Rule of Law in Iraq & Afghanistan

[Bob's World]

(Somehow I know Mike is double billing someone for this...probably me)

I like the distinction as you explain it in "of" vs. "by"; I just don't think 99.5% of those who hear, use, or are expected to employ the term will recognize the difference. This is such a critical aspect of stability and good governance I'd hate to see the battle lost in the nuance of a 2-letter word.

KISS to me is "Justice"; and that is how one feels about how the law is appled to them; not a nuance of how one applies the law to others. Key is to get the implementers to assess their effectiveness from the perspective of the aggrieved populace that should be the focus of the engagement where insurgency exists; or the populace as a whole where one is seeking to prevent insurgency from ever manifesting to dangerous levels in the first place.

I think your concept is both brilliant and clever, and yes, that is a compliment; I just prefer brilliant and simple. (I really like Einstein's thinking on understanding vs knowledge; and the imporance of simplicity). Simple is just so damn hard, it is what I aspire to.

Bob

(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

[carl]

Bob:

You say

(And yes, Carl, as a former prosecutor I appreciate fully that prisons and jails are full of "innocent" men. But trust me, very few do not know exactly what laws they broke and know that if they were held to account for all their sins they would never see the light of freedom again. For that matter, most of us would be in there with them if all of our sins were counted as well.) You know what justice is, as does everyone. It varies between people and culture, but we all know it when we see it.

and you also say

From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

So on the one hand you say, the hoods know that they broke the law and imply they don't feel they are victims of an injustice but on the other hand you seem to say the hoods broke the law but are feeling they have been unjustly treated.

I am confused.

[Bob's World]

My point was not to confuse you. My point was that even in America we need to never lose sight of how important perceptions of justice are to maintaining a stable populace; and that we are drifting toward instability because we are not focusing on ensuring we have justice in how we apply the rule of law across the populace.

[carl]

But it has been my experience that hoods almost always feel they are unjustly treated. Prisons are filled with hoods. So it is to be expected that prison populations feel things are unjust. They are not a representative of how the law is perceived as just across society.

As to your point that we just know what is just. It is 1859 and I am a slave catcher enforcing the fugitive slave law. I know in my heart that my actions are just. The fugitive slave knows in his heart that his flight to freedom is just.

How are these positions reconciled?

[jmm99]

I'll nail Jones next and double b!££ the he££ out of him (since he raised the issue).

First Point

Here is why you are a friend, even though at times you and I may espouse different policies - no Pullsit here:

Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."

Besides you are nuts enough to put aircraft into very, very lousy landing fields; take out Hankooki Pu$$!; and are one of my three "Stallion" all-around pilots (excluding military jet jockeys) - the other two have Italian ancestry (you ?).

Second Point

If you insurged, I would neutralize you - not a dodge (neutralize = kill, detain or convert). But, the emphasis depends on the governance.

In example #1 - my "rule of law", a constitutional process exists for change (majority rule for "ordinary stuff"; 2/3 or 3/4 for extraordinary). So, the probabilities of an insurgency are lessened in what I see as a "true democracy" (as I have defined "Rule of Law"). Note that a "Rule of Law Democracy" might be quite nasty as to the minority that refuses to accept the "constitutional rule of law" - including the death penalty. That all depends on that group's accepted Social Norms. But, the thrust of "neutralize" would likely be to convert, detain, kill in that priority order.

In example #2 - my "rule by law", I (as dictator) have some choices. Based on the probabilities (and given my resource capabilities), my better choices in priority order are kill, detain, convert. None are excluded; but I as dictator want to completely control the situation and every aspect. You and I have not lived under that - kowalskil has - please read his autobio (yup; he's an old ba$tard like Ken - and I'm getting there - live with it).

My point is that "true democracies" (using my construct of the "Rule of Law") and "true autocracies" (using my construct of the "Rule by Law" and applying it without pity) are not as likely to be insurged - opinions differ as to what their respective probabilities are. The governments that are "in between" get butchered on a much more regular basis.

