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Legal Lessons Learned from Afghanistan and Iraq: Volume Ii

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Legal Lessons Learned from Afghanistan and Iraq: Volume Ii CENTER FOR LAW AND MILITARY OPERATIONS LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: VOLUME II FULL SPECTRUM OPERATIONS (2 MAY 2003 – 30 JUNE 2004) I. Introduction .............................................................................................. 2 II. Continuing Military Operations and Reconstruction.......................... 5 A. Review. ..................................................................................................... 5 B. Afghanistan (OEF).................................................................................. 5 1. Military Operations.................................................................................................... 5 a. Coalition Forces. .................................................................................................... 5 b. The International Security Assistance Force. ........................................................ 6 2. Afghan Government................................................................................................... 8 3. Reconstruction. .......................................................................................................... 8 C. Iraq (OIF). ............................................................................................... 9 1. Overview.....................................................................................................................9 2. Military Operations.................................................................................................... 9 a. Military Command and Authority for Operations. ............................................... 9 b. Continuing Combat Operations. ......................................................................... 10 3. Governing Iraq......................................................................................................... 13 a. Authority. ............................................................................................................. 13 b. Coalition Provisional Authority.......................................................................... 16 c. Interim Iraqi Government. ................................................................................... 17 4. United Nations Operations and other UNSC Resolutions. ...................................... 18 III. Lessons Learned.................................................................................. 20 A. International Law ................................................................................. 20 1. Judicial Reconstruction and Reform......................................................................... 20 a. One Agency Must Be Responsible For Managing a Comprehensive, Coordinated, and Fully Integrated Judicial Plan............................................................................. 21 1. Senior Task Force Judge Advocates Must Directly Liaison with the Country’s Senior Judicial Leadership in the Absence of a Coordinated Interagency Effort. 22 2. Be Prepared to Advise Commanders on Judicial Reconstruction and Reform in the Absence of Detailed Guidance From Higher.................................................. 23 3. As Part of the Legal Preparation of the Battlefield, Judge Advocates Must Develop their Own Plans for Judicial Reconstruction.......................................... 26 i LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: VOLUME II, FULL SPECTRUM OPERATIONS (2 MAY 2003 TO 30 JUNE 2004) b. Legal Teams Must Deploy with Translations of Local Laws and an Understanding of the Judicial System to Immediately begin Rule of Law Missions. ................................................................................................................................... 27 c. Be Prepared to Modify Existing Law and Implement Other Reforms to Establish the Rule of Law......................................................................................................... 28 1. Understand the Process for How a Law Becomes Enforceable........................ 30 2. Consider Other Measures to Affect Judicial Reform....................................... 31 d. Provide a Process to Vet and Seat Judges as Soon as Possible. .......................... 31 e. Be Prepared to Provide Assessments and Assist in Reconstruction of Courthouses in Coordination with Civil Affairs Teams. ............................................................... 34 1. Be Prepared to Handle Many Contract and Fiscal Law Issues During the Judicial Reconstruction Process............................................................................ 37 2. Proficient Translators are key to Court Assessments. ..................................... 38 3. Legal Teams Must be Schooled in Soldier Skills to Conduct Judicial Assessments. ......................................................................................................... 38 f. Plan for Restarting the Judicial Process With a View Towards Returning the Criminal Justice System to Full Control of the Local Populace as soon as Practicable................................................................................................................. 39 1. Be Prepared to Rebuild the Judicial System from the Ground Up. ................. 40 2. Manage Judicial Reforms to Ensure Integrity of the Process.......................... 43 3. Continue to Monitor and Assess the Status of Each Court Once They Begin Operations, Using Local Attorneys to Assist........................................................ 45 4. Ensure a System to Track Detainees Who Have Been Turned Over to the Local Courts.................................................................................................................... 48 5. Plan for a System for Paying Court Personnel................................................. 48 g. Be Prepared to Provide Instruction to Judges, Lawyers, and Police Officers on Judicial Reform Efforts............................................................................................. 49 h. Establish a Mechanism for Investigating Charges of Corruption and Impropriety Against Local Officials............................................................................................. 52 i. Be Prepared to Provide Advice on the Prosecution of Unlawful Combatants. .... 53 j. Consider Establishing a Separate Court to Adjudicate Both Felonies Intended to Destabilize the Government and Crimes Against Coalition Forces. ........................ 54 k. Implement a Process for Prosecution of War Crimes and Crimes Against Humanity Which Includes Representatives of the Occupied Territory.................... 58 l. Understand the Weapons Control Laws and Make Necessary Changes. ............. 59 2. Detention Operations. .............................................................................................. 62 a. Be Prepared to Advise Commanders on the Status of Detainees. .................... 62 1. The United States Government’s Position on Whether the Geneva Conventions Apply to a Conflict with a Particular Enemy is Crucial to Advising Commanders on the Status of Detainees..................................................................................... 63 2. Be Prepared to Make Status Recommendations on Individuals Detained By Coalition Forces during an Occupation. ............................................................... 69 i. In the Absence of Specific Doctrinal Guidance, Be Prepared to Implement a Process for Determining the Status of Detainees that Comports with the United States’ International Legal Obligations. ........................................................... 71 ii CENTER FOR LAW AND MILITARY OPERATIONS ii. Be Prepared to Conduct Formal Article 5 Tribunals on High Value Detainees........................................................................................................... 79 b. Ensure that Detention Facilities Comply with the International Law Requirements for the Proper Accountability, Notice, and Access Requirements Related to Detained Civilians. .................................................................................. 80 c. Ensure Service Members are Trained on the Proper Treatment of Detainees. .... 82 1. Understand the Legal Requirements on the Proper Treatment of Detainees... 83 2. Judge Advocates Should Assist in Predeployment Training on Detention Operations............................................................................................................. 86 d. Ensure that Command Representatives, including Judge Advocates, Visit and Inspect Detention Facilities....................................................................................... 88 e. Legal Teams Must Consider and Plan for the Relationship Between Detainee Property, the Claims Process, and Prosecutorial Evidence....................................... 90 f. Be Prepared to Advise Military Intelligence Personnel on the Legal Issues Regarding Interrogations. ......................................................................................... 95 1. Judge Advocates Assigned to Strategic Detention/Interrogation Facilities Must Have Specialized Knowledge in Domestic and International Law Impacting on Interrogations. ....................................................................................................... 97 2. All Operational Law Judge Advocates Must Be Prepared to Advise Commanders and Military Intelligence Personnel on the Legal Issues Surrounding Interrogations. ....................................................................................................
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