Rule of law handbook a practitioner's guide for judge advocates

310 Pages·2008·14 MB·English

RULE OF LAW HANDBOOK

A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES

2008
The Judge Advocate General's Legal Center and School, U.S. Army

Center for Law and Military Operations

Charlottesville, Virginia 22903
The 2008 edition of the Rule of Law Handbook is dedicated
to the memory of
Charles R. Oleszycki
1944-2008

Colonel, USMCR (Ret.)

Editor of the 2007 edition of the Rule of Law Handbook

and U.S. Dept. of State representative to CLAMO, 2005-2007
RULE OF LAW HANDBOOK

A PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES

2008

EDITORS

Ms. Katherine Gorove, U.S. Dept. of State representative to CLAMO

CPT Thomas B. Nachbar, USAR

CONTRIBUTORS

MAJ Kris Ailslieger Maj J. Porter Harlow, USMC
MAJ Marie Anderson Mr. Nils Kuhnert, German MOD
LTC JaneElien Bagwell CPT Rachel Landsee
MAJ Rose Bennett Maj David C. Morzenti, USMC
LTC Joseph B. Berger III MAJ Joseph N. Orenstein
COL Margaret S. Bond, USAR BG (Ret.) Coral Wong Pietsch
LTC E. Edmond Bowen, Jr. LTC Charles C. Poche
CPT Adam Brake, USAR MAJ Sara Root
MAJ Robert A. Broadbent LTC(P) C.W. Royer, USAR
MAJ Jose Cora COL (Ret.) David Shakes, USAR
MAJ Marla Dow, Canadian Forces Lt Col Alex Taylor, British Army
CPT Matthew Festa, USAR LTC Robert P. Vasquez
LTC Allen Goshi Prof. Mark Welton, USMA
as well as numerous past editors and contributors
to the Rule of Law Handbook
with particular recognition of MAJ Carlos Santiago, a contributor to the 2007 edition of the
Rule of Law Handbook whose name was inadvertently omitted from the list of contributors
Cover design by Mary Wood
The contents ofthis publication are not to be construed as official positions, policies, or decisions ofthe United
States Government or any department or agency thereof.
TIDS PAGE INTENTIONALLY BLANK
Preface
Why a Practitioner's Guide
The Judge Advocate General's Legal Center and School (TJAGLCS) trains and educates
military, civilian, and international personnel in legal and leadership skills; develops doctrine and
captures lessons learned; and conducts strategic planning in order to provide trained and ready
legal personnel, imbued with the Warrior Ethos, to perfonn the JAGC mission in support of a
Joint and Expeditionary Force. Within TJAGLCS, the Center for Law and Military Operations
(CLAMO) specializes in the collection of after action reports (AARs) from Judge Advocates and
paralegals recently returned from deployments. There are two constantly re-occurring themes
that surface in these AARs. The first is that commanders naturally tum to their legal experts to
plan, execute, coordinate, and evaluate rule of law efforts. The second is that no comprehensive
resource exists to assist practitioners in fulfilling this task.
It is highly likely the Global War on Terror (GWOT) will require the US military to
engage in operations that include rule of law operations as an essential part of the overall
mission. The tenn was mentioned nine times in the 2002 National Security Strategy, and sixteen
times in the 2006 National Security Strategy (NSS). As the 2002 NSS explains:
America must stand finnly for the nonnegotiable demands of human dignity: the
rule of law; limits on the absolute power of the state; free speech; freedom of
worship; equal justice; respect for women; religious and ethnic tolerance; and
respect for private property.!
While there is little debate over the need for such a practitioner's guide, there is little else
in the rule of law arena upon which there is widespread agreement. There are divergent, and
often conflicting, views among academics, various USG agencies, US allies and even within the
Department of Defense (DOD), as to whether to conduct rule of law operations, what constitutes
a rule of law operation, how to conduct a rule of law operation, or even what is meant by the
tenn "rule of law." As in the case of any emerging area of legal practice or military specialty,
doctrine is non-existent, official guidance is incomplete, and educational opportunities are
limited.
While acknowledging the above challenges, the Judge Advocate General's Corps
leadership still recognizes the inevitability that Judge Advocates on the ground under
extraordinarily difficult conditions will be called upon to support, and even directly participate in
and lead, rule of law operations. The JAG Corps owes these lawyers at the tip of the spear
practical guidance in the fonn of a resource that contains at least the fundamentals of how to
establish the rule of law in the context of a US military intervention. That, then, is the genesis,
purpose, and rationale for this, The Rule ofLaw Handbook: A Practitioner's (Juide for Judge
Advocates.
What is agreed upon by almost every individual who has worked in this area is that joint,
inter-agency and multinational coordination is the basic foundation upon which all rule of
