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Thread: Rule of Law in Iraq & Afghanistan

  1. #41
    Council Member Polarbear1605's Avatar
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    Default Never argue over shiny objects with the bear!

    Hey JMM…I once heard a story or fable about catching a monkey… you first cut a small hole in a coconut shell…just big enough to allow the monkey to slip his hand into the shell. Then stake out or tie down the shell and put something shiny and bright into the shell. When the monkey reaches in and grabs the shiny object he makes a fist that prevents him from getting his hand out of the shell …because the monkey refuses to let go of the bright shiny object, he gets caught.

    Hello LawVol, first, thanks for your comments and keeping the discussion going on this tread. Despite the discussion being a bit ignored, I think it is of vital importance and the fact we have gotten an US Air Force Kabul person involved makes my day. At this point, I know JMM is waiting for me to drop the other shoe…
    LawVol, I am a little surprised by your arguments and comments…most are sophomoric at best. For that reason, I am not going to address them all but just some of the gems. You seem to be talking in sound bits not based on doctrine but dogma. The only “feel good” dogma argument you seemed to have missed is “justice is blind”. You can read about the difference between doctrine and dogma here: http://warchronicle.com/DefendOurMar...ls_PartSix.htm

    The law of war (or law of armed conflict as it is sometimes called) doesn't tell you how to address a land dispute issue between two farmers.
    I agree, however, neither can a judge, a mayor, a lawyer or a policeman who is not there. Remember, within this thread, these are law arguments within the context of an insurgence war. A squad leader, a platoon leader, a company commander or a battalion commander can resolve the issue when it occurs in his assigned AOR when the Rule of Law does not exist because the Taliban has literally killed it off. In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.

    Yes, commanders need lawyers on their staff and as I mentioned, General Martin’s example of opening the Syrian border is a good positive example. Remember in the Syrian border example, a judge is not making the decisions, it is the military commander operating and exercising his military authority; the lawyers are in support.

    I am arguing you must start with the Laws of War and transition to the Rule of Law and both cannot exist together. When US Soldiers and Marines are collecting evident for judges you are mixing them. When you turn insurgents over to civil judges for insurgent activities, you are mixing them. When you mix them, you undermine your own counter insurgent strategy to your determent and to the benefit of the enemy. There must be a transition, and the question then becomes what is the transition point. I do argue that the transition point is when the troops are no longer needed because the local Rule of Law system can stand on its own. Until the troops are withdraw, you operate under marshal war.

    This is being done here, to some extent. There is a national security court system here that prosecutes those captured on the battlefield. These Afghans are tried in an Afghan court, on Afghan soil, by an Afghan prosecutor, while represented by an Afghan defense attorney, in a trial presided by a panel of Afghan judges. American attorneys do play an advisory role, but have no active role in the proceedings.
    If this is working so well let me ask this question: 1) how many Afghans, Taliban, and/or insurgents have been brought to trial for killing US service men and women? 2) Another question, if this is working so well why have Afghan casualties gone up significantly each year since and inclusive of 2008?
    While there are indeed differences of opinion among legal folks, an insurgent is invariably seen as a combatant (legal or otherwise). A spy is in a quite different category. The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants. A combatant is one who takes up arms; a non-combatant does not do so. A combatant that violates the laws of war, as do insurgents that use the tactic of terrorism, remains a combatant. Sure, Bush lawyers invented the term "illegal combatant," but this isn't found in the Geneva Conventions. A combatant that violates the laws of war loses his criminal immunity and can be tried for war crimes.
    Again, I agree. However see questions 1 and 2 above. DOD orders and directives are clear that any war crime committed by or against US military personal must be investigated and resolved. To bow those orders and directives to the Afghan rule of law while the troops are still fighting is unpardonable in my silly legal 101 opinion. (BTW thanks for the law 101 lecture but I got it a very long time ago.) By not applying the laws of war to the insurgents you are undermining your own strategy and efforts. Another question: How many spies have been prosecuted or are there none in Afghanistan?

    LawVol, you are offering up the bright shiny objects of a bad strategy that is short on merit. Recommend, like before, that you go back and read the MCSWM and then ask the question why it provides a guide for marshal law and ends with a chapter on “withdraw”. Your correct simplification is not easy but it is not an excuse not to try.
    Last edited by Polarbear1605; 04-27-2011 at 06:21 PM.

  2. #42
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    Default Whoa, Dobbins (that's more than one horse)..

    before you agree on this:

    The Geneva Conventions recognize only two categories of persons on the battlefield: combatants and non-combatants.
    Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, covers combatants and non-combatants (the latter being members of the armed forces who should not bear arms - ties in with GCs I and II).

    Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, covers civilians on the battlefield and in occupied territory.

    To them, you can add the participants, combatant and non-combatant, who engage in armed conflicts not of an international nature under Common Article 3 of all four GCs.

    -------------------
    And, yup, I heard that monkey story ... in which one of my great-gg....ggrandfathers played the main role - and suffered a horrible fate. But then he was a Marine officer and a French-Canadian.

