LAW AND MILITARY OPERATIONS IN KOSOVO: 1999-2001 LESSONS LEARNED FOR JUDGE ADVOCATES Center for Law and Military Operations (CLAMO) The Judge Advocate General’s School United States Army Charlottesville, Virginia CENTER FOR LAW AND MILITARY OPERATIONS (CLAMO) Director COL David E. Graham Deputy Director LTC Stuart W. Risch Director, Domestic Operational Law (vacant) Director, Training & Support CPT Alton L. (Larry) Gwaltney, III Marine Representative Maj Cody M. Weston, USMC Advanced Operational Law Studies Fellows MAJ Keith E. Puls MAJ Daniel G. Jordan Automation Technician Mr. Ben R. Morgan Training Centers LTC Richard M. Whitaker Battle Command Training Program LTC James W. Herring Battle Command Training Program MAJ Phillip W. Jussell Battle Command Training Program CPT Michael L. Roberts Combat Maneuver Training Center MAJ Michael P. Ryan Joint Readiness Training Center CPT Peter R. Hayden Joint Readiness Training Center CPT Mark D. Matthews Joint Readiness Training Center SFC Michael A. Pascua Joint Readiness Training Center CPT Jonathan Howard National Training Center CPT Charles J. Kovats National Training Center Contact the Center The Center’s mission is to examine legal issues that arise during all phases of military operations and to devise training and resource strategies for addressing those issues. It seeks to fulfill this mission in five ways. First, it is the central repository within The Judge Advocate General's Corps for all-source data, information, memoranda, after-action materials and lessons learned pertaining to legal support to operations, foreign and domestic. Second, it supports judge advocates by analyzing all data and information, developing lessons learned across all military legal disciplines, and by disseminating these lessons learned and other operational information to the Army, Marine Corps, and Joint communities through publications, instruction, training, and databases accessible to operational forces, world-wide. Third, it supports judge advocates in the field by responding to requests for assistance, by engaging in a continuous exchange of information with the Combat Training Centers and their judge advocate observer- controllers, and by creating operational law training guides. Fourth, it integrates lessons learned from operations and the Combat Training Centers into emerging doctrine and into the curricula of all relevant courses, workshops, orientations, and seminars conducted at The Judge Advocate General’s School. Fifth, in conjunction with The Judge Advocate General’s School, it sponsors conferences and symposia on topics of interest to operational lawyers The contents of this report are not to be construed as official positions, policies, or decisions of the U.S. Army, The Judge Advocate General, the U.S. Marine Corps, or the Staff Judge Advocate to the Commandant of the Marine Corps. The Center welcomes and solicits suggestions and contributions of relevant operational law materials from the field. LAW AND MILITARY OPERATIONS IN KOSOVO: 1999-2001 LESSONS LEARNED FOR JUDGE ADVOCATES CENTER FOR LAW AND MILITARY OPERATIONS 15 DECEMBER 2001 LAw AND MILrrARY QPERAllONSIN Kosovo: 1999-2001 LA W AND MILITARY OPERATIONS IN Kosovo, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES I. INTRODUCTION ~ 1 II. THE MILITARY OPERATIONS AND THEIR CONTEXT: A HISTORY OFKosovo s A. Introduction S B. Kosovo in the Early Years 11 C. Kosovo in RecentYears 23 III. OPERA TION ALLIED FORCE/T ASK FORCE HAWK/OPERATIONS AT CA~P AJJLE ~ENTRY, F~~OM ~~ A. Operation Allied Force 44 1. Command and Control 44 2. USEUCOM Lessons Learned 45 a. Agreement Must Be Reachedon the Applicability of the Law of Armed Conflict Prior to Commencementof Operations. 46 b. Targeting 48 1. The target review processdeveloped during Noble Anvil should be considered for future operations 48 2. Reemphasizethat the infliction of collateral damageis not a per se violation of intemationallaw. 50 3. Understand the ongoing debate over targeting the will of the enemy.... 51 3. AFSOUTH LessonsLearned 53 a. Many U.S. Judge Advocates Have an InadequateUnderstanding of the NATO Command Structure. 53 b. Staying Abreast of Rapidly Changing Diplomatic Efforts is Critical. 54 c. The Inability to Negotiate a Status of Forces Agreement Prior to the Arrival of Military Forces Creates Significant Problems. 55 1 - CENTER FOR LAW A.ND MILITARY OPERATIONS d. Be Prepared to Fulfill All Legal Missions Despite Inadequate Staffing and Resources : 56 B. Task Force Hawk 57 1. Overview 57 2. Lessons Learned 58 a. Targeting 58 1. Judge advocates must be in the Deep Operations Coordination Cell. 59 2. Develop a target review methodology and document decisions. 60 b. Rules of Engagement 62 1. Confusion over the chain of command has a direct impact on ROE development. 62 2. Expect disagreement over "templated" targets, counter-battery radar, r",'- c. Be anPrepared d " 0 bserve for d"PW filIes.Issues, Even if Not Engaged: in Ground Combat 63 64 d. Foreign Claims 66 1. Coordinate procedures for reaching outlying claimants given the security and logistical constraints. 