Rule of Law in Iraq & Afghanistan

[jmm99]

My plan was to answer Steve's question by commenting on the USIP monograph in general; and on its Rule of Law section in particular.

I do have some initial thoughts - without commentary now.

In Guiding Principles for Stabilization and Reconstruction (Glossary), one finds the following definitions, which provide some boundaries for the scope of "Stabilization and Reconstruction":

Stabilization
Ending or preventing the recurrence of violent conflict and creating the conditions for normal economic activity and nonviolent politics. (UK Stabilisation Unit, “Helping Countries Recover From Violent Conflict.”)

Violent Conflict [defined by USIP]
A clash of political interests between organized groups characterized by a sustained and large-scale use of force.

Peace Enforcement
Coercive action undertaken with the authorization of the United Nations Security Council to maintain or restore international peace and security in situations where the Security Council has determined the existence of a threat to the peace, breach of the peace, or act of aggression. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

Peacekeeping
Action undertaken to preserve peace, however fragile, where fighting has been halted and to assist in implementing agreements achieved by the peacemakers. (UNDPKO, “Peacekeeping Operations Principles and Guidelines.”)

Peacebuilding
Measures aimed at reducing the risk of lapsing or relapsing into conflict, by strengthening national capacities for conflict management and laying the foundations for sustainable peace. (UN DPKO, “Peacekeeping Operations Principles and Guidelines.”)

Disarmament, Demobilization, and Reintegration (DDR)
A process that contributes to security and stability in a stabilization and reconstruction context by removing weapons from the hands of combatants, taking the combatants out of military structures, and helping them to integrate socially and economically into society by finding civilian livelihoods. (United Nations, Integrated DDR Standard.)

Reconstruction
The process of rebuilding degraded, damaged, or destroyed political, socioeconomic, and physical infrastructure of a country or territory to create the foundation for long-term development. (United States Army, Field Manual 3-07: Stability Operations.)

Development
Long-term efforts aimed at bringing improvements in the economic, political, and social status, environmental stability, and the quality of life for all segments of the population. (DRAFT UK CAWG, Inter-Departmental Glossary of Planning Terminology.)

These are not modest boundaries even if one reads them conservatively.

The scope of the Stabilization and Reconstruction concept is established by its summaries of End States:

2.1 End States

Below is a summary description of each end state, framed according to the perception of the host nation population, as they will be the final arbiters of whether peace has been achieved.

• Safe and Secure Environment
Ability of the people to conduct their daily lives without fear of systematic or large-scale violence.

• Rule of Law
Ability of the people to have equal access to just laws and a trusted system of justice that holds all persons accountable, protects their human rights and ensures their safety and security.

• Stable Governance
Ability of the people to share, access or compete for power through nonviolent political processes and to enjoy the collective benefits and services of the state.

• Sustainable Economy
Ability of the people to pursue opportunities for livelihoods within a system of economic governance bound by law.

• Social Well-Being
Ability of the people to be free from want of basic needs and to coexist peacefully in communities with opportunities for advancement.

and Key Principles:

3.1 What are the key cross-cutting principles in an S&R environment?

• Host nation ownership and capacity means that the affected country must drive its own development needs and priorities even if transitional authority is in the hands of outsiders. Ownership requires capacity, which often needs tremendous strengthening in S&R environments.

• Political primacy means that a political settlement is the cornerstone of a sustainable peace. Every decision and every action has an impact on the possibility of forging political agreement.

• Legitimacy has three facets: the degree to which the host nation population accepts the mission and its mandate or the government and its actions; the degree to which the government is accountable to its people; and the degree to which regional neighbors and the broader international community accept the mission mandate and the host nation government.

• Unity of effort begins with a shared understanding of the environment. It refers to cooperation toward common objectives over the short and long term, even when the participants come from many different organizations with diverse operating cultures.

