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Military Law Review, Volume 225, Issue 4, 2017

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Military Law Review, Volume 225, Issue 4, 2017 Volume 225 Issue 4 2017 ACADEMIC JOURNAL 27-100-225-4 M L R A N S V: A E NATO S P K L I S L H I MILITARY LAW REVIEW LAW MILITARY Lieutenant Colonel George C. Kraehe C R: H I C C’ J-P B G C E U C M J Major Trenton W. Powell M C R: A H’ C C C-22 Major Matthew J. Aiesi A I I G S: A A A R 15-6 P L I Major Sara M. Tracy-Ruazol VOLUME 225 • 2017 Academic Journal 27-100-225-4 Military Law Review Volume 225 Issue 4 2017 CONTENTS Articles No Substitute for Victory: An Evaluation of NATO State Practice in Kosovo and Libya and the Importance of Success on the Law of Humanitarian Intervention Lieutenant Colonel George C. Kraehe 807 Command Responsibility: How the International Criminal Court's Jean-Pierre Bemba Gombo Conviction Exposes the Uniform Code of Military Justice Major Trenton W. Powell 839 Military Competency Reviews: A Hobson's Choice Conditioned on a Catch-22 Major Matthew J. Aiesi 884 Administrative Investigations in an Era of Increased Government Scrutiny: An Analysis of Army Regulation 15-6 and its Perceived Lack of Independence Major Sara M. Tracy-Ruazol 911 i Headquarters, Department of the Army, Washington, D.C. Academic Journal No. 27-100-225-4, 2017 Military Law Review Volume 225 Issue 4 Board of Editors Colonel Randolph Swansiger Dean, The Judge Advocate General’s School Lieutenant Colonel Edward C. Linneweber Chair, Administrative and Civil Law Department Lieutenant Colonel Michael P. Harry Vice Chair, Administrative and Civil Law Department Major Jess B. Roberts Director, Professional Communications Program Mr. Sean Lyons Legal Editor Mr. Benjamin Spencer Contributing Editor Captain Jack B. Cohen Editor Captain Nicole Ulrich 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 http://www.jagcnet.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 225 MIL. L. REV. page number (2017). 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 previous publications. 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- [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. I I T 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 225 Issue 4 “NO SUBSTITUTE FOR VICTORY”1: AN EVALUATION OF NATO STATE PRACTICE IN KOSOVO AND LIBYA AND THE IMPORTANCE OF SUCCESS ON THE LAW OF HUMANITARIAN INTERVENTION LIEUTENANT COLONEL GEORGE C. KRAEHE* I. Introduction Since 2011, hundreds of thousands of civilians have been killed in Syria’s non-international armed conflict.2 In Aleppo, women and children have been killed and maimed on a daily basis without regard for * Judge Advocate, U.S. Army National Guard. Presently serving as the Staff Judge Advocate of the New Mexico National Guard. M.St., 2017, University of Oxford, Oxford, UK; M.A., 2015, Harvard University, Cambridge, MA; J.D., 1994, University of Texas School of Law, Austin, TX; B.A., 1990, Yale University, New Haven, CT. Previous assignments include New Mexico Army National Guard, 2012-15 (Brigade Judge Advocate, 2012-13; Deputy State Judge Advocate, 2013-15); U.S. Forces - Afghanistan, Detachment West 2011-12 (Command Judge Advocate); 111th Maneuver Enhancement Brigade, 2009-11 (Brigade Judge Advocate); 98th Troop Command, 2007-09 (Brigade Judge Advocate); 25th Infantry Division and Multi-National Division - Iraq, 2006-07 (Administrative Law Attorney; Rule of Law Attorney); 1st LOD, 2006-07 (Legal Assistance Attorney); U.S. Forces Command, 2001-02 (International Law Attorney); III Corps, 1998-2001 (Claims Attorney); Defense Institute of International Legal Studies, 2008-present (instructor). In his civilian capacity, LTC Kraehe is an Assistant U.S. Attorney and the National Security/Anti-Terrorism Advisory Council Coordinator for the District of New Mexico. He previously worked as a researcher for Harvard Law School's Program on International Law and Armed Conflict. This article was submitted in partial completion of the Master of Studies in International Human Rights Law, the University of Oxford. 1 Gen. of the Army Douglas MacArthur, Farewell Address to Congress (April 19, 1951) (82d Cong., 97 Cong. Rec. 4125 (1951)). 2 See Max Fisher, Straightforward Answers to Basic Questions About Syria’s War, N.Y. TIMES, Sept. 19, 2016. 806 MILITARY LAW REVIEW [Vol. 225 humanitarian norms of conduct.3 Elsewhere in Syria, countless innocents have been slaughtered by the so-called Islamic State, an organization that has redefined the scope and breadth of human depravity: prisoners are burned alive, children crucified and beheaded, children as young as eight years old recruited as soldiers and suicide bombers, homosexuals cast from towers to their deaths, women and young girls sold into sexual slavery, ethnic and religious minorities virtually exterminated, and irreplaceable cultural heritage defaced and destroyed on an unprecedented scale.4 The conflict in Syria also has had collateral effects that impact peace and security regionally and internationally.
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