67 2. Realize that local law may be difficult to ascertain and plan accordingly. 68 3. Understand the unique role that village elders can play in claims adjudication. 68 4. Interpreters provide essential support for claims adjudication. 69 5. Paying legitimate claims can be a force multiplier 69 e. Fiscal Law-Donation of Property Must Be Analyzed on a Case-by- Case Basis. 69 1. Consider a third-party transfer using an Acquisition and Cross- Servicing Agreement to donate property that is not excess. 70 2. Consider classifying property as "consumed" by the operation. 71 3. Realize the difficulty of classifying staple items as excess. 72 f. Contract Law Support Is Required Immediately. 73 g. Military Justice 74 1. Expect a General Order Number One. 74 2. Documenting jurisdictional alignment requires meticulous attention. ...74 3. Retaining jurisdiction over soldiers in the rear during a deployment will cause delays 75 4. On-call Trial Defense Services requires coordination. 75 h. Preparation, Personnel, and Equipment 76 i. Administrative Law 77 ii LAW ANDMILrrARyQpERAllONS IN Kosovo: 1999-2001 1. Operational tempo and the deployed environment can make administrative tasks more difficult. 77 2. Emphasize to the investigating officer that legal advice provided during the conduct of the investigation does not constitute legal review. 78 C. Camp Able Sentry, FYROM 78 1. Operating Without a Clearly Applicable Status of Forces Agreement Presents Legal Challenges. 79 2. Humanitarian Assistance Fiscal Law Issues Underscore the Importance ofJA Integration into the Staff and the Utilization of Technical Channel Support. 81 3. The Capture of the Three U.S. Soldiers Highlights the Need for a Senior and Impartial Investigating Officer. 83 IV. OPERATION JOINT GUARDIAN 84 A. Overview 84 1. Command and .Control 86 2. International Framework 89 a. United Nations Security Council Resolution 1244 89 b. United Nations in Kosovo Regulations 91 c. The Military Technical Agreement 92 d. The Undertaking of Demilitarization and Transformation of the UCK. ...93 e. Rambouillet Accords 93 f. The Kosovo Protection Corps/Commander Kosovo Force's Statement of g. NoticePrinciples ofCOMKFOR's Intent Regarding Entry of FRY and Republic of Serbia Forces in GSZ 95 h. Mission 95 B. International Law 97 1. Judge Advocates and Commanders Must Understand the International Legal Framework for the Military Mission. : 97 2. Rule of Law ' 98 a. Arrest, Investigation, Detention, and Trial of Non':members of the Force. 99 III-, r CENTER FOR LAW AND MILITARY OPERATIONS 1. Line units must be prepared to discharge the policing function in the event that a law enforcement vacuum exists. 101 2. Soldiers must have an arrest standard they can understand 103 3. Prepare to operate a detention facility 104 4. Review conditions of the detention facility. 105 5. Judge Advocates should be familiar with detention facility doctrine... 106 6. Protect detainees' rights through a review process 107 7. Units must be prepared to detain individuals believed to be a threat to the force. 112 8. Independentevidence must be developed in addition to information gathered for intelligence purposes. 115 9. The criminal justice systemcan be manipulated by citizens to further ethnic bias. 116 b. Support to the International Criminal Tribunal for the Former Yugoslavia 116 1. Expect initial ICTY investigative teams to arrive with no support. 117 2. Provide a single point of contact to the ICTY. 118 3. Devise a systemto track and report war crimes locations within the Area of Responsibility. 118 c. Rule of Law Contains a Civil Component-"Property Repatriation" 119 3. Despite Operating Under Consent-BasedAgreements, Expect No SOFA 120 4. Joint Implementation Commission Operations 121 a. Use the JIC Proceedingsto Establish Legitimacy. 122 b. Review Taskings from Multinational Higher Headquartersfor Compliance with U.S. Law. 122 c. If the JIC is Responsible for Ensuring Compliance with an Agreement, Use a SuccessMatrix to Track Compliance Issues. 123 d. The JIC Can Provide Valuable Assistanceto JAs. 124 5. Brown & Root Operations and Status 124 6. Interagency Relationships 125 a. Expect NGOs to Criticize Decisions 126 b. Expect to Mentor InteragencyActors on the Mission and Possibly Their Roles. 126 c. Coordinate with NGOs for Joint Humanitarian Projects. 126 C. Rules of Engagement 127 1. Expect Difficulties with ROE in Coalition Operations. 128 a. Modifications to the ROE Will Be Difficult to Obtain 128 IV - LAW ANDMn..rrARYQPERAllONS IN Kosovo: 1999-2001 b. Requestsfor Modification to the ROE Should Be Submitted Through Both the Operational and National Chains of Command. 128 c. Actions in Self-Defense by U.S. Soldiers Are a U.S. Issue and Interpretations of Self-Defense Issues Should Remain in U.S. Legal and Operational Channels. 129 1. Out-of-Sector Exercises and Operations 129 2. Current Operations and Training 130 2. Individual and Leader ROE Training Must Be Done Before the Mission RehearsalExercise; Individual Training Should Focus on Self- Defense. 132 3. ROE Training Should Continue During the Mission and Should Incorporate Current Intelligence and Tactical Situations.