• Security is a cross-cutting prerequisite for peace. The lack of security is what prompts an S&R mission to begin with. Security creates the enabling environment for development.

• Conflict transformation guides the strategy to transform resolution of conflict from violent to peaceful means. It requires reducing drivers of conflict and strengthening mitigators across political, security, rule of law, economic, and social spheres, while building host nation capacity to manage political and economic competition through peaceful means.

• Regional engagement entails encouraging the host nation, its neighboring countries, and other key states in the region to partner in promoting both the host nation’s and the region’s security and economic and political development. It has three components: comprehensive regional diplomacy, a shared regional vision, and cooperation.

To me, this looks like a comprehensive state-building program which has its legal bases in the UN Charter and Conventions; International Human Rights Law; and, to a lesser extent, International Humanitarian Law (which goes beyond the Laws of War [LOAC] accepted by the US).

In any event, in considering the value of "Stabilization and Reconstruction", one has to view the concept in terms of - Where am I ? Who am I ? Why am I here ? Who owns me ?

Regards

Mike

[jmm99]

This is a total sidebar to the USIP article. I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" ).

The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...), as evidenced by:

1940 USMC Small Wars Manual.pdf
1940 FM 27-5 Military Government.pdf
1943 FM 27-5 (OpNav 50E-3) Military Government & Civil Affairs.pdf
1947 FM 27-5 (OPNAV P22-1115) Civil Affairs - Military Government (op '56).pdf
1954 FM 41-15 Civil Affairs Military Government Units.pdf
1957 FM 41-10 Civil Affairs - Military Government Operations.pdf * intended for use in conjunction with FM 27-5 and FM 41-15.
1958 FM 41-5 (OPNAV P 21-1 AFM 110-7 NAVMC 2500) Joint Manual for Civil Affairs - Military Government.pdf *This manual supersedes FM 27-5/OPNAV P 22-115,14 October 1947, including C 1, 19 June 1956.

and the close link between these doctrinal publications and the Laws of War publications:

1914 FM 27-10 Rules of Land Warfare.pdf
1934 FM 27-10 Rules of Land Warfare.pdf
1940 FM 27-10 Law of Land Warfare (up '44).pdf
1944 Ann Arbor JAG School, Law of Belligerent Occupation.pdf
1956 FM 27-10 Law of Land Warfare (up '76).pdf

Those "law books" owe their principal ancestry to the 1863 Lieber Code (G.O. 100), of course.

While these ancient Civil Affairs manuals are heavily law-based, they are not overly legalistic - and are short. The 1940 Military Government manual uses 23 pages to cover the substantive subject matter !! The 1940 Small Wars Manual is more verbose (about 100 pages, starting at Chapter XI).

Line officers then seem to have been much more law oriented than at present. Tony Waller (no law degree) was an adept courtroom examiner and arguer. A number of Marine generals (serving in WWII and after, some into the Vietnam Era) had law degrees - which did not contaminate their line officer service.

General Clifton B. Cates, 19th Commandant of the Marine Corps, was a 1916 University of Tennessee law school graduate. He retired from the Marine Corps in 1953.

General Earl E. Anderson was a lieutenant colonel when he graduated from George Washington University's school of law (as law review editor-in-chief) in 1952. For the next 12 years he mixed legal and aviation duties then, until his retirement in 1975, was an aviator and a senior staff officer.

Lieutenant General Walter W. Wensinger was a 1917 University of Michigan law school graduate before joining the Marine Corps and, other than duty in the Office of the Navy JAG for three years, was a career infantry officer.

General Merrill B. Twining, a 1932 graduate of George Washington University's law school, was a career infantry officer.

Lieutenant General George C. Axtell was a career aviator who graduated from George Washington University's law school as a major in 1952.

Lieutenant General Herbert L. Beckington, an artillery and infantry officer, graduated from Catholic University law school in 1953, as a major.

Major General Avery R. Kier was a 1927 graduate of Kansas City School of Law, but was a career aviator.