I The National Security Strategy of the United States 3 (2002). See also The National Security Strategy of
the United States (2006), available at http://www.whitehouse.gov/nsc/ns.s.html.
Rule ofLaw Handbook
law efforts must be built In the past, military services, US government agencies, and coalition
partners have often conducted the rule of law mission in isolation. History has shown, however,
that such an approach often results in much energy expended in a wasted effort. To maximize
rule of law reform efforts, we must achieve synchronization and integration across the spectrum
of rule oflaw. Indeed if the reader takes nothing else from this Handbook, they should recognize
this one central concept. Without coordination with other participants in the rule of law arena,
the efforts of a single contributor in isolation are at best less than optimal and at worst counter­
productive to the overall rule of law reform objectives being pursued. Quite simply, coordination
and synchronization is to the rule of law effort what fires and maneuver is to the high intensity
conflict.
The Nature ofa Handbookfor Judge Advocates
The Handbook is not intended to serve as US policy or military doctrine for rule of law
operations.
Nor is the Handbook intended to offer guidance or advice to other military professionals
involved in the rule of law mission. It was written primarily by Judge Advocates for Judge
Advocates and its scope and purpose is limited to providing the military attorney assistance in
accomplishing the rule of law mission. Moreover, the vast majority of Judge Advocates will
engage in rule of law activities in the context of US military interventions, and the Handbook
was written with that context in mind. It is not a general guide to conducting rule of law
assistance in host nations lacking a substantial, active US military presence. While others
involved in rule of law missions may find the Handbook helpful, they should understand its
intended audience is the Judge Advocate or paralegal involved in the rule of law mission during
on-going military operations.
The goal of the Handbook is to go beyond a mere recitation of recent lessons learned
about rule of law operations from Judge Advocates who had participated in such missions. While
useful for understanding what we have accomplished (and failed to accomplish) to date, standing
alone they simply lack the refinement and comprehensive analysis to truly assist the practitioner.
But it would also be impractical to make the Handbook a legal text to debate the pros and
cons of the different types and approaches to rule of law missions. While a solid foundation in
the theory of what rule of law is and its overall goals is important for the practitioner, theory
without practice is like faith without works - empty and meaningless.
The Handbook is intended not to serve as a complete solution, but rather as a starting
place and a supplement for other materials. In addition to courses available through TJAGLCS,z
there are many resources for information on rule of law activities are covered extensively in
documents written by other agencies, many of which are referenced throughout the Handbook.
Some documents are required reading for any Judge Advocate deploying in support of the
current conflict,such as Field Manual 3-24, Counterinsurgency (2006), Field Manual 3-07,
Stability Operations (currently in revision), the USMC Small Wars Manual (1940). Moreover,
the Handbook is designed to be used with other references familiar to Judge Advocates, such as
2 TJAGLCS offers two residential programs, the one-week Rule of Law Short Course and a rule of law
elective to its Graduate Course, as well as online training via JAG University, available at
https://jag.learn.army.mil.
ii
Rule ofLaw Handbook
the Operational Law Handbook (2008), and Field Manual 1-04, Legal Support to the
Operational Army (currently in revision).
In addition, within the Anny, rule of law activities have often been performed by Civil
Affairs units, and their doctrine discusses them in detail. Both Field Manual 3-05.40, Civil
Affairs Operations (2006) and Joint Publication 3-57, Civil-Military Operations (2008) are also
very helpful reading for the Judge Advocate deploying to support rule of law projects.
Nevertheless, no course, handbook, or manual can provide a Judge Advocate a
"cookbook solution" for how to support the development of the rule of law in a deployed
environment. This Handbook hopefully provides both some food for thought and points to some
resources, but it is no substitute for flexibility, intelligence, and resourcefulness. Hopefully, the
Handbook will serve as an educational resource for Judge Advocates who are preparing to
practice in the field. Even if the Handbook only serves as an introductory resource to further
Judge Advocates' professional education on the topic, it will have served a vital purpose.
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Rule ofLaw Handbook
Table ofContents
Preface i