So, if a "Rule of Law", I'm going to do my most to convert Carl. If a "Rule by Law", putting Carl alongside the long-tail in his avatar would be a high choice.

That's a long bunch of Bravo Sierra (hi Stan ) to confirm your second point.

Cheers

Mike

[Bob's World]

Ok, I need to read Mike's post in detail before I reply to it. For Carl:

The United States has less than 5 percent of the world's population. But it has almost a quarter of the world's prisoners.

46% of those are African American.


Carl you counter actually makes my point. As I study the history of insurgency, rarely does the counterinsurgent recognize the perceptions of the insurgent, but rather relys on his own legality and upon the facts he uses to rationalize his actions.

Law and facts just don't matter much in COIN. Justice and perceptions are everything. The persective that matters on both of those is that of the insurgent segment of the populace.

[carl]

Mike:

Nice explication of why the in between places have more than their share of insurgencies.

[carl]

Bob:

You say knowing what justice is varies between people and cultures. Yet you also use the variance between US and world rates of incarceration to imply the US system is unjust. How can you legitimately use world rates to question the justice of US rates if the peoples and cultures of the US are very different from that of the world?

When you say 46% of the prison population is African American you are implying that that is unjust because that is less than the % of African Americans amongst Americans. From that you seem to conclude that, correct me if I misstate your position, that African Americans believe the America is unjust. It is a fact that most victims of African American hoods are African Americans and it is quite likely that the victims greatly outnumber the hoods. In view of this I think it unlikely the African American community at large views the justice of the system (shades of 60s talk) in the same light as the hoods do.

My counter could make your point. The other possibility is that you are wrong and there is nothing there.

[Bob's World]

Carl,

Is this thing on?

You want to argue facts. I feel like I am talking to a block of wood. You are not either a prisoner, nor an African American, correct? My point in wheeling out the statistics is that they indicate a potential problem. What you must do is be able to put yourself in the shoes of a member of the African American populace in general (this would help you to understand the perspective of a potential base to the inshsurgency. How the mothers, fathers, brothers and sisters feel). Then you must be able to put yourself into the shoes of an incarcerated African American (or latin American) and visualize how they might feel.

If all you can do is look at them as "hoods" you are the classic counterinsurgent. Send the navy and the army to Boston and enforrce the rule of law. We'll show em this time, by god!

[jmm99]

we need a Retainer Contract - I will charge you (a double bill - you wish !!!).

We'll start with what I've charged Polarbear1605 and John T. Fishel. Since you retired a grade higher than them, that's a double-up. Now, since you are also a lawyer in a prior life, that's a triple-up. Since you come from the Pacific NW, that should be another bump. But, I am Merciful and Compassionate.

You can check with the Great White One and the ES Wonder to determine the mammoth proportions of your bill - it will be huge.

And, if we can't resolve that, I will call in the SNCOIC to settle the affair and make both of us talk to the crickets - which would be true justice.

What We Will Fight About

We will fight about legal and legal history issues, national security policy issues, the interface between civilian policy and military strategy. We will attempt to develop "working definitions". We will prefer communicating with each other - and forego isolated conversations with the crickets.

What I Won't Question, But Will Check You

In your military area (SF and SOF), I'm not about to contradict you. You have provided me with huge insights on direct action and the concept of AQ's use of unconventional warfare (affiliated groups, which should not be the primary target).

In fact, you set me off on looking at Giap and Vietnam in a way that is contrary to what you say, but accords with what I thought - he won in Vietnam; we won in Southeast Asia (that's a History Argument ).

----------------------
But then, I even check Custis - my standard on the Corps' current strategy and tactics. Won't contradict him, but I'll send him a PM to ask "why ?".

This post is probably too long and personal (maybe better a PM; but that was my choice, right or wrong).

The problem is that I like you - and we've had too many arguments which should have gone to the crickets - at least, for me.

You remind me of another serving Quaker (this guy, counsel to LTG Peers and the My Lai Inquiry - a man I was privileged to know and work under).