Brigadier General James Snedeker, an infantry officer, was a 1940 law school graduate who represented the Marine Corps and the naval service on numerous boards and committees relating to military law, and was the first Marine to hold the billet of Deputy Judge Advocate General of the Navy.

In an earlier era, General Holland M. Smith, who retired in 1946, was a graduate of the University of Alabama's law school, and practiced, briefly, before entering the Marine Corps.

From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf; and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf

On the other hand, that Neanderthal Manual would take a lot of time.

Regards

Mike

[Polarbear1605]

From 1989 Solis, Marines and Military Law in Vietnam - Trial by Fire 01.pdf; and Holland Smith tells his own story, 1948 Holland Smith, Coral & Brass.pdf

On the other hand, that Neanderthal Manual would take a lot of time.

Regards

Mike

Yep, reading Gary Solis's Military Law In Viernam: Trial by Fire now. It covers from 1965 until we got out. I am struck by the few number of "war crimes" court martials and how little publicity they got. There is also an interesting court martial of a Sgt that shot and killed a USO singer as she sang. The Sgt got 20 years and was released after 2 years and 9 days when his appeal court ordered a retrial that fell apart because evidence had been lost.

[jmm99]

Technically, the killing of a civilian in South Vietnam could not be a war crime. The victim was a resident of an allied nation, protected by the laws of Vietnam. So, the charge would be some version of homicide (murder, manslaughter, negligent homicide), with a probable 916 (Justification) defense. A Retro Haditha or Back to the Future, which you know well.

Now, if the shootee were an enemy combatant (NVA or VC Main Force), perhaps protected by the Geneva Convention in full (GCs III) or Common Article 3, there would be no crime at all - unless the shootee was shot after capture (which could be prosecuted as a war crime).

One problem in Vietnam (which was solely for GVN and USG political reasons) was treatment of the VCI (Viet Cong Infrastructure) as civilians. Let's take our friendly VC political cadre associated with a VC company. In reality, that cadre would usually hold a grade one step higher than his military counterpart ("civilian" control of the military ); and would personally dabble in selective violence if needed.

If the VCI cadre was killed by, say, a PRU (Provincial Reconnaissance Unit), he was technically a civilian under South Vietnamese law. On the other hand, our Civil Affairs officers were legitimate military targets. In terms of functional equivalence, the VCI cadre had more military clout than the US CA officer.

Vietnam mucked up things in a number of areas.

Regards

Mike

PS: For those interested in the OSO shooting, it's at Part 7, pp.2-4 pdf. Basic facts - not contested:

On 2O July 1969 a USO show was in progress in the Staff and Officers' Club at the 1st Force Reconnaissance Company's base camp. Miss Catherine Anne Warnes, singer for the Australian musical group, "Sweethearts on Parade," stepped back from the microphone after singing the show's final song, just as there was a muffled shot. The 20-year old Australian fell to the floor, dead.
...
By 2100 the Staff and Officers' Club was filled with Marines anxious to hear the band and the attractive singer in the pink miniskirt. The 1st Force Reconnaissance Company commander, Major Roger E. Simmons, sat about eight feet from the stage. ... Later investigation revealed that the killer had fired one .22-caliber round from behind a jeep that was parked 35 yards from the Staff and Officers' club. The bullet cut through the club's screen wall, entered Miss Warnes' left side, pierced her aorta, and exited her right side, killing her almost instantly.

Was Major Simmons the intended target? Newspapers speculated that Miss Warnes had stepped into the line of fire ("Was Girl's Killer Gunning for Maj?" read one headline), but Major Simmons thought not. It was not an issue at trial, although a straight line could be drawn from the major's position to Miss Warnes to the jeep from behind which the fatal round was fired.

I conned myself just now into ordering a used hardcover of Solis' Son Thang: An American War Crime, whose title is a misnomer in light of what I wrote above (Son Thang was not a "war crime").

