors. Any work that is submitted for publication will be evaluated by the Military Law Review’s Board of Editors. In determining whether to publish a work, the iii Board considers the work in light of the Military Law Review’s mission and evaluates the work’s argument, research, and style. No minimum or maximum length requirement exists. Footnotes should be numbered consecutively from the beginning to the end of the writing, not section by section. Citations must conform to The Bluebook: A Uniform System of Citation (20th ed. 2015) and to the Military Citation Guide (TJAGLCS 22nd ed. 2018). A submitted work should include biographical data concerning the author or authors. This information should consist of branch of service, duty title, present and prior positions or duty assignments, all degrees (with names of granting schools and years received), and previouspublications. If submitting a lecture or a paper prepared in partial fulfillment of degree requirements, the author should include the date and place of delivery of the lecture or the date and source of the degree. All submissions must be in Microsoft Word format and should be sent to the Editor, Military Law Review, at usarmy.pentagon.hqda- tjaglcs.list.tjaglcs­ [email protected]. If electronic mail is not available, please forward the submission, double-spaced, to the Military Law Review, Administrative and Civil Law Department, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, Charlottesville, Virginia 22903-1781. iv INDIVIDUAL PAID SUBSCRIPTIONS TO THE MILITARY LAW REVIEW The Government Printing Office offers a paid subscription service to the Military Law Review. To receive an annual individual paid subscription (4 issues), complete and return the order form on the next page. RENEWALS OF PAID SUBSCRIPTIONS: You can determine when your subscription will expire by looking at your mailing label. Check the number that follows “ISSDUE” on the top line of the mailing label as shown in this example: When this digit is 7, you will be sent a renewal notice. MILR SMITH212J ISSDUE007 R1 JOHN SMITH 212 BROADWAY STREET SAN DIEGO, CA 92101 The numbers following ISSDUE indicate how many issues remain in the subscription. For example, ISSDUE001 indicates a subscriber will receive one more issue. When the number reads ISSDUE000, you have received your last issue and you must renew. To avoid a lapse in your subscription, promptly return the renewal notice with payment to the Superintendent of Documents. If your subscription service is discontinued, simply send your mailing label from any issue to the Superintendent of Documents with the proper remittance and your subscription will be reinstated. INQUIRIES AND CHANGE OF ADDRESS INFORMATION: The Superintendent of Documents, and not the Editors of the Military Law Review, is solely responsible for the individual paid subscription service. For inquires and change of address for individual paid subscriptions, fax your mailing label and new address to 202-512-2250, or send your mailing label and new address to the following address: United States Government Printing Office Superintendent of Documents ATTN: Chief, Mail List Branch Mail Stop: SSOM Washington, DC 20402 v MILITARY LAW REVIEW Volume 227 Issue 4 HUMAN RIGHTS CONVERGENCE AND FUTURE DETENTION OPERATIONS IN THE INDO-PACIFIC COLONEL RYAN B. DOWDY* I. Introduction The Indo-Pacific Command (USINDOPACOM) Area of Responsibility (AOR) is comprised of thirty-six nations and over half of the world population, some of the world’s largest militaries, and a 1 significant portion of the world’s maritime commerce. Much of the international community is inextricably tied to this region through commerce, politics, and security interests. These activities are governed by international law, primarily developed through treaties established as * Judge Advocate, United States Army. Presently assigned as the Staff Judge Advocate (SJA), 4th Infantry Division and Fort Carson. Masters in Strategic Studies, 2019, Army War College, Carlisle Barracks, PA; LL.M., 2008, The Judge Advocate General’s Legal and Center School (TJAGLCS); J.D., 1999, Norman Adrian Wiggins School of Law, Campbell University, NC; B.A., Economics, 1996, University of North Carolina – Chapel Hill, NC; Graduate, 2012, Command General Staff College, Fort Leavenworth, KS. Previous assignments include SJA, 8th Theater Sustainment Command, Fort Shafter; Professor and Chair of the International and Operational Law Department, TJAGLCS; Deputy SJA, 82d Airborne Division; Boards, Plans and Assignments, Office of the Judge Advocate General Personnel Plans and Training Division; Chief, Administrative Law, U.S. Army Special Operations Command; Trial Defense, Fort Bragg, NC; Trial Counsel and Operational Law Attorney, Heidelberg, Germany. Member of the North Carolina Bar. This article is part of a larger research paper submitted in partial completion of the Masters requirement for the Senior Service College. 1 USINDOPACOM Area of Responsibility, U.S. INDO-PACIFIC COMMAND HOME PAGE, www.pacom.mil/About-USINDOPACOM/USPACOM-Area-of-Responsibility/ (last visited Jan. 15, 2019). 322 MILITARY LAW REVIEW [Vol. 227 part of the post-World War II international order under the United Nations (U.N.).2 The complexity of the USINDOPACOM AOR makes armed conflict likely in the near future.3 While international law governs armed conflict, the debate as to which bodies of international law apply in armed conflict is not settled. The U.S. view is that the Law of War (LOW) is lex specialis, displacing laws that normally apply in peace.4 Many other states, to include several U.S. allies and key partners in the USINDOPACOM AOR, either expressly reject this view, or, through their own official statements and jurisprudence, indicate a propensity to reject this view. Generally, the opposing view asserts that states’ legal obligations during peace, specifically those pertaining to human rights, continue during armed conflict without being wholly displaced by the LOW. This opposing view is commonly referred to as the legal concept of convergence, and the body of law is generally referred to as International 5 Human Rights Law (IHRL). The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), among other key human rights treaties, instruments, and 6 customary international law (CIL), make up IHRL The complexities of this debate are myriad, and arguments for and against convergence have been litigated and made the subject of numerous publications. The purpose of this article is not to argue the virtues of the 2 U.N.
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