Best Regards

Mike

PS (added) - Carl and BW should talk to each other - skip the crickets and me - try a PM and find that each of you has more in common than not in common. If not, go see the bugs.

[carl]

Bob:

No, if anything ever got "on" I would be at a severe disadvantage in all areas of endeavor. Wooden heads chip easy.

I observe that you use the disparity between % of prisoners of a specific race and the % of a specific race in the general population as potential evidence of some sort of malignity. I don't think that is valid. The classic argument to illustrate that is using the less than representative numbers of anglo guys in the NBA as evidence that the league is prejudiced against whites. Percentages of people in most professions or status' are the result of many factors that interact in complex ways. I learned that from reading.

Your statement about putting myself in the shoes of a hood of whatever color or race reminds me of things I used to hear frequently from hoods. They would say "You would have done the same thing!" I would think to myself "No I wouldn't have. I'm not a hood. You are."

I don't think of all the members of any race as hoods. I think of hoods as hoods. As the man said, I dislike them all equally.

[LawVol]

Wow, I miss a lot while I'm in the rack!

Bob: I understand your request for simplicity, but sometimes that just isn't possible. COIN, as you know, is complexity to the nth degree. The problem with using justice as a basis for COIN rather than rule of law (ROL) is that justice can be unevenly applied while ROL cannot. The Taliban handed out justice, a crude and often barbaric form but nonetheless still justice. Saddam did the same thing. Both, as indicated by Mike ruled by law. If you were a good muslim pashtun, you received justice under Taliban rule; if you were a Hazari Shia, not so much. If you were a sunni in the Ba'athist fold, you likely received justice, a Shia or Kurd, again not so much.

Justice is a fine concept is evenly applied. However, the only way justice is evenly applied is if ROL exists; if ROL is sovereign rather than an individual. So I agree with Bob that justice is a desired end. However, it is not the final end given what I've said above. The complexity of the issue is perhaps unavoidable and it is up to those with legal minds to simplify the concept as much as possible (the inability to simplify such concepts is a pet peeve of mine regarding lawyers; those who can't are ineffective). Mike has done an excellent job of simplifying the concept. Thsi same explanation is used in many circles here and I've found that most folks I talk to get it rather quickly.

Mike: There is a social difference among Kabulis and rural folks (and even residents of other main cities). Kabulis tend to be more western oriented, more educated, etc. Many outside Kabul look at the formal legal system as just another method of central control vice an attempt at ROL (or universal justice if you prefer). There is some truth to this accusation as some within the Kabul power structure are seeking to minimize jirga influence in the overall legal process.

A bill is currently pending in the legislative process (I believe its at the Taqnin right now) that seeks to bring jirgas into the formal system by requiring documentation, compliance with Constitutional/International law, specific requirements for jirga participants, etc. However, this is viewed as a threat by some in the power structure as they see official acknowledgement of the jirga system as weakening central control. Rural folks also see the bill as a threat by an overbearing central authority due to some of the provisions. From what I hear, however, there really isn't an issue from the rural side on documentation and related issues so this is at least an opening that can be pursued. My own opinion is that we should minimize any structural changes to the jirga system as much as possible as we bring it into the formal system. The first issue is getting it in and recognized as such. We can tweak details down the road.

[Polarbear1605]

Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

Speech (17 pages in pdf)

Slides (15 slides in pdf)

Examples covered:



The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

Those and other legal issues resaulted in:



BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

Interesting speech by General Mark Martins but when general officers give speeches they rate constructive criticism about what they are saying. Constructive criticism is a cause for reflection and should be a normal step in developing and building a solution no matter how noble and honorable the work. As a qualifier, I am not a lawyer, and I am not attempting to minimize what the general and the Rule of Law Field Force are currently tackling but I see a fundamental flaw in the basic approach. BTW, in my opinion, the general’s speech spent too much time warming the hearts and egos of the Harvard Law School Staff and students instead of throwing down the gauntlet of reality. Yes, people think that this is complex stuff but we are not going to solve the complicated by making everyone feel warm and fussy.
General Martin states, at the bottom of page four:
“My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners form whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases proportion to which the laws are made by a legislature or by some process representatives of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.”
In my opinion, General Martin, in the above definition has just lumped the Rule of Law and the Laws of War into one and then asked us to handle the lump as the Rule of Law and that is the basic flaw http://warchronicle.com/DefendOurMar...ar_6SEPT10.htm . Rules of Law and Laws of War are very, very different. Rules of Law apply to society and the Laws of War apply to the battlefield and when society members (non-combatants) are in the middle of the battle field the Law of War is all you got. On the battlefield citizens are non-combatants; if they pick up a rifle (or IED) they become combatants and insurgents are a very small step above spies. We all understand what the general is talking about when he states that “Sound counterinsurgency is a good thing; trying to stage CSI Baghdad or CSI Kandahar on a military objective is not, and quite frankly, the latter is dangerous.” Then why use counterinsurgency as an excuse to mix the Laws of War and the Rule of Law and have our Soldiers and Marines working for judges. Soldiers and Marines follow their ROE that are based on the Laws of War and not judge’s Rule of Law requirements.
In the general’s first example; “Responding to attacks from shrine in Najaf (Iraq)”. The general states “At one point, General Petreaus recalls putting a precision munition within some 400 meters of the Imam Ali Shrine, having received reliable intelligence that about 200 armed Saddam Fedayeen were operating in and around the shrine [there is an exception to the rule protecting religious sites that expose them to attack if they are used for military purposes].” This can only be viewed as an exception to the Rule of Law. In actuality it is not an exception, it demonstrates the Law of War principle of military necessity and military necessity is determined by commanders and not lawyers.
The Laws of War and the Rules of Law have to be kept separate. Yes, we need to establish a “coordination point” for a “relief in place” between the two but we cannot mix them. If an insurgent is captured on the battlefield then he goes into a POW system where he is interrogated for further military intelligence. He should not be provided the rights of a citizen. How else are we going to hunt down the insurgent shadow government that will use the most extreme means of intimidation on non-combatants?
The general does use two good examples of the Rule of Law in his speech; “Opening the Syria border crossing (Iraq)” and “Fielding the rule of law in practice”. Both of these examples add value to what the military commander is trying to accomplish. I also note, however, that the general speaks nothing of burning and ignored issue in both wars…How do we handle insurgents who commit war crimes? To turn them over to civilian host nation authorities ignores the war crimes and does little to stop civilian deaths. A “catch and release” policy puts our Soldiers and Marine at risk and is counterproductive to any COIN effort.

[Stan]

Hei Mikko !
I admire your constraint and use of the phonetic alphabet to express your views

That's a long bunch of Bravo Sierra (hi Stan ) to confirm your second point.

Cheers

Mike

[jmm99]

Harvard Law ? .....

COL Jessep.jpg

You can't handle the truth!

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes. I'd have no illusions about converting most of Michigan Law's faculty.

In terms of substance, I was pleased with some points, and not totally satisfied with others, in what he calls his "working definition" (thanks for using that term, General) (emphasis added):

My working definition of the rule of law is that it is a principle of governance which holds that all entities in society, public and private, including the state itself, and including coalition partners from whom the state has sought assistance, are accountable to laws. The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest, enforced by police and security forces that themselves follow the law, and interpreted, elaborated, and applied by judges who are evenhanded, honest, and independent.

I'd suggest that the state cannot be held to the law unless the "rule of law" exists (as I've suggested in my "working definition") - rules ordained and established by the People (who have sovereignty over the state).

If the state ordains and imposes the rules from above, the state is not subject to the law because it can change the rules to favor it. In GO's terms, "all animals are equal" morphs to "all animals are equal, but some animals are more equal than others."

That being said, Mark Martins clearly recognizes the relationship of "rule of law" and the People, when he says:

The rule of law in the society concerned increases in proportion to which the laws are made by a legislature or by some process representative of the people’s interest ....