[Polarbear1605]

Well if you read Son Thang by Gary Solis...then you also need to read Honor Restored by Denzil D. Garrison. Mr Solis writes Son Thang from the prosecuter's point of view. Honor Restored is written by a member of the defense team. There is also a third book Blue's Bastards by Randy Herrod the defendent. Blue's Bastards has my favorite line...reportedly it came from a colonel, the senior member of the court martial board, immediately after the court martial: "I'm not going to tell you how we voted, but I'll tell you this: if we send the little sons of bitches out there, then we sure as hell have to take care of them." You also get a better feel for Ollie North's involvement in the court martial from Garrison's book. James Webb also pops up in this story.

[jmm99]

Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain.

Anyway, I got through the first two chapters (which includes some of Ollie North and Jim Webb, +s to me); but I have to go back to the hamlet aerial and get the geography and timeline down. Son Thang was not My Lai; but it wasn't Haditha either.

And, yes, after 45 pages, I saw Gary Solis sitting at the prosecution table - e.g., his description of the carnage caused by military munitions (p.45). As a defense counsel, you try to keep out the blood and guts photos; but often that is not possible. To get exclusion, you probably have to stipulate points that the prosecution would otherwise have to prove. As Tony Waller did by pleading Guilty to most of the Specification, but Not Guilty to the Charge and to the rest of the Specification.

Bottom line: Gary Solis would be a formidible opponent (smart guy and good writer).

OK: I followed your tactical advice - books ordered (under $10 inc. shipping)

Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

Regards

Mike

[jmm99]

I could rip at Section 7 and rewrite many paragraphs. That would take a lot of time, which I'd rather devote to my Neanderthal Manual.

I did find three sections that stood out to me as being positive (even though written in something of a UNese dialect) - and worthy of some thought since they are principles.

First,

7.4.2 Act only with an understanding of the local context.

A proper rule of law assessment is vital because assistance should be designed in relation to the context rather than universal templates. A multidisciplinary team comprising both host nation and international actors, that covers both urban and rural areas, is optimal [JMM: is mandatory]. Consult the users of the system as well as justice institutions.

Key questions for assessment include the following:

• What does the formal justice system look like on paper and in practice? Can it perform basic rule of law functions?

• What are the informal rules, traditions, and culture that underlie the system and its capacity and needs?

• What subsystems of justice are used by the population, including non-state justice and policing?

• What are the broader conflict-related factors, including regional influences, the security/crime situation, how human rights are being protected, the socioeconomic and political context, the cultural context, and the treatment of marginalized groups?

• What was the role of the justice system in the conflict? Was it part of the problem or part of the solution?

• What are the key drivers and mitigators of conflict that are affecting or could affect rule of law?

From the People; back to the People, said Mao. In practice, Mao's movement failed in that regard. As stated, Mao's theory is the true Rule of Law; that is, the rules come in raw form from the People, are refined by the Government and sent back to the People for approval; and so on, to arrive at an acceptable product.

Of course, you can have Rule by Law, where the rules are made by the Government's fiat. So long as the People accept those rules, you have a workable system; and can call it "Rule of Law". If a significant portion of the People does not accept them (feel they are "unjust"), you have a problem.

Second,

7.4.5 Recognize interdependence.

Rule of law requires more than an exclusive focus on formal justice institutions. It is an interdependent system of many parts involving institutions that manage justice (e.g., ministries), law enforcement agencies, courts, prisons, oversight bodies, law reform agencies, and legal education institutions. The justice system also depends on interaction with non-state justice systems, non-state actors (e.g., civil society), and the general population. Progress in security, governance, economic development and social well-being are all dependent on a functioning rule of law system.

Accepted as written.

