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Rule of Law Handbook a Practitioner's Guide for Judge Advocates

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Rule of Law Handbook a Practitioner's Guide for Judge Advocates RULE OF LAW HANDBOOK A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES 2008 The Judge Advocate General's Legal Center and School, U.S. Army Center for Law and Military Operations Charlottesville, Virginia 22903 The 2008 edition of the Rule of Law Handbook is dedicated to the memory of Charles R. Oleszycki 1944-2008 Colonel, USMCR (Ret.) Editor of the 2007 edition of the Rule of Law Handbook and U.S. Dept. of State representative to CLAMO, 2005-2007 RULE OF LAW HANDBOOK A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES 2008 EDITORS Ms. Katherine Gorove, U.S. Dept. of State representative to CLAMO CPT Thomas B. Nachbar, USAR CONTRIBUTORS MAJ Kris Ailslieger Maj J. Porter Harlow, USMC MAJ Marie Anderson Mr. Nils Kuhnert, German MOD LTC JaneElien Bagwell CPT Rachel Landsee MAJ Rose Bennett Maj David C. Morzenti, USMC LTC Joseph B. Berger III MAJ Joseph N. Orenstein COL Margaret S. Bond, USAR BG (Ret.) Coral Wong Pietsch LTC E. Edmond Bowen, Jr. LTC Charles C. Poche CPT Adam Brake, USAR MAJ Sara Root MAJ Robert A. Broadbent LTC(P) C.W. Royer, USAR MAJ Jose Cora COL (Ret.) David Shakes, USAR MAJ Marla Dow, Canadian Forces Lt Col Alex Taylor, British Army CPT Matthew Festa, USAR LTC Robert P. Vasquez LTC Allen Goshi Prof. Mark Welton, USMA as well as numerous past editors and contributors to the Rule of Law Handbook with particular recognition of MAJ Carlos Santiago, a contributor to the 2007 edition of the Rule of Law Handbook whose name was inadvertently omitted from the list of contributors Cover design by Mary Wood The contents ofthis publication are not to be construed as official positions, policies, or decisions ofthe United States Government or any department or agency thereof. TIDS PAGE INTENTIONALLY BLANK Preface Why a Practitioner's Guide The Judge Advocate General's Legal Center and School (TJAGLCS) trains and educates military, civilian, and international personnel in legal and leadership skills; develops doctrine and captures lessons learned; and conducts strategic planning in order to provide trained and ready legal personnel, imbued with the Warrior Ethos, to perfonn the JAGC mission in support of a Joint and Expeditionary Force. Within TJAGLCS, 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. There are two constantly re-occurring themes that surface in these AARs. The first is that commanders naturally tum to their legal experts 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 Global War on Terror (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 tenn 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 finnly 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.! While there is little debate over the need for such a practitioner's guide, there is little else in the rule of law arena upon which there is widespread agreement. There are divergent, and often conflicting, views among academics, various USG agencies, US allies and even within the Department of Defense (DOD), as to whether to conduct rule of law operations, what constitutes a rule of law operation, how to conduct a rule of law operation, or even what is meant by the tenn "rule of law." As in the case of any emerging area of legal practice or military specialty, doctrine is non-existent, official 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 support, and even directly participate in and lead, rule of law operations. The JAG Corps owes these lawyers at the tip of the spear practical guidance in the fonn of a resource that contains at least the fundamentals of how to establish the rule of law in the context of a US military intervention. That, then, is the genesis, purpose, and rationale for this, The Rule ofLaw Handbook: A Practitioner's (Juide 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 I The National Security Strategy of the United States 3 (2002). See also The National Security Strategy of the United States (2006), available at http://www.whitehouse.gov/nsc/ns.s.html. Rule ofLaw Handbook 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 oflaw. Indeed if the reader takes nothing else from this Handbook, they should recognize this one central concept. Without coordination with other participants 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. The Nature ofa Handbookfor Judge Advocates The Handbook is not intended to serve as US 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. It was written primarily by Judge Advocates for Judge Advocates and its scope and purpose is limited to providing the military attorney assistance in accomplishing the rule of law mission. Moreover, the vast majority of Judge Advocates will engage in rule of law activities in the context of US military interventions, and the Handbook was written with that context in mind. It is not a general guide to conducting rule of law assistance in host nations lacking a substantial, active US military presence. 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. The goal of the Handbook is to go beyond a mere recitation of recent lessons learned about rule of law operations from Judge Advocates who had participated in such missions. While useful for understanding what we have accomplished (and failed to accomplish) to date, standing alone they simply lack the refinement and comprehensive analysis to truly assist the practitioner. But it would also be impractical to make the Handbook a legal text to debate the pros and cons of the different types and approaches to rule of law missions. While a solid foundation in the theory of what rule of law is and its overall goals is important for the practitioner, theory without practice is like faith without works - empty and meaningless. The Handbook is intended not to serve as a complete solution, but rather as a starting place and a supplement for other materials. In addition to courses available through TJAGLCS,z there are many resources for information on rule of law activities are covered extensively in documents written by other agencies, many of which are referenced throughout the Handbook. Some documents are required reading for any Judge Advocate deploying in support of the current conflict,such as Field Manual 3-24, Counterinsurgency (2006), Field Manual 3-07, Stability Operations (currently in revision), the USMC Small Wars Manual (1940). Moreover, the Handbook is designed to be used with other references familiar to Judge Advocates, such as 2 TJAGLCS offers two residential programs, the one-week Rule of Law Short Course and a rule of law elective to its Graduate Course, as well as online training via JAG University, available at https://jag.learn.army.mil. ii Rule ofLaw Handbook the Operational Law Handbook (2008), and Field Manual 1-04, Legal Support to the Operational Army (currently in revision). In addition, within the Anny, rule of law activities have often been performed by Civil Affairs units, and their doctrine discusses them in detail. Both Field Manual 3-05.40, Civil Affairs Operations (2006) and Joint Publication 3-57, Civil-Military Operations (2008) are also very helpful reading for the Judge Advocate deploying to support rule of law projects. Nevertheless, no course, handbook, or manual can provide a Judge Advocate a "cookbook solution" for how to support the development of the rule of law in a deployed environment. This Handbook hopefully provides both some food for thought and points to some resources, but it is no substitute for flexibility, intelligence, and resourcefulness. Hopefully, the Handbook will serve as an educational resource for Judge Advocates who are preparing to practice in the field. Even if the Handbook only serves as an introductory resource to further Judge Advocates' professional education on the topic, it will have served a vital purpose. iii Rule ofLaw Handbook Table ofContents Preface i Why a Practitioner's Guide i The Nature of a Handbook for Judge Advocates ii Foreword ix The Rule of Law and Judge Advocates: A Short History ix I.
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