Obviously, I agree with that. But, having said that, I'd suggest that in "regime change" situations "rule by law" (at least initially) is simply what must exist. Astan is a classic case of "rule by law", starting with the Bonn Agreement, etc.

The "working definition" also goes beyond the Astan national law (whether called "rule by law" or "rule of law") ....

... and including coalition partners from whom the state has sought assistance, are accountable to laws ...

which brings in International Law and the domestic laws of the various partners. And, since an armed conflict is on-going, the Laws of War come into play where appropriate.

Now, let me make something clear: Mark Martins is perfectly capable of discussing all of these areas of law in depth, especially the Laws of War (LOAC, IHL) as applied to ROEs and RUFs. His 1994 article is a classic, Major Mark S. Martins, "Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering," Military Law Review, Volume 143 (Winter 1994).

I suppose his problem in becoming too technical at Harvard Law was that most people there would not have understood what the He££ he was talkiing about - Sure, Jack Goldsmith and probably some others; but the average civilian lawyer or law professor is as familiar with International Law and its subset the Laws of War (LOAC, IHL) as with the Roman Rite of Exorcism.

The following section did not really set out the issues I feel important, with respect to the subject matter area discussed:

Acting upon reports of excessive force or crime (Iraq & Afghanistan)

A third example — and this one is representative of incidents that have confronted commanders in Iraq and Afghanistan: on rare occasions we have received reports alleging use of excessive force against civilians or maltreatment of detainees, either at the point of capture during operations or while held in a facility under U.S. control.

The decision-making process in these rare situations — and I am pleased to be able to say that they have been rare, even as we have faced some who have hidden themselves among civilians and who have sought to mount attacks while in detention — the decision-making process in these rare situations has been governed foremost by law and by our investigative and military justice system. The law requires prompt reporting and investigation of all potential violations and, if the evidence points to it, the prosecution of violators. In these situations, our deployed judge advocates take a lead role. But commanders making decisions in these situations also must incorporate comprehensive non-legal measures to prevent future violations and to eliminate factors that might have contributed to the reported incident. These measures may include immediate instructions through the chain of command, training of guards and interrogators, improvement of facilities, invitations to the International Committee of the Red Cross and others to conduct assessments, discussions with and visits by mullahs and Imams and local council members, and so on. Take the case of a so-called escalation-of-force incident in which troops employ the rules of engagement to, with escalating force, warn an approaching vehicle to slow at a checkpoint and end up tragically claiming the life of a civilian. To help prevent such incidents, non-legal measures may include improvements to traffic control points such as physical barriers, clearly understandable warning signs, better lighting, and refinements to procedures.

In fact, it largely ducks the legal issues.

The principal issue is the interface and transitions between the Rule of Law (whatever your "working definition", non-military law) and the Laws of War (LOAC, IHL). As stated by Da Bear, the ideal is a seamless RIP between RoL and LoW.

What I'm seeing (others may have a different perception) is that UCMJ prosecutions appear to be enforcing RoL; and, at least in choice of the charging articles, are RIFing LoW as a co-equal legal system in combat situations.

Yeh, there still is the Rule 916(c) Justification Defense:

(c) Justification. A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

and the 916(d) Obedience Defense:

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

but those are not emphasized (look at the relatively few appellate cases dealing with those defenses).

Again, though, we are getting into subject matter that would seem incredibly arcane to those at Harvard Law. I doubt many there read Defend Our Marines - that is unfortunate, but a reality.

Regards

Mike

[Polarbear1605]

Seriously, it was BG Martins' call as to how he wanted to coat the pill. I didn't go to Harvard; and I can't put myself in his shoes.

Yep, your right, but when a general bares his ankle I can’t help but nip at it a bit…much like my wife’s fat cats when they see a bird outside the window; their teeth chatter as a primeval genetic uncontrolled reaction to spotting potential prey.