Third (three parts, all intertwined),

7.5.3 Approach: Legal Framework Assessment

Understand the existing legal framework as the first step in working toward a just one. Laws may be chaotic, meaning it is difficult to answer the question of what law applies. They may also be deficient, meaning they contain provisions that are inconsistent with human rights or are antiquated and fail to address common S&R challenges, such as property rights, human trafficking, and organized crime. In most war-torn states, the legal framework frequently exhibits signs of neglect and political manipulation, contains elements of discrimination and seldom meets the requirements of international human rights and criminal law standards. Legal framework assessment involves a comprehensive mapping of all laws and decrees - formal and informal - followed by an analysis that identifies areas that require urgent attention or longer-term treatment.

7.5.4 Gather, catalogue, and distribute the applicable laws first.

Reach out to legal practitioners, ministries, the courts, the police, the prison services, law schools, academics, NGOs, and legal diaspora to collect applicable laws. This will involve multiple sources of law. Identify and collect core documents including the constitution, criminal code, civil code, commercial code, civil procedure code, administrative law, citizenship law, and property law. Also, look for regulations, acts, bylaws, internal procedures (e.g., police procedures), and laws and decrees regulating the customary justice system or parallel justice systems (e.g., rebel laws). Catalogue the laws gathered and translate and share them among host nation and international colleagues.

7.5.5 Conduct a comprehensive analysis of the applicable law.

The laws gathered need to be analyzed to ascertain compliance with international human rights law, criminal law, civil law, and commercial law (e.g., treaties on organized crime; drug trafficking; the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child); to assess how religion impacts the law; and to understand what problems are not addressed in the laws. One body or organization should coordinate this analysis. Have a mixed team of academics and practitioners, legal and nonlegal, who can contextualize the law as it relates to the host nation. The analysis should be carried out by both host nation and international actors, and the team should consult widely within and outside the justice system. Start the assessment early; a full assessment can take up to one or two years.

One or two years - get real. Michigan did this in the 1960s - and was working out the kinks into the 1970s. That was under optimal conditions. I have complete agreement that this is how to do it. I also doubt it will be done.

Exactly how these "international actors" get involved - and how involved they get - are questions not answered in what I've quoted above.

Regards

Mike

[Surferbeetle]

I've kicked around in my head the idea of writing up "Civil Affairs for Knuckle-dragging Neanderthals" (among whom I place myself in answer to the question "Who am I ?" ).

You are not alone in this...

Idealized fictional books such as A Bell for Adano are interesting, but not a real world case study of CA work.

Instead, I wonder about either finding or chasing and assembling some case studies chronicling the deliverables of real world CA-Bubba types (and not limited to just US troopies) that were key team members of succesful reconstruction experiences: W. Edwards Deming comes to mind. This leads me to a sacralegious question; which came first, the OODA loop or the Deming Wheel/PDCA Cycle-Plan, Do, Check and Action?

The idea would be to look back at the origins and development of Civil Affairs in the context of its doctrine before the Kennedy Administration and Vietnam (when "COIN" became ...)

Excellent work on the references, Mike. I once held an original copy of the 1947 FM 27-5 Civil Affairs - Military Government...it easily fit into a soldiers pocket...perhaps because the approach taken was more of a performance based work specification than a prescriptive work specification....a focus on outcomes or results rather than process.

Additional Skill Identifiers, a functional and timeless concept that i hope the Army will use again, one day, for it's CA forces. Doing so will help us get back to recruiting more 'Deming types'.

Big Picture, I am wondering out loud about how to quantify the differences between public sector and private sector 'nation building' solutions...sustainable economies vs functional economics approaches over in the EUCOM Econ Thread...

[jmm99]

At least, that's the way it should be.

Unfortunately, I've never held the real 1940 FM 27-5 Military Government in my hand. I've had to "make do" with the online version. That little book is really basic with its "Performance Based Specifications" (24pp.) vs. "Design Specifications" (30pp.). That's the doctrine - with "skill identifiers".

