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RULE OF LAW HANDBOOK A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES July 2007 Center for Law and Military Operations The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903 Joint Force Judge Advocate United States Joint Forces Command Norfolk, Virginia 23551 THIS PAGE INTENTIONALLY BLANK RULE OF LAW HANDBOOK A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES July 2007 LT Vasilios Tasikas, USCG CPT Thomas B. Nachbar, USAR Mr. Charles R. Oleszycki, Dept. of State Mr. Cliff Aims, USJFCOM Mr. J. R. McCutcheon, USJFCOM LTC Corey L. Bradley, USA CPT Thomas B. Nachbar, USAR LTC Elizabeth Borreson, ARNG Mr. Markus Nederkorn, German MOD COL John L. Charvat, USA Mr. Charles R. Oleszycki, Dept. of State LTC Paul Cohen,.USAR CDR Jamie Orr, USN Mr. Dan Donovan, USJFCOM COL Bruce Pagel, USAR LtCol Todd J. Enge, USMC MAJ Juan A. Pyfrom, USA COL Richard Fay, ARNG MAJ Cynthia Ruckno, USA CPT Brent E. Fitch, USA MAJ Nicholas M. Satriano, USAR CDR Steve Gallotta, USN MAJ Jeffrey L. Spears, USAR COL Dave S. Gordon, USAR LT Vasilios Tasikas, USCG Ms. Michelle Hughes, USJFCOM Lt Col Alex Taylor, British Army LTC Theodore J. Hunting Horse, USMC LTC(P) Craig Trebilcock, USAR LTC Eric T. Jensen, USA MAJ Sean M. Watts, USA LTC Laura K. Klein, USA MAJ Eric W. Young, USA LTC Michael Lacey, USA Cover design by Mary Wood Production by SGT James M. Kilbane, USA 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. THIS PAGE INTENTIONALLY BLANK Preface Judge Advocates have been significantly involved in rule of law projects since shortly after the successful invasion of Afghanistan in 2001. The best and brightest of the Judge Advocate General's Corps have been on the cutting edge of the effort to bring stability and rule of law support to the embryonic and fragile democratic governments in both Afghanistan and Iraq, and the US Government (USG) presence in the Horn of Africa also includes a broad range of rule of law activities. There is every reason to believe that if the Global War on Terror (GWOT) is indeed the "long war" as so many have predicted, these legal pioneers will continue to perform such missions for the foreseeable future. Why a Practitioner's Guide The Center for Law and Military Operations (CLAMO) specializes in the collection of after action reports (AARs) from Judge Advocates and paralegals recently returned from deployments in either Operation Iraq Freedom (OIF) or Operation Enduring Freedom (OEF). There are two constantly re-occurring themes that surface in these AARs. The first is the command naturally turns to the legal expert within the task force to plan, execute, coordinate, and evaluate rule of law efforts. The second is that no comprehensive resource exists to assist practitioners in fulfilling this task. It is highly likely the GWOT will require the US military to engage in operations that include rule of law operations as an essential part of the overall mission. The term was mentioned nine times in the 2002 National Security Strategy, and sixteen times in the 2006 National Security Strategy (NSS). As the 2002 NSS explains: America must stand firmly for the nonnegotiable demands of human dignity: the rule of law; limits on the absolute power of the state; free speech; freedom of worship; equal justice; respect for women; religious and ethnic tolerance; and respect for private property.' The need for such a practitioner's guide for rule of law is therefore irrefutable. A much more challenging and debatable question, however, is what such a guide should contain and what should be the primary focus. Perhaps an even more fundamental and important question is exactly what is meant by the term "rule of law"? There are divergent, and often conflicting, views among academics, various USG agencies, US allies and even within the Department of Defense (DOD), on what is meant by the "rule of law". As in the case of any emerging area of legal practice or military specialty, doctrine is non-existent, oficial guidance is incomplete, and educational opportunities are limited. While acknowledging the above challenges, the Judge Advocate General's Corps leadership still recognizes the inevitability that Judge Advocates on the ground under extraordinarily difficult conditions will be called upon to execute the rule of law mission. The JAG Corps owes these lawyers at the tip of the spear practical guidance in the form of a comprehensive resource that discusses the other rule of law players and the challenges that exist ' The National Security Strategy of the United States of America, September 2002, p.3. See also The National Security Strategy of the United States, March 2006, available at http://www.whitehouse.gov/nsc/nss.html. Rule of Law Handbook in coordination