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Law and Military Operations in Haiti 1994-1995

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Law and Military Operations in Haiti 1994-1995 LAW AND MILITARY OPERATIONS IN HAITI 1994-1995 LESSONS LEARNED FOR JUDGE ADVOCATES Center for Law and Military Operations The Judge Advocate General's School United States Army · Charlottesville, Virginia CENTER FOR LAW AND MILITARY OPERATIO NS Director Colonel David E. Graham Deputy Director Inter-Service Secretariat Major Mark S. Martins Captain David G. Bolgiano Observer-Controllers Combat Maneuver Training Center Major Michael E. Sainsbury Joint Readiness Training Center Battle Command Training Program Captain James M Patterson Captain Roger C. Cartwright Reserve Component Liaisons United States Army Reserve Army National Guard ofthe United States Colonel Keith H. Harnack, USAR Lieutenant Colonel Peter Menk, ARNGUS The Judge Advocate General established the Center for Law and Military Operations in 1988 at the direction ofthe Secretary of the Army. The purpose ofthe Center is to examine legal issues that arise during all phases of military operations and to devise training strategies for addressing those issues. It seeks to fulfill this purpose in five ways. First, it is the central repository within The Judge Advocate General's Corps for memoranda, lessons learned, and after-action materials pertaining to legal support for deployed forces. Second, it serves as the Secretariat for the Inter-Service Committee on International Legal Education, which coordinates legal training provided by the separate military services to foreign countries under several statutory programs. Third, it supports judge advocates in the field by disseminating key lessons learned, by building a database of legal issues encountered by previously deployed judge advocates, by creating guides to successful operational law training and evaluation, and by recommending refinements to doctrine for legal operations. Fourth, it integrates lessons learned from deployments into the curriculum of all relevant courses, workshops, orientations, and seminars held at The Judge Advocate General's School. Fifth, with The Judge Advocate General's School, it sponsors conferences and symposia on topics of interest to operational lawyers. The Director ofthe Center also serves as Chief, International and Operational Law Division, Office ofThe Judge Advocate General. The Deputy Director heads the main office in Charlottesville, where the Center forms an important part ofThe Judge Advocate General's School and represents the Corps' growing commitment to excellence in operational law. The contents of this report are not to be construed as official positions, policies, or decisions ofthe Department ofthe Army or The Judge Advocate General. The Center welcomes and solicits suggestions and contributions ofrelevant operational law materials from the field. Please call 934-7115, ext. 339 (DSN) or (804) 972-6339 (commercial); send electronic mail to [email protected]; post a message to Major Mark Martins on the Legal Automation Army-Wide Systems (LAAWS) electronic bulletin board service (BBS); or write Major Martins, Center for Law and Military Operations, The Judge Advocate General's School, 600 Massie Road, Charlottesville, Virginia, 22903-1781. LAW AND MILITARY OPERATIONS IN HAITI, 1994-95: LESSONS LEARNED FOR JUDGE ADVOCATES CENTER FOR LAW AND MILITARY OPERATIONS 11 DECEMBER 1995 LAW AND MILITARY OPERATIONS IN HAITI, 1994-95: LESSONS LEARNED FOR JUDGE ADVOCATES CENTER FOR LAW AND MILITARY OPERATIONS TABLE OF CONTENTS I. Introduction ............................................................................... 1 II. The Military Operations and Their Context.................... 7 A. Situation Before the Military Operation ...................... 7 B. Operation Uphold Democracy ..-................................... 13 C• u.mte • d Hatzons1\T " 1u."III"1ss1on • zn• na1t1rr • • ................................. .. 22 D. Judge Advocate Support .............................................. 25 III. Lessons Learned ............................................................. 30 A. Rules ofEngagement .................................................... 34 1. Be Preparedfor Controversy Over Protection of Foreign Nationals ..................................................... 37 2. Use Situational Training .......................................... 40 3. Be Willing to Take the Lead in Multinational ROE Development .............................................................. 43 B. International Law ......................................................... 45 1. Understand the International Justification for Use ofForce and the Impact ofDomestic Legislation ..... 47 2. Expect to Practice Law Without the Benefit ofa SOFA ........................................................................ 