    Regards

    Mike

  3. #43
    Council Member carl's Avatar
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    Quote Originally Posted by jmm99 View Post
    Hey John (and anyone else interested),

    You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

    What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

    Regards

    Mike
    Is this a legal question or a what would you do it you were there question? I am a little confused.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  4. #44
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    Default If I say too much, I'd give away the answer(s) ...



    Something of a law school exam question; but it also includes tactical issues since choice of tactics will affect choice of law (and vice versa). And, also, includes choice of strategy and policy since those factors enter into ROEs and RUFs.

    The "what would you do if you were there" part of the question is left wide open because I'm not about to write military hypotheticals. The basic situation has been described and addressed in a number of SWC threads - some involving situations which were handled by Os and EMs who posted here.

    The hypo is simple, but add the alternatives and you end up covering both Laws of War and Rule of Law (not necessarily applicable at the same time). In short, a complete answer requires the whole ball of wax.

    Regards

    Mike

  5. #45
    Council Member carl's Avatar
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    Mike:

    All right, I'll take a stab at it with the certain knowledge that I will make a complete fool of myself.

    What I would do is a combination of things that I read in Free Range International and Treasure of Sierra Madre. The best outcome would be the capture of the all subjects. The minimum outcome is none of them get away.

    So with that in mind. Surround the compound with the force available and with additional forces if available. Arrange for some kind of aerial backup if available. Wait until daylight then walk up to the front gate and knock. Inform the headman that you know that 6 subjects, whom you name, are in there. You are here to do your duty as a soldier of your country and collect them. You will address the headman by his name and refer to the honorable dealings you have had with him before and tell him you would prefer that he tell the subjects to act like men and come out to surrender or fight without endangering him or his. They have unfairly placed him in a bad position and it would be better if they came out. You understand if he feels honor bound to shield them but if that is his decision request that he send out all the women and children since if it will come to a fight, it would be better that they not be involved. At this point you have an Apache or two clatter overhead noisily. Then you have him make his decision. Let the neighbors know what is going on.

    When the thing is done, one way or the other, hang around and tell the neighbors again what happened and why it happened the way it did. If it is too dangerous to walk up to the front gate, use a cell phone or just yell.

    Let my deconstruction begin.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  6. #46
    Council Member LawVol's Avatar
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    Default simplicity

    Given the borderline ad hominem attack, I see now that my response offended you. This was certainly not my intent. My “legal 101 lecture” was not intended as such, but merely a means of establishing the foundation from which I speak. It prevents arguments over how “is” should be defined ala Bill Clinton. That being said, it certainly seems as if you relish an excuse to “drop the other shoe.” I, on the other hand, am simply looking for intellectual debate and, possibly, an opportunity to broaden my knowledge base. While we may certainly disagree, I would hope that we do so as gentlemen since vitriolic responses are beneath us. While I believe that my initial responses are quite consistent with current COIN doctrine, I have elaborated below in an effort to address the concerns you perceived. All citations are to FM 3-24.

    There can be no dividing line between the law of war and rule of law in a COIN environment. The kinetic part of COIN is not conducted in a vacuum and the population does not remain static while the military conducts its operations. The population affects and is effected by military operations. Thus, both the law of war and rule of law must be simultaneously applied.

    Your desire to bifurcate a COIN environment into that controlled by the law of war and that controlled by rule of law is directly contrary to the doctrine you suggest I ignored. FM 3-24 (I’ll use this one since it is currently in effect, although I do like the MCSWM too) indicates that COIN is a combination of offensive, defensive and stability operations with the proportion of effort devoted to each changing over time depending on the situation on the ground (1-106). In Afghanistan, the effort is, at best, equally divided between offensive and stability operations – I would argue, however, that the effort probably tilts in favor of stability given our transition strategy. This is why there cannot be a solid division between Law of War and Rule of Law as you suggest. For example, in Helmand and Kunar provinces (arguably the most kinetically active in the country right now) both the military and the State Department have rule of law advisors in place. Thus, offensive operations (to which the law of war applies) are occurring simultaneously with rule of law efforts.

    This strategy is necessary because our current COIN doctrine establishes its necessity. The population within a COIN environment is typically distinguishable as a small minority in favor of the insurgents, a small minority in favor of the government, and the bulk ambivalent or waiting to see who wins before casting their lot (1-108). With this target population (i.e. the ambivalent), governmental legitimacy is paramount (1-113 to 1-120). Indeed, “a COIN effort cannot achieve lasting success without the [host nation] government achieving legitimacy” (1-120). A major factor in achieving this legitimacy is the rule of law (1-119). Thus, we learn (according to the doctrine you mention) that offensive operations (i.e. law of war) are simply not enough; the rule of law must be implemented.

    “Establishing the rule of law is a key goal and end state in COIN” (D-38). Thus, offensive operations without rule of law are counterproductive to the COIN effort. This doctrine doesn’t indicate that rule of law is a goal after COIN, but rather in or during COIN. Again, there is no separation. Our doctrine emphasizes this by stating: “counterinsurgents may need to undertake a significant role in the reconstruction of the HN judicial system in order to establish legal procedures and systems to deal with captured insurgents and common criminals.” Thus, while the law of war does indeed play a role in targeting insurgents, the rule of law is also applicable during COIN.