As I read through the above posts most everyone speaks or at least implies that establishing the rule law in a counter insurgence is a complicated business. My gut than screams, well then, SIMPLIFY IT. Start with the Laws of War; because you must. The reason you must is because that is all there is. When counter insurgency forces move into insurgent controlled territory there is no rule of law. Chances are police and judges has been executed or run out and they will not return until the insurgents are gone. Our Soldiers and Marines are the only thing that can establish control and fight the armed wing of the insurgency and as long as they are fighting it has to be under the Laws of War. When the US military moves in, the armed insurgents move out and the political or shadow government goes into hiding. The insurgent decision to not take on our military forces presents a gap or opportunity to establish our intelligence apparatus/network with the mission of finding the shadow government. Again, these folks must be operating under the Laws of War.

As the insurgency forces are eliminated you can begin transitioning in police, judges, mayors, schools and whatever else is necessary, however, as long as the military forces are there it all stays under the Laws of War. When you don’t need military forces then you are ready for the Rule of Law. There must be a (and I will use these terms again for you military folks out there) "coordination point" and a formal "relief in place" between the Laws of War and the Rule of Law.

If you compare FM 3-24/MCWP 3-33 Counterinsurgency to the Marine Corps Small Wars Manual (MCSWM) (and set aside the difference in publication dates just for a few minutes), there is a marked difference that hits me with all the power of a 16oz boxing glove swung by a professional fighter. Both manuals have a healthy dose of “Intelligence” but the MCSWM has five chapters (the last five) that are almost completely missing from FM 3-24. Those five chapters speak to the frame work for establishing a military (Laws of War) controlled government and then transitioning to the Rule of Law. The MCSWM simplicity is a thing of beauty when compared to discussions, debates, frictions, lawfare, war crimes issues, etc., etc., etc., we are experiencing (first in Iraq and what seems forever) in Afghanistan.

I think the truth teller is the last chapter in the MCSWM is titled “Withdraw”…the last chapter in FM 3-33 is titled “Logistics”.

[jmm99]

this is poetic:

....a primeval genetic uncontrolled reaction to spotting potential prey...

Regards

Mike

[LawVol]

Polarbear: As I read through the above posts most everyone speaks or at least implies that establishing the rule law in a counter insurgence is a complicated business. My gut than screams, well then, SIMPLIFY IT.

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. It doesn't tell jurisdiction or composition of a court system. It doesn't demonstrate the difference between tax collection and a shakedown. Simply put, the Law of War tells you nothing about Rule of Law.

Law of war dictates how war is fought. Rule of law is an ideal by which a country should function (at least from a western perspective). I think you confuse the two. There is a law of occupation that governs how an occupying country (presumably with a military force) must administer an occupied country, but it doesn't apply in Afghanistan because there is a sovereign, functioning government here.

The question becomes how well do we wish the Afghan government to function? Right now, it works, but not very well. Corruption is systemic, governmental control is tenuous, at best, in some parts of the country, and the educational level of most of the country precludes immediate solutions. This is why the effort is complex. We could simplify, say, criminal law within Afghanistan, but it would not be compliant with typical notions of rule of law or Afghan commitments under international law. Hell, the Taliban had a functioning criminal justice system that was efficient, fast, and provided some form of justice. It did not, however, equate to rule of law; rather, it was rule by law.

Why is rule of law important? For a society to function effectively and provide for the well-being of its people, rule of law is crucial. Rule of law ensures that a country is a nation of law rather than of men. In other words, it requires that all are subject to a non-arbitrary legal system. This, in turn, allows people to plan for the future. They can start a business, buy property, etc. Rule of law encourages investment, something Afghanistan sorely needs, because property rights and contract law (components of rule of law) are crucial to the attraction of foreign investment.

The law of war looks to the present; it says how a war is supposed to be fought. Combatants and civilians are given rights that are only applicable during the war so that war's ferocity can be limited in some fashion. Rule of law, however, looks to the future. It seeks to help a country, particularly a warn-torn country, get back on its feet and work toward a viable future. The absence of rule of law merely perpetuates the war paradigm; it allows men to rule by law (force) and make a country their own little fiefdom. Rule of law cuts against this by establishing rules of conduct that respect each individual's rights and freedoms. Again, it provides a degree of certainty.