You really do have to keep Neanderthal manuals simple - think the Pierre of the North comic, where the final frame shows the polarbears halfway into the igloo and Pierre saying "I really 'ate zis place !" ("hate" in French-Canucklish pron. "ate" - " 'elp, 'elp, zem polarbears 'ate me."). Beware of zem very clever and very hungry polarbears.

OODA - without looking it up (and I haven't to write this post): Is it Observe-Orient or Orient-Observe ? So, OODA is of no value to me because of my own deficiencies in acronymics.

For what it's worth, my built-in loop is Data-Analyze-Decide-Act. That's worked in the courtroom where you have to DADA (or DODO) in the interval between two sentences. E.g., the opposing lawyer's question and the witness' answer. It also works in less time-stressed situations (trial prep, or still longer case prep), where you can use different decision-making trees, and more sophisticated use of tempo.

Feel free to develop Deming-type case studies and Engineering Economy models. You will lose me in the first few paragraphs. My time at Michigan Tech was in other areas (with some, I've stayed Scientific American current over 45 years).

Regards

Mike

[Polarbear1605]

Like-new hardcover of Son Thang (just under $8 inc. shipping) showed up in my mailbox this noon. It was the property of the Kiel, Wisc. Public Library (no one took it out); and sold by a used book-dealer from near Green Bay. A fluke in parcel post delivery - their loss, my gain.

Bottom line: Gary Solis would be a formidable opponent (smart guy and good writer).

OK: I followed your tactical advice - books ordered (under $10 inc. shipping)

I know...I love that used book function! For an old book worm it is just GREAT!

Something hits me in the gut wrong about a spCM (Herrod's "delayed transition" from 3/3 to 1/7) for a guy who twice went out for a wounded Marine (the same guy, who happened to be Ollie North) and is up for a Silver Star.

Regards

Mike

Yep, I am sure if confronting Gray in a legal boxing match, he would leave marks. Gray also has another book out “The Law of Armed Conflict”… trying to read through it for some time now…I believe it is Mr. Solis’s text book…I keep putting it down to read more fun stuff.

To me, Herrod’s SPCM for UA is also surprising but does reflect his command situation. Good combat leaders work real hard on unit cohesion and Ollie North is one great combat leader regardless of his political issues late in his career. Combat firefights/battles are also tremendous cohesion builders. If you suddenly lose your leader and your unit with a transfer to a different division the “system” support structures have been kick out from underneath you and a sudden UA problem should not be unexpected (and does need to be addressed). Unit SOPs normally set an unofficial standard that the Company CO gets the first NJP offense, the Bn CO gets the second, third offense gets the super NJP option of a summary court and that is the normal route to a SPCM.

OODA Loops and Deming - Boyd theory was never sold as something new…at least not by its author. It was an historical analysis of sorting out and picking what works and then an assembly of those piece parts. Boyd Theory is much richer than just OODA loops. I don’t remember any references to Deming but the list is extensive. The Boyd briefs (slides) are available on line and the USMC Quantico Library now has a copy of COL Boyd delivering the audio portion of those briefs (12 hrs+). If you ever want to spend the time, let me know and I will let you know how to get your very own set Boyd CDs. I personally feel you have to have both (the slides and the audio) to understand Boyd.

Read the reference…it is very good and I am especially impressed by the reference list. Of course, being the dedicated fighter of windmills (besides being a knuckle dragger) I have to state my criticism.
The doc seems to rely heavily on UN and NATO references and that presents, in my opinion, a considerable flaw. I would sum up that flaw with the phase: “its fine, if you are dealing with the villages of Europe, but how does this work in a tribal content, specifically a Muslim tribal content?” In addition, I feel it is a tactical manual that ignores and glosses over some of the strategic realities. I mention that because I believe we are going to add Afghanistan to the now growing list of wars that we have won tactically but lost strategically.