    In that situation all you got is the Laws of War or (and you use the politically incorrect word) marshal law. To assume our military leaders at all levels cannot resolve these types of issues in war zone smacks of distrust.
    Here, I think you put words in my mouth or seek to assign a belief to me that I simply do not hold. While most military leaders are indeed quite capable of handling any issue that arises, I believe it to be at cross-purposes when the US military attempts to implement host nation law. After all, our doctrine states that host nation legitimacy is the goal. How can that goal be achieved if Americans are implementing the law? How can a target population possibly view the local government as legitimate if the US military implements its law?

    On a final note, I don’t believe I ever used the term martial law as I do not see its applicability to Afghanistan (at least from the perspective of US application and maintenance of martial law). According to the MCSWM (13-3 (b) and (c)), martial law is a form of military rule that must be declared by Congress or the President. This has not been done for reasons mentioned in the next paragraph of the MCSWM. The distinction between the two are important because the emphasis is on real government versus temporary authority in the absence of the real government. In Afghanistan, as you know, there is a real government that exercises sovereignty. While this governmental authority is tenuous in certain provinces, it nonetheless exists. Thus, martial law must be declared by it and not the US government. Furthermore, given our COIN doctrine, it must be exercised by Afghans and not Americans.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  7. #47
    Council Member Polarbear1605's Avatar
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    Default I love scenario based questions! They remind me of “WHAT NOW LT” films.

    Hey John (and anyone else interested),

    You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

    What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

    Regards

    Mike
    __________________
    JMM
    Interesting question, I am going to take a different approach here looking at different techniques (or tactics) required (probably too strong of a word here…hmmm… how about taught vs required) in both the Laws of War and the Rule of Law. If you are operating under the Laws of War, the squad leader should immediately order his grenadiers to start pumping 40mm 203 rounds through the windows while his AR men put a steady stream of suppressive fire into the exterior doors. As suppressive fires are executed, the squad leader leads a 4 to 5 man stack to the best entry point and proceeds to clear the house with grenades and small arms fire. After the house is cleared, he sorts the bodies, secures POWs, treats the wounded, and hopefully, at least one AQ is captured and/or wounded and available for intelligence interrogation and gathering. As a Law of War scenario everything I just described is legal and they stay legal even if you add the collateral damage of a dead mother and child to the causality list. BTW because of the mother and child’s presence, the AQ survivor should also be charge with the war crime of using civilians as shields.
    In the Rule of Law approach the Afghan national police surround the house. The police Lt or sgt pulls out the bullhorn and announces the house is surrounded and states the AQ should come out with their hands in the air to allow their arrest. If the AQ members refuse and announce they have a mother and child as hostage, the Afghan police begin captive hostage negotiations. (Hopefully, there is not another AQ unit in the area that can attack and wipe out the police while negotiations are ongoing.) When they surrender (big assumption here considering AQ is an organization full of suicide bombers and everyone of them believes that martyrs go to heaven) the chief policeman starts to collect evidence to support his case against the members of the AQ for charges of….hmmm…charges??? What do we charge these AQ folks with?? What have they done that is illegal…what laws have they broken…? (Maybe illegal immigration?? How many cases have been prosecuted in Afghan for illegal immigration?) And Oh!...the Afghan policeman has 96 hours to build this case before all detainees must be released. Oops sorry, that is our NATO rule not the Afghan police rule.

    Now according to LawVol, the correct answer is c. Rule of Law and Laws of War:
    Thus, both the law of war and rule of law must be simultaneously applied.
    after all, that’s the doctrine (remember you said it brother, and I am not putting words in your mouth this time). I am very excited about reading LawVol's solution to this JMM scenario.

    Carl in many ways you have the correct approach and answer. However the risk is very high, (I know, no guts no glory!) and I think your assumption is that in this scenario your gut (or that feeling for situations warriors can and do develop in war) is telling you that you can pull this off. But what if your feelings are telling you these AQ guys will go down taking as many Americans as they can with them. The scenario says these are confirmed AQ, not Taliban, not pilgrims, and not visiting relatives. Remember, no one knocked on Zarqawi’s door in Iraq. We dropped two 500 lb bombs on the house he was in and caused multiple collateral deaths (including a woman) and guess what…under the Laws of War it was legal.

    One more step: Let’s assume the Carl approach, but when the chief policeman knocks on the door mister AQ guy answers the door, seizes the initiative, and puts a pistol to the knocker’s forehead and blows out his brains. Will the remaining Afghan policemen apply their Rule of Law techniques or will they turn to the squad leader and say; “Clear that house”? At that point the squad leader needs to make a decision of which applies, the Rule of Law or the Laws of War. It is a decision of either or…not both.

    Inter arma silent leges: in time of war the law is silent.

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    Default Is pugil practice nearly over ....

    or should I plan on sitting back and waiting for a while ?