From your first post:

insurgents are a very small step above spies

it isn't factually or legally correct. 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. The legal limbo in which our guests at Gitmo are in is a new invention, but that's another story.

ROE that are based on the Laws of War

While ROE must comply with the laws of war, they are not "based" on it. Laws of war are just that, laws. They have become customary international law and, thus, must be obeyed by those engaging in warfighting. Rules of engagement are just that, rules. These rules are established with command authority to govern action on the battlefield in such a way as to give some measure of control to command authorities that may not actually be present on the battlefield. This is the classic political dominance over military means (Clausewitz points this out by recognizing that war is a continuation of politics). These rules permit politicos to maintain control over the means they use to obtain a political ends by ensuring that those means do not create additional political obstacles. Sometimes this is successful, sometimes not (e.g. Abu Ghraib).

How do we handle insurgents who commit war crimes? To turn them over to civilian host nation authorities ignores the war crimes and does little to stop civilian deaths.

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.

[LawVol]

On rereading Gen Martins' speech, I am most surprised at the title (I don't fault him for his effusiveness since he was, after all, receiving an award). The title of his piece indicates that the substance is "rule of law." However, the bulk of his legal discussion, presented in six examples, does not discuss rule of law.

The first four examples demonstrate how law "constrained, enabled, and informed U.S. military operations" during war. Visions of Clausewitz's friction come to mind at this description. The first example has insurgents firing from places protected under the law of armed conflict (LOAC). This is an example of tactical lawfare by the insurgents. They seek either the protection afforded by their choice in firing positions from US reluctance to be viewed as violating LOAC (or reluctance based on potential political and public relations fallout) or the benefit of using American "callousness" as a recruiting or PR tool. Of course, under LOAC the protected place loses its protections because of the enemy action, but that doesn't change the "friction" generated by enemy action.

The second example is a tactical use of lawfare by using law to address a battlefield issue. The situation on the ground required more consumable goods, so law (or at least a change thereto) was used to open a border to allow for increased trade. The third example is similar to the first in that it seeks to address a potential LOAC issue by using law (his last sentence in the paragraph) to address the issue. The fourth issue is akin to the second in that a change or reinterpretation of law was used to broaden the use of CERP funds.

These examples do not constitute rule of law in the sense that we are attempting to bring it to Afghanistan. Under his own definition, the rule of law is "a principle of governance which holds that all entities in society . . . are accountable to laws." The very fact that he uses these examples demonstrates that the rule of law already exists with respect to the primary actor in each of the examples (i.e. the US). But it is the Afghans we are concerned with here. It is only in the last two examples that he briefly constructs a theory of rule of law as conjoined with counterinsurgency and then demonstrates it in practice. His unit is doing great work here and they are bringing rule of law to Afghanistan.

Given his first four examples, I am also a bit surprised by his statement: "I instinctively avoid ever calling the law a mere 'tool' in the service of some other end" (although in the sentence just before this one, he did refer to law as a tool). His four examples clearly demonstrate law being used as a tool to achieve an end. Moreover, this is what all law does. Speed limit laws are used to achieve, among other things, safety. Tax law is used to gain revenue for the government to carry out its functions. Tort law is used to distribute suffering and/or avoid waste. The point is that law is always a tool or as I like to say a means to an end, especially in war.

There are many examples of law's use as a tool in war, but I'll give just one. In the heyday of European imperialism in Africa, they inevitably came across African tribes that refused to submit and chose to fight instead. Of course, the Europeans had a firepower advantage (repeating rifles, etc.) over the tribes. In an effort to maintain that area of superiority, the competing European country entered into a treaty (i.e. international law) agreeing that none would sell this technology to the tribes. Thus, even though competing against other countries for African riches, these countries saw the long-term benefit that law could provide. This is lawfare plain and simple. Contrary to what the folks at The Lawfare Project are selling, lawfare is a tool that can be used for good or ill. I guess it depends on your viewpoint.

[jmm99]

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