THE JUDGE ADVOCATE GENERAL'S LEGAL CENTER lit SCHOOL, US. ARMY (ENTIR FOR LAW AND MILITARY OPERATIONS '... RULE OF LAW HANDBOOK A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 2009 The Judge Advocate General’s Legal Center and School, U.S. Army Center for Law and Military Operations Charlottesville, Virginia 22903 [email protected] [email protected] The 2009 edition of the Rule of Law Handbook is dedicated to Katherine Gorove Editor of the 2008 edition of the Rule of Law Handbook and U.S. Dept. of State representative to CLAMO, 2007-2008 RULE OF LAW HANDBOOK A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 2009 Although the Center for Law and Military Operations publishes the Rule of Law Handbook, it is the product of contributions by dozens of authors from a multitude of agencies, US, foreign, and non-governmental – military and civilian – over the course of several years. Before CLAMO took over sole publication in 2008, the Handbook was a joint publication of CLAMO and the Office of the Joint Judge Advocate at Joint Forces Command. But even that shared publication arrangement inadequately represents the breadth of contributions from other agencies. It would be difficult to list all who have contributed to the development of this, the third edition of the Handbook. Official clearance processes required by some agencies required to ascribe individual authorship credit makes doing so even less practical. The current editors are indebted to both our past and current contributors. 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 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 perform 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 reviews (AARs) from Judge Advocates, paralegals, and other legal professionals recently returned from deployments. These AARs reveal two constantly re-occurring themes. The first is that commanders naturally turn to their Judge Advocates 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 that ongoing overseas contingency operations will require the US military to engage in operations that include a rule of law component as an essential part of the overall mission. The 2002 National Security Strategy (NSS) mentioned the term nine times. In the 2006 NSS, the count was sixteen. 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.1 The current administration has also underscored its commitment to the rule of law. President Obama has remarked, “I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law.”2 While there is little debate over the need for such a practitioner’s guide, little else in the rule of law arena garners 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 the term “rule of law” means. As in the case of any emerging area of legal practice or military specialty, doctrine is in its infancy,3 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 1 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/nss.html. 2 President Barrack Obama, Address at Central Intelligence Agency Headquarters (Apr. 20, 2009), available at https://www.cia.gov/news-information/speeches-testimony/president-obama-at-cia.html (last visited Sept. 3, 2009). 3 See U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY, Appendix D (Apr. 2009) (doctrine addressing rule of law activities and the issues related to rule of law activities in which judge advocates may become involved). i Rule of Law Handbook 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 form 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 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 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 of a Handbook for 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. Written primarily by Judge Advocates for Judge Advocates, the limits of its scope and purpose are to provide 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 writing of the Handbook occurred 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 AAR comments about rule of law operations from Judge Advocates who had participated in such missions. These comments are useful for understanding what we have accomplished (and failed to accomplish) to date. Standing alone, however, they simply lack the refinement and comprehensive analysis to assist the practitioner truly. Nevertheless, 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 constitutes the rule of law is and its overall goals is important for the practitioner, theory without practice is of little utility when actually trying to take action. ii Rule of Law Handbook The Handbook does 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,4 documents written by other agencies extensively cover many resources for information on rule of law activities. The Handbook references many of these. Any Judge Advocate deploying in support of the current conflict should make reading some of these a requirement. They include Field Manual 3-24, Counterinsurgency (2006), Field Manual 3-07, Stability Operations (2008), and the USMC Small Wars Manual (1940). Moreover, the design of the Handbook intends its use with other references familiar to Judge Advocates, such as the Operational Law Handbook (2009), and Field Manual 1-04, Legal Support to the Operational Army (2009). In addition, within the Army, Civil Affairs units have often performed rule of law activities, 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 food for thought and points to some resources, but it is no substitute for flexibility, intelligence, and resourcefulness.