    We all know this (html & pdf):

    Modern crisis responses are exceedingly complex endeavors. In Bosnia, Haiti, and Somalia the unique challenges of military operations other-than-war (MOOTW) were combined with the disparate challenges of mid-intensity conflict. The Corps has described such amorphous conflicts as -- the three block war -- contingencies in which Marines may be confronted by the entire spectrum of tactical challenges in the span of a few hours and within the space of three contiguous city blocks.
    So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?

    Obviously, if we look at mission 1 and mission 2 as a whole, RoL and LoW are governing at the same time, but as to separate missions.

    I can't think of an example where mission 3 (let's posit it has a single legal issue) could be governed by both RoL and LoW at the same time, unless RoL and LoW are exactly the same. In that limiting case, one has a distinction without a difference.

    If RoL and LoW are different and conflicting, mission 3 would become a contradiction in terms.

    Yeh, you can have a country with RoL in parts and LoW in other parts (USA during the Civil War as an example); but, both cannot contradict on the same issue.

    Regards

    Mike

    PS: Not really -

    Inter arma silent leges: in time of war the law is silent.
    In time of war, the law allows military discretion - e.g., can a surrender be accepted reasonably and safely in the combatant's judgment. The law (at least to the US Naval Services) (is) (was) quite explicit on that one. There is a lot of difference between being silent and cutting a lot of slack.
    Last edited by jmm99; 04-28-2011 at 07:26 PM.

  9. #49
    Council Member carl's Avatar
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    Polar Bear:

    Given what I've read here and what I've learned about clearing houses in extremely benign circumstances, there is no way that compound would be taken by people with small arms. That is what the Apaches are for. All the palaver is to avoid using them and to avoid women and children being hurt if possible. Talking to the neighbors is to make sure everybody knows what is going on and what the alternatives are. Gas would be a great tool in this case but I was told once our guys are not permitted to use it.

    Innocents getting killed, I've read, should be looked upon as being as bad as our guys getting killed which is the reason for the palaver. Bending over backwards is justified but if they don't come out, the Apaches would demolish the place.

    I apologize to all those who have been there and done that as I most certainly have not, but I am only responding to the problem posed. Please forgive me if I sound foolish.

    Mike:

    I can't speak to the law of the situation you set up. I can only I outline what I think would be sensible.
    Last edited by carl; 04-29-2011 at 04:40 AM.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  10. #50
    Council Member LawVol's Avatar
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    So, following this construct and positing a separate mission in each block, we could have mission 1 governed by RoL, mission 2 governed by LoW; but can we have mission 3 governed by both RoL and LoW at the same time ?
    In short, yes. PolarBear presents compelling examples of mission 1 and mission 2 (I'll address these is a moment), but predictably avoids answering missions 3 since he does not believe it possible to combine LoW and RoL. Fair enough, but I disagree.

    I can only assume from Mike's scenario that the individuals referred to are unarmed since weapons are not mentioned and the tenor of the scenario does not indicate the presence of weapons. This, IMO, fundamentally changes the nature of the problem and demonstrates how LoW and RoL are blended. Notice the scenario says intel indicates the individuals are AQ. Not to disparage the fine abilities of our intel community, but this is not the "beyond reasonable doubt" standard used in criminal court, but more akin to a "reasonable suspicion" used by police in the field. Just as cops can take limited action based on "reasonable suspicion" so to can troops take limited action based on intel. In the present case, both LoW and ROE would counsel against the action suggested by PolarBear. A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority (e.g. Abu Ghraib, comparisons to "kill teams," etc.). But this does not mean that action cannot be taken (lest you think I'd give these guys a pass).

    Given the intel, investigation (I do not use this term in a law enforcement capacity, but simply mean check it out) is indeed permitted. Moreover, in conducting this investigation, troops are permitted to take appropriate safety measures as indicated by their ROE and are subject to LoW.* Assuming that, upon approach, these individuals take up arms, then return fire, etc. is authorized. But, assuming they have no weapons, they are simply taken into custody, interrogated, and turned over to the Afghan national security justice system. This means they get sent to the DFIB, a detainee review board is conducted, and, ultimately, they are tried for crimes. Carl's response to the scenario is akin to what I envision here.

    Now, the Gitmo scenario enters into play, but I must admit of limited knowledge here. I know what would have happened in the past, but am unclear how the Obama Administration is currently handling this. I think Obama has said no new prisoners are to be sent there, but I'm unsure. In the past, the plan was to send them to Gitmo and, ultimately, try them in a military tribunal, which because of recent Supreme Court decisions is a blend of LoW and US Constitution law (i.e. RoL).

    There is a possibility that LoW is being mistaken for something it is not in this conversation. LoW establishes limitations on combatant conduct in the field in an effort to protect civilians and limit the destructiveness of war. Of course, one can argue whether this is really even possible or desirable, but it is what it is. Again, assuming no weapons, there is no authorization to engage as no concrete threat exists.

    Now, assume weapons are present (this way I won't be accused of parsing facts to support my argument). IMO, nothing really changes. Even though the individuals are entering a residential compound and, say, not actively engaging our forces, they are still declared hostile forces and can be engaged (this is actually an ROE issue and ROE may have changed since I last worked with it). If the individuals fight back and are killed, so be it. However, if one surrenders, he must be taken into custody and processed as I indicated above.

