Rule of Law in Iraq & Afghanistan

[Polarbear1605]

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.