50 3. Understand When The Law ofArmed Conflict Does Not Strictly Apply ............................................ 53 C. Intelligence Law ........................................................... 57 1. Know That Force Protection Can Justify Collecting Information on United States Persons ..................... 58 2. Understand the Different Roles ofMilitary Intelligence and Military Police ............................... 59 3. Monitor Counter-Intelligence Force Protection and Use ofIntelligence Contingency Funds ................... 62 1 u CENTER FOR LAWAND MILITARY OPERATIONS D. Detention ofNon-members ofthe Force....................... 63 1. Begin Planning Early for Detention Issues .............. 65 2. Give Two Judge Advocates Independent Roles in the Release Determination Process ........ .. ...... .. .. .. .. .. 67 3. Encourage the Commander to Delegate Authority to Release ........ .. .. .. .. .. .. .. .... .. .. .. .. ... .. ... .. ..... .. .. ...... .. 70 E. Weapons Buyback and Control..................................... 72 1. Know and Coordinate With All the Key Players in the Weapons Program............................................... 74 2. Be Prepared to Advise Commanders About Disarming Threats to the Force ..... .'.......................... 76 3. Understand Applicable Search and Seizure Law ...... 77 F. Media Relations............................................................. 78 1. Describe the Processes and Legal Authorities that Explain Military Actions ... .. ........... .. .. ..... ... .. .. .. .. ..... 80 2. Acknowledge the Legitimacy ofthe Media's Presence in Operations Other Than War.................. 82 G. Joint, Inter-Agency, and Nongovernmental Coordination . .. .. .. .... .... .. .. .. .. .. .... .. .. .. .. .. .. .... ... .... .. .. 84 1. Use Technical Judge Advocate Channels ................. 85 2. Develop Skills/or Inter-Agency Coordination ... ~...... 89 3. Maintain Close and Open Communications With the ICRC and other Nongovernmental Agencies ..... 93 H. Civil Affairs ...... .. .. .. .......... .. ... .......... .. .. .. .... .. .. .. .. .. .. .. .. 97 1. Ensure That the StaffJudge Advocate is the Sole Advisor to the Command on Its Legal Obligations ... 99 2. Understand All Three Legs in the Stool of the Justice System .. .. .. ... ..... ... .. .. .. .. ........ .. ... ... .. .. ..... .. .. .. I02 3. Be Prepared to Mentor Foreign Judges and Ministry Officials ...................................................... 105 L Criminal Law ... ... .. ..... .. .. .. .. .. .. .. .. .. .... .. .... ... .. .. .. .. .... .. .. .. 107 1. Seek Court-Martial Convening Authority for the Joint Task Force Commander Over All Members ofthe Joint Task Force ............................................. 109 LAWANDMILITARYOPERATIONSINHAITL 1994-95 m 2. Emphasize to Soldiers That Neither General Guidancefrom the President Nor Personal Feelings Will Justify Disobedience........................... 112 3. Be Prepared to Conduct Courts-Martial in the Area ofOperations............................................................. 115 J. Legal Assistance .. .. .. .. .. ... .. ... .. .. .... .. ... .. .. .. .. ... .. .... .. 116 1. Expect the Rush in Demand for Wills .............. .... ..... 118 2. Educate Soldiers That Deployment Does Not Dissolve Their Debts .... .... .. .. .. .... .. .. .. ... ... .. ... .. .. 119 3. Discourage General Powers ofAttorney ................... 122 K. Administrative Law........................................................ 124 1. Advise Commander to Announce Clear and Straightforward Guidance on "War Trophies" ........ 127 2. Brace/or the Flood o/Questions About Eligibility to Obtain Medical Care, Use the Post Exchange, and Travel in Military Aircraft ................................ 129 3. Take Initiative to Assist Officers Conducting Official Investigations .............................................. 131 L. Procurement Law and Fiscal Constraints .................... 132 1. Know the Terms and Conditions ofthe LOGCAP ... 134 2. Expect Second-Guessing About Advance Payments ... on Acqu1s1t1ons ......................................................... 136 3. Step Forward to Ensure that Operational Funds are not Expended for Unauthorized Purposes ......... 138 4. Understand the Status ofCivilian Contractor Employees ................................................................ 142 M. Claims .......................................................................... 144 1. Appoint Many Judge Advocates to Foreign Claims Commissions ............................................................ 146 2. Make Linguist Support and Protection of Claimants Leadership Priorities ............................... 148 3. Expect Misdirected and Exaggerated Claims .......... 150 IV CENTER FOR LAWAND MILITARY OPERATIONS N. Reserve Components ... .. .. ... .. .
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