    I view LoW as a subset of RoL. The essence of RoL is that the law applies to all, especially the government. Through adherence to LoW by both US and GIROA forces, we demonstrate and strengthen RoL. Thus, I don't see the two as conflicting. There may also be a misunderstanding of RoL and criminal law as applied by law enforcement. These are too neither synonymous nor conflicting. Like LoW, criminal law, and its procedural aspects, are a subset of RoL. RoL is not limited to simply engaging in a criminal investigation (although a properly conducted criminal investigation and trial is indeed evidence of RoL); RoL is much broader.

    Inter arma silent leges: in time of war the law is silent
    A final note: If this statement were true, then LoW would remain silent as well. You have argued that law (i.e. LoW) not only refrains from remaining silent, but that it actually controls. Thus, your conclusion is not supported by your premises. Mike has it right that law is "relaxed." I only point this out because reliance on phrases such as this could pose issues for our people in the field and I see it as part of my job to protect them through accurate explanation of law.

    *I purposely avoid describing any tactics involved in conducting the investigation and/or "clearing" the house as this is outside my lane and one who gets too far outside his lane often does nothing but demonstrate ignorance on the topic at hand. Although I do have some familiarity in this area, I prefer to leave this to the experts here.
    Last edited by LawVol; 04-29-2011 at 06:00 AM. Reason: typo
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  11. #51
    Council Member carl's Avatar
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    John:

    I assumed the subjects were seen to be armed. I should have specified that.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

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    Default A follow-up

    on Da Scenario:

    You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.
    ---------------------------------
    Some "basic” questions

    I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

    - Where am I ?

    Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

    - Who am I ?

    Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

    - What am I doing here ?

    “FID”, “COIN”, “LE”, “DA”, etc., etc.

    - Why are all of us here ?

    That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).

    -------------------------------------------
    Some “legal” stuff (don't need a law degree to find the answers)

    What Geneva Conventions & Protocols have been accepted by Astan, Pstan and US ?

    Different for NATO and ISAF "coalition partners" ?

    What SOFAs (formal and informal) exist v-a-v Astan-US, Pstan-US, Astan-Pstan ?

    Different for NATO and ISAF "coalition partners" ?

    Does Astan recognize the existence of an “armed conflict” in Astan - and its parameters ?

    Same question for each of the other parties named above - and then repeat for Pstan ?

    What Astan and Pstan criminal law (if any) is applicable to persons who are “part of” AQ ?

    What implications result from a person being “part of” AQ under current US law ?

    What is the proof standard under current US law to find that a person is “part of” AQ - "beyond reasonable doubt", "reasonable suspicion" or something else ?

    When under the Laws of War (LOAC, IHL, CIHL) may an unarmed person be knowingly and intentionally targeted and killed ?

    -----------------------------------------
    The comments assuming or not assuming an “armed” group within the compound are interesting. The scenario intentionally did not include openly carried arms - but it did not exclude concealed or cached arms either.

    Unfortunately, we can’t use ROEs, RUFs, tactical directives, etc., with any accuracy (one issue is classification; another is different treatment of HVTs and even more classification).

    Regards

    Mike
    Last edited by jmm99; 04-29-2011 at 05:07 PM.

  13. #53
    Council Member Polarbear1605's Avatar
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    Default I am beginning to like you lawyer guys!

    Quote Originally Posted by jmm99 View Post
    Is pugil practice nearly over ....
    or should I plan on sitting back and waiting for a while ?
    OK …I just felt my choke chain jerk (kindly)…the good news is no one yelled the word “heal” at me.
    In the augments above both General Martins and LawVol state and lament (the lament word is not intended for LawVol) the complexity of establishing the Rule of Law in an insurgency. I agree. It is very complex. In fact, that complexity is costing us time we can ill afford. No matter where you are in establishing the Rule of Law at some point in the near future someone is going to declare victory and everyone goes home. I am not saying that we should not move Afghanistan to the Rule of Law…that is a good strategic requirement for a Counter Insurgence War, however, it will not win the war for you (at least in the amount of time we have left). Implementing the Rule of Law is a noble and honorable cause. I understand Afghanistan is unique and a third world Tribal County …but your running out of time…we are going to have to do something different if we are going to be successful.

    I am saying, if it is complex; then simplify. In my mind, the Laws of War are as simply as you can get (yes, I am not a lawyer and personally , I think I deserve a medal for coming into this discussion with all you lawyers). In my opinion, the LOW and ROL cannot exist together on the battlefield because not only are they based on different principles but also different decisions makers play their roles very differently.

    The ROL requires an extensive system…here in the states we have volumes of law books and history, policeman, detectives, lawyers, prosecutors, judges, CSI’s, experts, the list is all most endless. As you build that system in Afghanistan, (whatever it will look like, as long as it works) take the complexity of the firefights and war out of the building phase. You cannot have first term enlisted Soldiers or Marines trying to do the job expected of seasoned police detectives. You are scheduling the Soldiers and Marines to fail. In combat, (and I mean eye ball to eye ball combat) the only legal apparatus in effect that protects our Soldiers and Marines is the Laws of War. I have never seen an OPORD spell out the ROL in war or peace time for that matter. The ROL is not your main effort, elimination of the insurgents is. The best way to eliminate the insurgents is to let the Soldiers and Marines fight the war under the LOW, like they always have.