Why a Practitioner's Guide i

The Nature of a Handbook for Judge Advocates ii

Foreword ix

The Rule of Law and Judge Advocates: A Short History ix

I. Introduction 1

II. Defining the Rule of Law Problem 3

A. Describing the Rule of Law 4

1. Definitions of the Rule of Law 4

2. A Definition of the Rule of Law for Deployed Judge Advocates 5

3. Formalist vs. Substantive Conceptions of the Rule of Law 14

B. Rule of Law Operations 15

1. Rule of Law Activities Within the Context of Full Spectrum Operations 16

2. Operational Impact.. 19

3. The Importance ofFocusing on Effects 21

III. Key Players in Rule ofLaw 23

A. US Policy and Players - Interagency Coordination 24

B. Post-Conflict Interagency Structure 24

1. US National Security Presidential Directive 1 (NSPD-l) 25

2. US National Security Presidential Directive 44 (NSPD-44) 26

3. Department of Defense Directive 3000.5 29

4. US Officials Influencing Post-Conflict Operations 32

C. US Governmental Agencies Involved in Rule of Law 35

1. Department of State 36

2. United States Agency for International Development (USAID) 40

3. Department ofJustice (DOJ) 43

4. Department of Defense (DOD) 48

D. US Embassy and its Country Team , 53

E. United States Institute of Peace (USIP) 54

F. International Actors 56

1. United Nations 56

2. International Monetary Fund (IMF) 58

3. World Bank 59

4. The North Atlantic Treaty Organization (NATO) 60

G. Non-Governmental Organizations (NGOs) 62

H. Coalition Partners 64

1. Coalition Restrictions 65

IV. The International Legal Framework for Rule of Law Operations 71

A. Identifying a Rule of Law Legal Framework 71

1. United Nation (UN) Mandates 71

2. Mandates Pursuant to Bilateral and Multi-lateral Agreements 75

3. Mandates pursuant to National Legislation 75

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Rule ofLaw Handbook
B. The Rule of Law Legal Framework 75

I. The Law of War 76

2. Occupation Law 77

3. Human Rights Law 79

C. Conclusion 82

V. The Institutional and Social Context for the Rule of Law 83

A. Legal Institutions 83

I. Legislatures 83

2. Courts 85

3. Police 90

4. Detention and Corrections 93

5. Military Justice 95

B. Civil Law Systems 97

I. The Civil Law Ideal of Separation of Powers 98

2. Specific Aspects of Civil Law 99

3. Recommended Readings 104

C. Religious Legal Systems and Sharia Law 104

D. Combined Systems 110

E. Recognized Alternatives to the Court System 110

1. Mediation 110

2. Arbitration 111

3. Other Traditional Remedies 112

4. Truth and Reconciliation Commissions 112

5. Property Claims Commissions 113

F. The Implications of Gender for Rule of Law Programs 114

G. Civil Society 118

1. Operational Objectives for Engaging, Leveraging, and Supporting Civil Society 119

2. How to Engage with Civil Society in Rule of Law 119

3. Conducting a Baseline Assessment in this Sector 121

4. Common Challenges and Lessons Learned to Guide Implementation 122

H. Non-State Security Providers 124

I. Assessing the Role ofNon-State Security Providers 126

2. Ten Lessons Learned 129

VI. Planning for Rule ofLaw Operations 131

A. The Military Planning Process 131

1. Why Planning is Important 131

2. What is Planning? 132

3. The Military Decision Making Process 133
c
4. Conclusion 146

B. Practical Planning Considerations Specific to Rule of Law Operations 147

I. Pre-deployment Planning (-180 to -30 D day) 148

2. Initial Deployment Planning (-30 to +90 D day) 153

3. Sustained Deployment Planning (+91 to indefinite) 156

C. Practical Approaches for Conducting Assessments within Rule of Law Activities 158

I. Assessments During the Pre-deployment Phase (-180 to -30 D day) 159

2. Assessments During Initial Deployment (-30 to +90 D day) 160

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