with them, a broad discussion of the fundamental principles that most experts agree describe the all-encompassing term of rule of law, some guidance on how to plan for and execute rule of law operations, and a discussion of some prior lessons learned. That then is the genesis, purpose, and rational for this, The Rule of Law Handbook: A Practitioner's Guide for Judge Advocates. What is agreed upon by almost every individual who has worked in this area is that joint, inter-agency and multinational coordination is the basic foundation upon which all rule of law efforts must be built In the past, military services, US government agencies, and coalition partners have often conducted the rule of law mission in isolation. History has shown, however, that such an approach often results in much energy expended in, a wasted effort. To maximize rule of law reform efforts, we must achieve synchronization and integration across the spectrum of rule of law. Indeed if the reader takes nothing else from this Handbook, they should recognize this one central concept. Without coordination with other players in the rule of law arena, the efforts of a single contributor in isolation are at best less than optimal and at worst counter- productive to the overall rule of law reform objectives being pursued. Quite simply, coordination and synchronization is to the rule of law effort what fires and maneuver is to the high intensity conflict. Recognizing that the rule of law mission occurs in the joint operational environment, CLAMO has partnered with the lawyers of the Joint Legal Training Cell and other subject matter experts at US Joint Forces Command (USJFCOM) to produce this Handbook. USJFCOM as the DOD's designated lead for the training of joint forces, development of joint doctrine, resourcing of joint trained forces, and capturing joint lessons learned is uniquely positioned to coordinate and leverage the rule of law expertise developed within the Services and among USG agencies, and to help bring it to the ~udgeAdvocates bf all Services who are tasked support rule of law missions in joint operations. While not joint doctrine, this Handbook is intended to be a valuable legal resource for all military lawyers conducting future rule of law operations. What the Handbook Is Not The Handbook is not intended to serve as US policy or military doctrine for rule of law operations. CLAMO has neither the resources, nor more importantly the mission, to propose or institute doctrine on a topic upon which no consensus has been achieved. The Handbook is not intended to offer guidance or advice to other military professionals involved in the rule of law mission. It was written by Judge Advocates for Judge Advocates and its scope and purpose is limited to providing the military attorney assistance in the accomplishment of the rule of law mission. While others involved in rule of law missions may find the Handbook helpful, they should understand its intended audience is the Judge Advocate or paralegal involved in the rule of law mission during on-going military operations. Finally, the Handbook is not only intended as a resource for Judge Advocates serving in the OIF and OEF theaters. A conscious decision was made to make the lessons learned and principles discussed as universal in application as possible. The Handbook is not meant to offer an all inclusive formula on how to conduct rule of law operations, nor does the book provide an exhaustive prescriptive list of tactical plans to implement rule of law missions. Although the GWOT rule of law mission today is being conducted primarily in Iraq and Afghanistan, it would be shortsighted and counterproductive to make the Handbook only applicable to missions Rirle of Law Handbook conducted in those theaters. Instead, the Handbook pre-supposes that within the next ten years, Judge Advocates will find themselves conducting these rule of law missions in a variety of different circumstances, environments, and locations. The Handbook and its contents must therefore be flexible and geographically universal in application. As such, this Handbook should be regarded as one reference source for Judge Advocates to begin developing and planning their rule of law missions. Rule of law operations are complex, highly context specific, and novel ­ this Handbook is more a compass than a map. What the Handbook Is As previously discussed, this publication is primarily designed to assist Judge Advocates as they practice law during military operations in the currently ill-defined realm of rule of law. There was much debate and discussion from this publication's authors and contributors on its final form and content. Was it to use the typical "pilot's checklist"

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