Law and Military Operations in Haiti 1994 - 1995, Lessons Learned for Judge Advocates

431 Pages·1997·0.92 MB·English

LAW AND
MILITARY
OPERATIONS
IN HAITI
1994-1995
LESSONS
LEARNED
FOR
JUDGE
ADVOCATES
Center for Law and Military Operations
The Judge Advocate General's School
United States Army
Charlottesville, Virginia
CENTER FOR LAW AND MILITARY OPERATIONS
Director
Colonel David E. Graham
Deputy Director Inter-Service Secretariat
Major Mark S. Martins Captain David G. Bolgiano
Observer-Controllers
Combat Maneuver Training Center
Major Michael E. Sainsbury
Joint Readiness Training Center Battle Command Training Program
Captain James M. Patterson Captain Roger C. Cartwright
Reserve Component Liaisons
United States Army Reserve Army National Guard of the United States
Colonel Keith H. Hamack, USAR Lieutenant Colonel Peter Menk, ARNGUS
The Judge Advocate General established the Center for Law and Military Operations in
1988 at the direction of the Secretary of the Army.
The purpose of the Center is to examine legal issues that arise during all phases of
military operations and to devise training strategies for addressing those issues. It seeks to fulfill
this purpose in five ways. First, it is the central repository within The Judge Advocate General's
Corps for memoranda, lessons learned, and after-action materials pertaining to legal support for
deployed forces. Second, it serves as the Secretariat for the Inter-Service Committee on
International Legal Education, which coordinates legal training provided by the separate military
services to foreign countries under several statutory programs. Third, it supports judge advocates
in the field by disseminating key lessons learned, by building a database of legal issues
encountered by previously deployed judge advocates, by creating guides to successful operational
law training and evaluation, and by recommending refinements to doctrine for legal operations.
Fourth, it integrates lessons learned from deployments into the curriculum of all relevant courses,
workshops, orientations, and seminars held at The Judge Advocate General’s School. Fifth, with
The Judge Advocate General’s School, it sponsors conferences and symposia on topics of interest
to operational lawyers.
The Director of the Center also serves as Chief, International and Operational Law
Division, Office of The Judge Advocate General. The Deputy Director heads the main office in
Charlottesville, where the Center forms an important part of The Judge Advocate General’s
School and represents the Corps’ growing commitment to excellence in operational law.
The contents of this report are not to be construed as official positions, policies, or
decisions of the Department of the Army or The Judge Advocate General. The Center welcomes
and solicits suggestions and contributions of relevant operational law materials from the field.
Please call 934-7115, ext. 339 (DSN) or [phone] (commercial); send electronic mail to
[email protected]; post a message to Major Mark Martins on the Legal Automation
Army-Wide Systems (LAAWS) electronic bulletin board service (BBS); or write Major Martins,
Center for Law and Military Operations, The Judge Advocate General's School, 600 Massie
Road, Charlottesville, Virginia, 22903-1781.
LAW AND MILITARY OPERATIONS
IN HAITI, 1994-95:
LESSONS LEARNED FOR JUDGE
ADVOCATES
CENTER FOR LAW AND MILITARY OPERATIONS
11 DECEMBER 1995
LAW AND MILITARY OPERATIONS IN HAITI, 1994-95:
LESSONS LEARNED FOR JUDGE ADVOCATES
CENTER FOR LAW AND MILITARY OPERATIONS
TABLE OF CONTENTS
I. Introduction ................................................................................ 1
II. The Military Operations and Their Context..................... 7
A. Situation Before the Military Operation ...................... 7
B. Operation Uphold Democracy ...................................... 13
C. United Nations Mission in Haiti ................................... 22
D. Judge Advocate Support ............................................... 25
III. Lessons Learned .............................................................. 30
A. Rules of Engagement ..................................................... 34
1. Be Prepared for Controversy Over Protection of
Foreign Nationals ..................................................... 37
2. Use Situational Training ........................................... 40
3. Be Willing to Take the Lead in Multinational ROE
Development .............................................................. 43
B. International Law .......................................................... 45
1. Understand the International Justification for Use
of Force and the Impact of Domestic Legislation ..... 47
2. Expect to Practice Law Without the Benefit of a
SOFA ......................................................................... 50
3. Understand When The Law of Armed Conflict
Does Not Strictly Apply ............................................. 53
C. Intelligence Law ............................................................ 57
1. Know That Force Protection Can Justify Collecting
Information on United States Persons ...................... 58
2. Understand the Different Roles of Military
Intelligence and Military Police ................................ 59
3. Monitor Counter-Intelligence Force Protection and
Use of Intelligence Contingency Funds .................... 62
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ii CENTER FOR LAW AND MILITARY OPERATIONS
D. Detention of Non-members of the Force ....................... 63
1. Begin Planning Early for Detention Issues .............. 65
2. Give Two Judge Advocates Independent Roles in
the Release Determination Process ........................... 67
3. Encourage the Commander to Delegate Authority
to Release .................................................................. 70
E. Weapons Buyback and Control ..................................... 72
1. Know and Coordinate With All the Key Players in
the Weapons Program ............................................... 74
2. Be Prepared to Advise Commanders About
Disarming Threats to the Force ................................ 76