The strategic issue is which ROL do you want to implement? Ours or theirs? Especially, when theirs is culturally very different from our ROL. Either way presents us with a dilemma. Their law, for example, requires that an adulteress woman is publically stoned. In the US, we always have an opposition party. If we attempt to implement a Muslim based ROL, the opposition party (and I am convinced it makes no difference which party is in the minority) will see this as an opportunity to garner power. Another example is President Bush was politically attack for using the LOW to fight the war on terrorist; Eric Holder is being attack for trying to use the ROL. States can legally execute their own citizens, so how will the US public handle the legal and public execution of a convicted adulteress by stoning?
Boyd Strategic Theory states that whatever works for you must also work against the enemy (Boyd’s cheng/chi theme). Clausewitz calls for a balance in the trinity of war …people, government, and the Army. “The theory that ignores any one of them or seeks to fix an arbitrary relationship between them would conflict with reality to such an extent that for this reason alone it would be totally useless.”

Of course, my favor windmill that cocks my barber’s bowl sideways, is the separation of the ROL and the LOW. The manual does not address it and therefore, I my mind, it is flawed. It is still a good manual as long as you understand the flaws. I understand that the legal folks view them as the same thing. But as a knuckle dragger, I do not see how I can operate under both; Inter arma silent leges. I still feel that there has to be a coordination point between the two as you transition from the LOW to the ROL. If you mix them, at some point there is going to a sorting out…and the sorting always means someone is going to lose and any loss, either way, means you undermine your own strategy. I recently finished “In the Shadow of Wounded Knee” by Roger Silvestro…and like Haditha, I think it is a great example of mixing them and then sorting it out with winners and lossers demonstrating a flawed strategy.

[jmm99]

I'm waiting for the 2010 “The Law of Armed Conflict" to get well below $50 used (presently about $65 w/ shipping). My reason is that so many changes have been occuring since 2008, both in US and Int. Law, that I'd hestitate to believe a 2010 book, without checking original sources since then. Since what I post usually are or are referenced to original sources, I didn't see where spending ~$100 (list price) was worth it.

As to the S&R Guide, I had the same basic problem as you did. That is, as evidenced by many (but not all) sections - "Western" or "international" rules are "superior"; and should be the standards against which legal assessments and "reforms" are measured.

Here, on the other hand, are several more sections which are more positive and "local" in focus:

7.5.7 Approach: Short-Term Law Reform

Consider whether short-term law reform is necessary. Short-term measures may be necessary to address deficiencies in the law that will impact stability and to address laws that are inconsistent with human rights conventions and standards. While criminal justice laws usually receive the most attention, the majority of disputes and procedural issues that arise - and directly affect the population - initially involve nonviolent offenses that may escalate into violence if victims have no legal recourse. Short-term reform should also address gaps in civil and commercial code and procedure. In this context, short term refers to the first two years after the cessation of hostilities. See Gap/Challenge: Section 7.11.4, Non-criminal justice assistance.

Yes; although to be realistic, one could substitute up to 10 years for "short term law reform"; and 10-30 years for "long term law reform". Even under optimal conditions, a lot of "working out the kinks" is needed.

A smart country lawyer (not me - wasn't one then) commented that the (now defunct) Justice of the Peace system (minor criminal cases and small claims civil cases) was the most important part of the judicial system, because that was where most people contacted the judicial system.

7.11.4 Prioritization of noncriminal justice assistance.

Criminal justice is often prioritized as the primary focus for rule of law assistance. Other important areas of potential assistance, such as property rights or public administration reform, have not been addressed.
Property issues and displacement can affect a large percentage of the population. More people may deal with the state’s public administration than with the criminal justice system on matters such as civil registration and health services. Research and the development of best practices in these fields needs to be developed.

7.11.5 Engagement with non-state or religious justice systems.

While it is agreed that there needs to be engagement with the non-state justice system to promote the rule of law, the international community does not fully understand these systems, how they operate, what to do with regard to human rights issues, and even less so, what assistance measures promote the rule of law. Empirical, comparative research is needed. In addition, research is needed to look at how to deal with non-state, religious systems of justice and how to integrate religious considerations into rule of law assistance overall.