    LawVol argues that both the LOW and the ROL apply in the Afghan counter insurgency war. That statement works fine at the “bright shiny” strategic level but it adds a complexity at the tactical level that, in my opinion, undermines the counter insurgence strategy. General Martins, in his speech, gives us another example of this complexity:
    ” Fourth observation: having competent and deployable legal support, much of it trained in halls such as these, is not enough. I grow concerned when I hear of an Italian prosecutor filing charges against a U.S. soldier who followed his rules of engagement and tragically shot and killed an Italian agent during the agent’s rescue of an Italian journalist. Investigation established that the agent had failed to communicate his plan to coalition forces or comply with the soldier’s instructions; wisely, the Italian court dismissed the case. I grow concerned by suggestions that soldiers during armed conflict should be held to the same standards of collecting evidence, establishing chains of custody, and giving rights warnings to which policemen are held in American cities and towns.”

    I would submit that this is why the doctrine that both the LOW and the ROL existing together is flawed. If they operate together, after it was determined that the soldier followed his ROE (again ROEs are based on the LOW), then the Italian prosecutor would be correct in charging the soldier with murder under the ROL. And why not, if the charge was murder (and that is an assumption on my part) the Italian prosecutor had the two basic ROL elements of proof for murder; intent and a body. Someone had to make a call here. I am hoping it was a commander who stated that the ROE (LOW) were followed and therefore, we will not proceed with a ROL murder trial (and bless the lawyer that sorted that one out with the Italians).

    If you look at the transition of the LOW to the ROL, and assume it is a time line. You can start anywhere on the line based on the situation in a village, a province, and or a city. If there are no insurgents in a village, Great!...establish control with the troops under the LOW (do not tie their hands with the complexity of the ROL) , establish the mayor, the judge and the police and when they are ready, declare they are now operating under the ROL and withdraw the troops to the next village. Personally, I feel that is a tremendous incentive for the village to cooperate with the troops and their leaders to move to the ROL and that supports the counter insurgence strategy.

    At the beginning of the Civil War President Lincoln suspended habeas corpus. He immediately recognized that something else was needed in order to successful prosecute the war. He ordered the creation of the Lieber code formally titled: “General Order 100: Instructions for the Government of Armies of the United States in the Field.” The Lieber Code is considered the first written Law of War. As the Union fought the war and occupied the southern states, the Lieber Code, the LOW at the time, was the law that controlled the war and the occupation. As insurgencies started to flared up, after the war in occupied territory, the military commanders effectively eliminated those insurgencies and then transition the occupied territory to the ROL. The Lieber Code would later be the basis of the Geneva Conventions LOW. General Order 100 was in effect for the Civil War, the American Indian Wars, the Spanish American War and the Philippine America War (an insurgence).

    LawVol stated: “A shoot first, ask questions later mentality can lead to war crimes and/or political circumstances not desired by the command authority”

    Disagree and agree. In all the combat cases that have embarrassed the US Military publically and politically in both Iraq and Afghanistan, none have anything to do with “shoot first and ask questions later”. I will make the argument that is because the LOW (military necessity, distinction, self-defense) authorizes the US Military to engage the enemy where and when we find them. In the Haditha case, a Marine rifle squad cleared two houses causing collateral damages (much like our “what now” scenario above). The first investigation found that the Marine squad followed their ROEs (WOL) and like our Italian example above, the same Marines were charged with the ROL charge of murder. Not because of any loyalty to the ROL but because the service chief did not like the political circumstances.

    In times of war, the “rule of law” is silent - just one last poke!
    Last edited by Polarbear1605; 04-29-2011 at 06:36 PM.

  14. #54
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    Default Ah Yes, a medal ....

    Perhaps, a Beneficiarius to pin on your pelt:



    in recognition of your devotion to Roman military law.

    Cheers,

    Mike

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    Council Member carl's Avatar
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    Quote Originally Posted by jmm99 View Post

    I’d suggest several questions that the “You” in the scenario might ask himself (or herself, that gender less likely):

    - Where am I ?

    Could be Astan; could be Pstan; could be a training exercise in Texas. Let’s keep the first two and toss Texas because it would get too complicated.

    - Who am I ?

    Could be military (not necessarily USMC or combat arms); could be a civilian (a modern, new and improved version of Robert Komer).

    - What am I doing here ?

    “FID”, “COIN”, “LE”, “DA”, etc., etc.

    - Why are all of us here ?

    That includes separate answers for “You”, the residents of the residential compound, the Marine squad, the ANP, and the six individuals (all “part of” AQ, as “confirmed” - not as “indicated” - by intelligence).
    Isn't most of this implicit in the original scenario?
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

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    Council Member LawVol's Avatar
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    because I'm headed out to one of the provinces shortly.

