Rule of Law in Iraq & Afghanistan

[LawVol]

Your Back!...?

Yep, my trip was cut short due to flight restrictions so I had to catch whatever was available out of there or risk a long-term stay with short-term supplies. On watching the news this morning, I now know why. It was still a productive trip and I learned a bit about Pahtu vs Hazara views of RoL.

LawVol, I do think that in many ways we are saying the same thing but differently

I'm beginning to see this as well. I did come across an example on my short trip that illustrates, I think, both of our positions. It seems there is some frustration among a particular battle space owner because of the conflict between RoL and LoW (his characterization as relayed to me). He doesn't like the fact that his troops sometimes have to do warrant ops (serving warrants and all that entails) as he'd rather just kill them. Given proper PID, I can't say I'd disagree but then again I don't make the rules or generate the mission. However, some of the spec ops folks actually like the warrant ops because they find that on showing a village elder official paperwork, they often are able to take custody without shooting. These differing experiences, however, are likely a result of differing conditions. What works in one place may not work in another (this is why a ground-level view is crucial for policy-level folks).

I understand my tone can be ruff, but don’t recall blaming lawyers.

I meant this as more of a general statement rather than an indictment of anything you said specifically. Thanks for the book suggestion; I'll check it out.

[jmm99]

Hey Steve,

Your question:

The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

Wonder if this is applicable, helpful, correct?

Guiding Principles for Stabilization and Reconstruction, Section 7 Rule of Law

seems better placed here than in "War Crimes".

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".

I will take a crack at answering your question re: USIP; but not tonight.

In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:

Davis is not, however, completely wrong from my perspective. His conclusion that the results (real, imagined, or expected) are not worth the effort is accurate from my own perspective. While Davis toured with combat units, I toured with development folks working in the area of rule of law. Thus, our views become complimentary in that counterinsurgency doctrine places great importance on the development of rule of law, as it is the glue that allows hard won combat victories to mature into sustainable civil society. The issues of rule of law are every bit as complicated as the tribal and enemy dynamics described above. However, some are of our own making.

Americans have a tendency to throw money at problems in the belief that money can fix everything. Combine this with a myopic view of rule of law and the effort here becomes stagnant. Afghanistan is a poverty-stricken country with little hope of matching the influx of coalition money in the near future. Given the history of warfare here, Afghans are more likely to think in the short term than in the long term. This dictates that Afghan powerbrokers will look to absorb as much money from the coalition as possible before the coalition leaves (having an end date certainly provides incentive for this conduct). Thus, Afghan officials within the rule of law sector constantly ask for infrastructure and financial support for personnel. This is accomplished with little thought to sustainability. In other words, how will this infrastructure and personnel be paid for when the coalitions leaves? This strategy, however, does lead to a perception of success since supporters can point to the number of courthouses built, judges hired, and bad guys prosecuted without any in-depth thought to the long term sustainability of the effort. Unlike Davis, I do not see lies here – I see misperception.

Our approach to rule of law is also, generally speaking, too focused on criminal law. This, I believe, stems from the fact that criminal law is viewed as “sexy” by lawyer and layman alike. After all, Hollywood doesn’t make television shows about contract law, do they? However, when one is trying to build a sustainable government, it is necessary to generate revenue to pay for that government’s operations. Contract law fosters security of business contracts, which increases foreign investment. Customs regulations assist in the generation of tax revenue. Transportation law allows the efficient movement of people and cargo so that business can flourish. Lawyers and judges trained to settle land disputes (a huge issue here) allow for resort to courts rather than to violence. Sure criminal law is important, but not to the exclusion of civil law or the relegation of it to almost an afterthought.

The complexities of the situation here, and our seeming inability to address them, lead me to a pessimistic (although I think realistic is a more accurate term, but that’s my perception) view of the sustainability of this effort. Applying this to the questions I asked in the first paragraph regarding my contribution also results in a cynical outlook. As I do not think this endeavor to be sustainable (indeed I see civil war on the horizon) I cannot say I’ve made a difference. The men and women that reduced Al Qaeda to a shadow of its former self made the difference here, which, incidentally, was the original political objective of this war. Conversely, I have learned a lot, although I’m not sure that what I learned was actually intended. Unintended learning, though, is sometimes the best kind of learning. For that knowledge, at least, I am thankful.

A virtual shell of beer is raised to you, John. Welcome Home.

Regards

Mike

[Surferbeetle]

Hey Steve,

Your question:

seems better placed here than in "War Crimes".

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".

I will take a crack at answering your question re: USIP; but not tonight.

In the meantime, take a look at LawVol's closing blog post, Closing Thoughts (17 Feb 2012). As to the "rule of law", I found these paragraphs by John to be most compelling:

A virtual shell of beer is raised to you, John. Welcome Home.

Regards

Mike

Mike,

Greatly appreciate it, whenever you get to it. Lots of things going on in the world of late.

By the way i also use that framework to look at/measure our own/western institutions and practices.

John/LawVol,

Welcome home, job well done.

Take care,

Steve

[Polarbear1605]

Hey Steve,

Once LawVol decompresses from Afghanistan, I'd hope he'd join in the discussion. Of course, Polarbear1605 is always decompressed when it comes to "Rule of Law".


Mike

You know the bear never misses a chance to charge a windmill...and probably should not pass this one up but I do need to read the reference...remember, what drove Don Quixote mad was reading besides I would never describe myself as compressed...concerned and a bit fanatical is better.

[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").

[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