Yes. The term "law", if one looks at it more broadly and with respect to convincing the decision-maker, includes not only written law but also a package: "law" in the heads of the decision-maker and community; expectations of "legal" outcomes; societal norms, values and needs; and a lot more.

7.5.9 Undertake discreet legal reform in the short-term if necessary.

Whether law reform should be conducted in the short term will depend on the context. Reforms may be deferred because changes to the law may make little difference. New laws that have been drafted in haste may not have been researched sufficiently, or political will for reform may be lacking. In either case, work with what is there and find creative legal solutions to filling gaps in the law or addressing deficient provisions of law (e.g., where there is no criminal offense for trafficking, use tax evasion provisions). Short-term reforms should involve discreet changes to existing laws rather than a long-term overhaul. Address urgent problems such as laws that grossly undermine human rights or inadequate laws for pretrial detention. In the economic arena, providing for predictable contract enforcement, including oral and informal contracts, is critical. Dealing with real and personal property claims, developing mechanisms to resolve property (especially land, livestock, and commercial) disputes, and determining inheritance rights will always be an urgent need. Be aware of the impact that new laws or legal provisions will have on other laws and justice institutions.

Generally, this is fine. You can see UNese at work in defining "urgent problems" as being human rights and pretrial detention. Local priorities may be quite different.

The bottom line is that Guiding Principles for Stabilization and Reconstruction is well worth reading - and a great amount of work went into it. But, it is an animal created by a committee; and like all manuals should not be accepted as "gospel". As the title suggests, it is for "guidance".

Regards

Mike

[jmm99]

I've been directed to “In the Shadow of Wounded Knee” by Roger Silvestro, more than once. OK: for under $5, I'll bite.

Wounded Knee gets more complex since words such as "massacre" and "atrocities" tend to abound. The two other killings focused on by him were non-military.

We have a better (and more recent) example, which did not involve massacres or atrocities by anyone. Besides, it's relatively "local" to me and we "local indigenes" shamelessly self-promote. Moreover, the key reading materials for the test are free.

I speak of Sugar Point, 5 Oct 1898 (post by me here, without discussion of RoL and LoW, but with added links). KIA: 1 officer and 5 troopers (3rd Inf. Regt.) + 1 Indian policeman (caught in crossfire). Indian combatant casualties - none. As they say: "Got some".

The references: The last Indian uprising in the United States; and The Battle of Sugar Point : a re-examination.

The questions:

1. Technically, what law or laws was or were formally applied from the gitgo up to and including Pres. McKinley ?

2. In reality, what law or laws was or were really (not formally) applied by Pres. McKinley to settle the matter ?

Regards

Mike

[jmm99]

And anyone else interested.

I do have a bias in favor of Ojibwe (surprise). Part of that is explained by a 1971 MI Supreme Court decision, now going on age 41, People v Jondreau, a test case brought on behalf of a lot of Ojibwe. It was a total win, which is nice to reflect on - when we were young, etc.

That case is sometimes cited today - e.g., Robert O. Porter, Tribal Disobedience (2005), p.12:

The first case in Michigan was brought in 1965, when William Jondreau, a member of L’Anse Chippewa band, argued that he was not subject to state laws by virtue of the Treaty of September 30, 1854. Jondreau won the case in the Michigan Supreme Court in April 1971 [JMM: 6 years later !], thus opening the door for other cases to follow. While not all of the cases brought were successful, eventually, the right of Indians to fish in waters outside of their territory was upheld by the state and federal courts.

An interesting draft paper.

People v Jondreau attached (12 pages, includes 2 pages by me explaining the strategy and tactics of the Supreme Court appeal)

Regards

Mike

BTW: for some reason, my connection to my ISP is OK, but my speed to download other webpages is less than 20% of normal. Solar flares or Anonymous ?