    First, I'll be candid and admit that I'm not completely sure we can bring the rul e of law (at least in the western sense) to Afghanistan. The desire for it just doesn't seem to be there. The feeling is more one of "Let me get what I can because the Americans are leaving in 2014." That being said, the mission is the mission and we do what we can to accomplish it. The COIN mission dictates that LoW and RoL apply simultaneously in that, as I've previously indicated, LoW in a subset of RoL. In other words, complying with LoW demonstrates some aspect of RoL.

    I think I'm beginning to understand where PolarBear is coming from; although I still disagree with his conclusion. I think he is disturbed by the over-legalization of the battlefield to the extent that it places lives in danger. For example, what would have happened if our sentry had withheld his fire in the Italian case and it was a bad guy. We learned that lesson in Beirut.

    If this is the foundation of your argument, I agree to an extent. However, that over-legalization emanates from overly restrictive ROE, not RoL. ROE is a political call, not a legal one. It becomes legal in the sense that it is an order subject to the UCMJ. In other words, to the extent that ROE jeopardizes American lives, blame politicians and commanders not lawyers. We don't make ROE. Also, I do agree (assuming that really is the basis for your position) that ROE is overly restrictive and could place our guys in dangers. That is why I emphasize the self-defense portion of ROE.

    In my own case, I always ask "can I articulate a rational reason for fearing for my safety?" If so, I'm good to go. I also support the position that any "close call" shooting should immediately require a defense attorney for the shooter and a 24 hour cooling off period before the shooter can be questioned. This eliminates adrenaline outbursts from the shooter that may or may not reflect reality. I think I may be in the minority on this though.

    If I'm completely off target here, I can reengage when I get back from down south.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

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    Quote Originally Posted by jmm99 View Post
    Hey John (and anyone else interested),

    You have a Marine squad, accompanied by a like number of Astan National Police. You are looking at a residential compound. You observed as you were arriving a half-dozen individuals entering the compound. Intelligence confirms the half-dozen individuals are all "part of" AQ.

    What "law" applies ? - Rule of Law; Laws of War; Rule of Law and Laws of War. Add any facts needed to explain the answers - I posit there may be alternatives.

    Regards

    Mike
    - Are the individuals part of a declared hostile force? (in 2007, in Iraq, our JAG told us that we could not conduct missions with the intent to "kill or capture" suspected members of AQI because they were no longer a "declared hostile force." Instead, we had to go with the intent of "capture," though we were free to kill in self-defense).
    - What is your mission?
    - What is the commander's intent?

    Also, how could rule of law "apply"? Isn't rule of a law a characterization of how a legal system is used, rather than a system that can be applied?

  18. #58
    Council Member Bob's World's Avatar
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    Insurgency is not complexity. It is actually quite simple. What makes insurgency appear complex is a range factors:

    1. It is an illegal challenge to government, and governments not want to accept much if any responsibility for such illegal challenges always look for causes and cures outside their own domain of responsibility.

    Why this makes things complex: If I lose my car keys inside my house, but insist on only looking outside my house for these keys, where I am sure someone else has hidden them I have created a complex, unsolvable problem that will vex me considerably.

    2. Western perspectives on COIN are derived from intervention operations in the affairs of others, initially as colonial powers, and then more recently to maintain Containment based control measures or simply in places where the residual disruptions of colonialism and containment are still strong. Such efforts typically:

    a. Ignore the effects of the intervening party on creating the conditions that give rise to the current insurgency.

    b. The intervening party tends to intervene because they believe their interests are best served through the certainty of sustaining the sitting government in power.

    c. The intervening party is by definition from some other land, people and culture.

    d. The intervening party is by definition on the side of the law, and the insurgent and his supporters are by definition outlaws.

    e. Experts tell us (over and over and over) that it is "complicated" or "complex"; and since I can't find my damn car keys anywhere, and I know I am "right" and because I know I am smart, my failure must be due to some overwhelming complexity.


    We need to step back from this planning assumption of "complexity." It has become a "fact" and frankly I believe that it is a position that was reasonably come to, but that lacks merit when one makes the effort to remove themselves from the biases associated with history and nature of such intervention operations.


    The law is very complex (I am still recovering from the mental abuse of law school). Justice, however is very simple. Even the smallest child appreciates instinctively when they have experienced either justice, or injustice. It is how one feels about how the rule of law is applied to them. While there are certainly variations shaped by personal opinion, understanding of the facts, culture, position, etc; these all fall within a fairly narrow band that we all instinctively understand.

    How to bring the rule of law to a place like Afghanistan is indeed a daunting challenge. It is both complex and complicated. It is also not required for effective COIN.

    What is required is to seek to bring perceptions of Justice to that segment of the populace that is the base of support (the bulk of that popular iceberg that floats beneath the surface of any such movement) for the insurgency (that glaring tip that protrudes disturbingly from the surface).

    We know as fact that this populace perceives that they receive greater justice from the Taliban application of the rule of law (a harsh, outdated form of Sharia held in great disdain by the West) than they do from GIRoA's application of the rule of law (a West-approved, modern, kinder, gentler form of law). Why is that??

    For one, it is certain. For another it is timely. For another it is available. Does anyone believe that it is easier or safer for a Taliban tribunal to travel to some village, hunted by the full strength and capacity of the ISAF coalition, to enforce the law than it is for a GIRoA tribunal protected by the same??