3. Understand Applicable Search and Seizure Law ...... 77
F. Media Relations ............................................................. 78
1. Describe the Processes and Legal Authorities that
Explain Military Actions ........................................... 80
2. Acknowledge the Legitimacy of the Media’s
Presence in Operations Other Than War .................. 82
G. Joint, Inter-Agency, and Nongovernmental
Coordination .................................................................. 84
1. Use Technical Judge Advocate Channels ................. 85
2. Develop Skills for Inter-Agency Coordination .......... 89
3. Maintain Close and Open Communications With
the ICRC and other Nongovernmental Agencies ..... 93
H. Civil Affairs ................................................................... 97
1. Ensure That the Staff Judge Advocate is the Sole
Advisor to the Command on Its Legal Obligations ... 99
2. Understand All Three Legs in the Stool of the
Justice System ........................................................... 102
3. Be Prepared to Mentor Foreign Judges and
Ministry Officials ...................................................... 105
I. Criminal Law .................................................................. 107
1. Seek Court-Martial Convening Authority for the
Joint Task Force Commander Over All Members
of the Joint Task Force ............................................. 109
LAW AND MILITARY OPERATIONS IN HAITI, 1994-95 iii
2. Emphasize to Soldiers That Neither General
Guidance from the President Nor Personal
Feelings Will Justify Disobedience ........................... 112
3. Be Prepared to Conduct Courts-Martial in the Area
of Operations ............................................................. 115
J. Legal Assistance ............................................................. 116
1. Expect the Rush in Demand for Wills ....................... 118
2. Educate Soldiers That Deployment Does Not
Dissolve Their Debts ................................................. 119
3. Discourage General Powers of Attorney ................... 122
K. Administrative Law ........................................................ 124
1. Advise Commander to Announce Clear and
Straightforward Guidance on “War Trophies” ......... 127
2. Brace for the Flood of Questions About Eligibility
to Obtain Medical Care, Use the Post Exchange,
and Travel in Military Aircraft ................................. 129
3. Take Initiative to Assist Officers Conducting
Official Investigations ............................................... 131
L. Procurement Law and Fiscal Constraints ..................... 132
1. Know the Terms and Conditions of the LOGCAP .... 134
2. Expect Second-Guessing About Advance Payments
on Acquisitions .......................................................... 136
3. Step Forward to Ensure that Operational Funds
are not Expended for Unauthorized Purposes .......... 138
4. Understand the Status of Civilian Contractor
Employees ................................................................. 142
M. Claims ........................................................................... 144
1. Appoint Many Judge Advocates to Foreign Claims
Commissions ............................................................. 146
2. Make Linguist Support and Protection of
Claimants Leadership Priorities ................................ 148
3. Expect Misdirected and Exaggerated Claims ........... 150
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N. Reserve Components ..................................................... 152
1. Assist the Command in Developing a Knowledge
Base About Individual Mobilization Augmentees
and in Securing Individual Reservists With Special
Skills .......................................................................... 154
2. Forge Strong Training and Mutual Support
Relationships with Reserve Units .............................. 157
O. Equipment and Military Training ................................. 158
1. Pack Footlockers Ahead of Time With Forms and
References, to Include Fiscal Law and Intelligence
Law Materials ........................................................... 160
2. Deploy With 486 Laptops Having Software Used
By the Rest of the Staff and Having
Communications and CD-ROM Reading
Capability .................................................................. 162
3. Conduct Individual Soldier and Officer Training
on Such Things as First Aid, Vehicle and Weapon
Primary Maintenance, and Writing Messages .......... 166
P. Staff Procedures and Operations ................................... 167
1. Keep a Log of All Significant Actions ....................... 168
2. Maintain a Binder With Messages and Other
Authorities Relating to the Operation ....................... 169
3. Obtain Top-Secret Security Clearances for the
Staff Judge Advocate, Deputy Staff Judge
Advocate, and Operational Law Attorneys ................ 170
IV. Conclusion ........................................................................ 171
Appendix A: Governors Island Agreement ............................. 174
Appendix B: Security Council Resolution 940 ........................ 177
Appendix C: Carter-Jonassaint Agreement ............................ 182
Appendix D: President Clinton Speech of 31 March 1995 ..... 184
Appendix E: Legal Personnel Deployed .................................. 189
Appendix F: Judge Advocates Significantly Involved ............. 197
LAW AND MILITARY OPERATIONS IN HAITI, 1994-95 v
Appendix G: ROE Soldier Card for Nonpermissive Entry ..... 200
Appendix H: ROE Operation Plan Annex .............................. 203
Appendix I: ROE Soldier Card, 6 September 1994 ................. 213
Appendix J: ROE Soldier Card, 23 September 1994 .............. 215
Appendix K: ROE Vignette Training Sheets............................ 217
Appendix L: ROE Training Card, 82d Airborne Div .............. 235
Appendix M: Full Text ROE for UNMIH .............................. 237
Appendix N: ROE Soldier Card for UNMIH .......................... 250