    No. What makes it complex and complicated is that we focus on the wrong things. We believe that we must first secure the village before we can bring justice to the village. We believe, in essence, that we must "destroy the village to save the village." That is some sad, misguided thinking that sounds wrong because it is wrong.

    No, we must bring justice to the village in order to be able to secure it. This means we must secure the justice system to allow it to exist and function in a hostile environment, just as the Taliban do. If the system proves itself to bring better law and greater justice under the law, then it will out-compete and prevail over the Taliban offering. Simple.

    How do we do this?

    1. Shift development efforts to building secure justice centers in key locations. These must not only house adequate office and court space, but also living space for the justice staff (think about our own bases there and the US Embassy in Kabul)

    2. Then we must shift security to prioritize securing these facilities and providing secure means for the populace to file their cases and to travel to the justice facilities.

    3. We must focus capacity building on training the staff, from the highest judge, to the lowest clerk, how how to perform their jobs. Not how to apply our law, they have their own.

    4. We must pay these brave citizens a wage that makes taking on such dangerous and essential duties worthwhile; and that also immunizes them from excessive corruption that could rob the legal system of justice. If a certain amount of corruption is part of local justice, then that from of corruption must be protected and allowed no matter how much it offends our modern sensibilities.

    5. Next, we must take this show on the road. There must be a trusted and regular circuit court system that brings justice to the people. This too must be secured for it is a high value target for any insurgent. The operations of such a circuit court system should be so important that one might assign, say the entire Stryker BDE in RC-South to the sole mission of supporting circuit court operations. (Realizing that this would take them from the mission of protecting the convoys necessary to support our massive bases and Clear-Hold-Build operations; but then these would become much smaller and have a lower priority under a new "Simple" approach.)

    6. Police are a critical part of such a justice operation. Prioritize police (who exist to promote justice) over the building of a national army (who exists to suppress the populace). They probably need to be recruited from across the land, employed locally, and organized in such a fashion as to owe their patronage to the level they operate, and not to Kabul.

    Insurgency is simple. Justice is simple. What appears to be "hard" is our stubborn clinging to the archaic biases of our colonial history of such interventions. We do not need to control the outcome, we merely need to be seen as the one who helped bring about a new, and better stability. Such a perception among the people will ensure our influence with whatever government ultimately emerges.

    And if that government commits itself to injustice as well? It too will soon fall prey to insurgency.
    Robert C. Jones
    Intellectus Supra Scientia
    (Understanding is more important than Knowledge)

    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

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    recovering from the mental abuse of law school
    best line . . . ever.

    Interesting ideas. It sounds very similar to BG Martins' "hub and spoke" model of bringing rule of law to Afghanistan (which seems to be an adaption of the ink blot strategy). Legal hubs are set up in the five main population centers. As these become viable, the concept is moved to smaller and smaller population centers and linked back to the larger centers. Rights now the focus is on establishing effective Provincial Justice Centers in Herat, Mazar, Jalalabad, Kandahar, and Kabul. There is also talk of a sixth one in Khowst. The problem seems to be timing. Given transition concerns, the timeline is compressed so much that we're moving focus into the districts at an advanced rate. Focus everywhere is focus nowhere, it would seem.

    I think the model, much like your own, is workable and does greatly simplify the issue. However, what happens at the local level outside your key areas? As we "ignore" these places while solidifying the key areas, doesn't taliban justice becomes stronger? Also, while we can certainly protect the justice center and its operators in legal green zones as you suggest, how do we protect those that use our services? It would be quite easy for the taliban to determine who is using it and then punishing the locals.

    we must bring justice to the village in order to be able to secure it.
    well said.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  20. #60
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    Protecting those who work with GIRoA and the Coalition is a problem for every aspect of our operations there over the past 10 years, not just this one narrow, but critical, LOO.

    If the Coalition does not shift focus to oversee and drive a reconciliation that results in reincorporating those represented by the Taliban with those represented by the Northern Alliance into an evolved, inclusive form of GIRoA, there will inevitably be a growth of insurgency as we withdraw (and we will withdraw) that will indeed punish those who have collaborated with our occupation. To assume otherwise is naive.

    The Justice LOO I lay out here must be part of a larger effort that takes on overall legitimacy of governance (ends the Northern Alliance monopoly and Taliban exclusion) and equity under the law (ends the centralized Ponzi scheme of Patronage codified under the current constitution that make ALL government in Afghanistan "Government in a box" - a box built by the constitution, protected by the Coalition, and filled with cronies by Karzai). In such a scheme security efforts and development efforts would be greatly reduced and refocused as well to support these main efforts that go after the true drivers of this enduring conflict.

    Can we protect all the people in the short-term? No. More will die due to the deliberate and accidental acts of both sides in this conflict. When one wages war against and among the people, the people suffer. We must focus on the longterm. If we only seek to enforce an exclusion of one side, then there will be a backlash, and it will likely be a brutal one.
    Robert C. Jones
    Intellectus Supra Scientia
    (Understanding is more important than Knowledge)

    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

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