Appendix O: SOFA for MNF .................................................. 255
Appendix P: SOMA for United Nations Mission in Haiti ....... 273
Appendix Q: Bilateral SOFA Between United States and
Haiti ................................................................... 292
Appendix R: Memorandum of Agreement on Detention
Facility ............................................................... 295
Appendix S: Nongovernmental Organizations in Haiti .......... 297
Appendix T: Correspondence Pertaining to Appointment of
Force Commander, UNMIH ............................. 299
Appendix U: General Order Number 1 ................................... 312
Appendix V: Congressional Testimony on Rockwood Case ... 332
Appendix W: Form Used to Process Requests for Air
Transport ........................................................... 344
Appendix X: Section 607 Agreement Between the United
States and Haiti .................................................. 347
Appendix Y: Claims Accident SOP ......................................... 354
Appendix Z: Claims Accident Form ....................................... 356
Appendix AA: Presidential Callup of Selected Reserve .......... 357
Appendix BB: Responses to Survey on Equipment and
Training .............................................................. 359
Appendix CC: Excerpt From Daily Events Log Maintained
by the 10th Mountain Division ............................ 373
Appendix DD: Excerpt From Daily Events Log Maintained
by the 25th Infantry Division .............................. 402
Appendix EE: Extract of Events Recorded in SJA Office
Log of the United States Forces Haiti.................. 415
vi CENTER FOR LAW AND MILITARY OPERATIONS
Figures
Figure 1: Deployment of Forces Into Haiti ............................ 19
Figure 2: UNMIH Regions ...................................................... 22
Figure 3: CJTF-180 Legal Organization (D+1) ...................... 27
Figure 4: CJTF-190 Legal Organization (D+4) ...................... 28
Figure 5: MNF Legal Organization (D+35)............................. 29
Figure 6: MNF Legal Organization (D+120) .......................... 29
Figure 7: UNMIH Legal Organization .................................... 30
Figure 8: Categories of Lessons Learned................................. 31
Figure 9: Three Legs of the Stool of Justice System................. 102
Summary
With this report, the Center for Law and Military Operations
identifies lessons learned for judge advocates from United States
military operations in Haiti during 1994 and 1995. The report focuses
on providing guidance and practical considerations within the sphere
of control of judge advocates who may be deployed. The Center
prepared the report based on after action reports submitted by judge
advocate sections involved in the operation, on materials gathered
during a three-day conference attended by participants, on interviews
of individual judge advocates who deployed, and on other sources.
The Center finds that the Corps delivered legal services well in every
functional area, and that doctrine for legal operations is fundamentally
sound. Among other suggestions, the Center recommends that judge
advocates help develop situational training on rules of engagement,
make frequent use of technical channels, step forward to ensure
operational funds are not expended for unauthorized purposes, acquire
and study legal references pertaining to fiscal law, and keep a log of
all significant actions.
LAW AND MILITARY OPERATIONS IN HAITI, 1994-95:
LESSONS LEARNED FOR JUDGE ADVOCATES
I. Introduction
United States military operations in the Republic of Haiti in 1994
and 1995 represented a comprehensive and stunningly successful
application of law to fluid and challenging circumstances. Many
Americans will recall the tense beginning, when a large combat force
entered Haiti peacefully on terms negotiated in the 11th hour by duly
empowered civilian representatives of the United States. Many Americans
also will recall how these operations soon achieved the ouster of a dictator,
the return to power of an elected Haitian president, and the removal of a
threat to regional peace and security.1 These aspects of the Haiti
deployment not only reaffirmed the rule of law, 2 they also held a symbolic
and political importance that aroused great popular interest.
Yet other significant applications of law took place day-to-day, at
the individual and unit level. Infantry privates balanced initiative with
restraint under the rules of engagement while confronting potentially hostile

1 See infra notes 140-142 and accompanying text.
2 In this report, “law” and the “rule of law” refer to notions of justice generally taken for
granted today among western developed nations but not necessarily found in underdeveloped
countries, such as Haiti. Hereinafter “law,” when used outside the context of a specific rule or
statute, will connote any or all of three meanings: an autonomous body of rules, independent from
(though influenced by) religion, morality, and other social norms; a vehicle for ordering society
and resolving disputes; something which regulates the conduct of governments as well as of
individuals. See RUDOLPH B. SCHLESINGER, COMPARATIVE LAW: CASES, TEXT, MATERIALS 80
(Supp. 1994 to 5th ed.). “Rule of law” will connote the notion of a “law-governed” state or
community, which in addition to institutional arrangements—such as judicial review of legislative
acts or civilian control of the military—demands “a disposition to take law seriously, a concern
with process and with following forms, as much as with substantive results.” Id. at 77. In finding
that the Haiti intervention reaffirmed the rule of law, this report directly contradicts the view that
respect for laws will cripple future military operations. See, e.g., Ralph Peters, After the
Revolution, PARAMETERS, Summer 1995, at 7, 13 (“Attempts to bring our wonderful, comfortable,
painstakingly humane laws and rules to bear on broken countries drunk with blood and anarchy
constitute the ass end of imperialism.”).
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