Rule of law Handbook, 2010, A Practitioner's Guide for Judge Advocates

332 Pages·2010·2.46 MB·English

RRUULLEE OOFF LLAAWW

HANDBOOK
A Practitioner's Guide for Judge Advocates
THE  JUDGE  ADVOCATE  GENERAL’S 
LEGAL  CENTER  & SCHOOL, U.S. ARMY 
CENTER FOR LAW AND MILITARY OPERATIONS 
2010
RULE OF LAW HANDBOOK

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES

2010

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

Center for Law and Military Operations

Charlottesville, Virginia 22903

[email protected]

[email protected]
The 2010 Rule of Law Handbook is dedicated to all those who promote the rule of law in the most difficult of
circumstances, especially the members of the U.S. Armed Forces as well as our interagency and coalition
partners.
RULE OF LAW HANDBOOK

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES

2010

Although the Center for Law and Military Operations publishes the Rule of Law Handbook, it is the product
of contributions by dozens of authors from a multitude of agencies, U.S., foreign, and non-governmental—
military and civilian—over the course of several years. Before CLAMO took over sole publication in 2008,
the Handbook was a joint publication of CLAMO and the Office of the Joint Judge Advocate at Joint Forces
Command. But even that shared publication arrangement inadequately represents the breadth of
contributions from other agencies. It would be difficult to list all who have contributed to the development
of this, the fourth edition of the Handbook. Official clearance processes required by some agencies required
to ascribe individual authorship credit makes doing so even less practical. The current editors are indebted to
both our past and current contributors and look forward to working closely with them in the future.

Cover design by Dr. iur. Katharina Ziolkowski, LL.M. (UNSW)

Cover photograph provided by Capt Robert Boudreau, U.S.M.C.

The contents of this publication are not to be construed as official positions, policies, or decisions of the
United States Government or any department or agency thereof.

Rule of Law Handbook - 2010
PREFACE

America’s commitment to the rule of law is fundamental to our efforts to build an international order
1
that is capable of confronting the emerging challenges of the 21st century.
This volume is the fourth edition of the Rule of Law Handbook published by the Center for Law and Military
Operations (CLAMO) at The Judge Advocate General’s Legal Center and School (TJAGLCS). Much has
changed since the publication of the first volume in July of 2007. At that time, “surge” operations in Iraq
had just begun and the eventual outcome of that tremendous commitment of resources was far from certain.
The fight in Afghanistan, while no less important, drew relatively little in the way of public attention.
In the three years since, violence in Iraq has dropped precipitously, allowing the Iraqi people to assert their
rightful sovereignty in very real and dynamic ways. American forces have withdrawn from Iraqi cities, will
end their combat mission in August of 2010, and completely exit Iraq by the end of 2011.2 Afghanistan is
now at the forefront of public attention as it experiences its own surge of resources designed to move it down
a similar path to success before U.S. combat forces possibly begin reducing their presence in July of 2011.3
Throughout these changes in circumstances, Judge Advocates and their joint, interagency, and multinational
partners have quietly gone about advancing the rule of law (RoL) in these locations and others. However, as
our military commitments in Iraq and Afghanistan wane or will soon wane, it is fair to ask if there is still a
need for Judge Advocates to concern themselves with the rule of law mission. To answer anything other
than “Yes!” would be shortsighted4 and unrealistic given our history and hope for the future.
Chapter 1 of the present handbook presents some of that history. It describes how Judge Advocates have
been involved in rule of law efforts for over a century. It also makes clear how fertile the post-conflict
ground is for cultivating the rule of law. When security is no longer the most pressing need, rule of law
efforts can truly flourish.5 We are well past the conflict stage in Kosovo, yet Judge Advocates are still there
participating in rule of law missions in welcome partnership with civilian practitioners.6 It is no doubt the
sincere hope of all rule of law practitioners that the environments in Iraq and Afghanistan one day will
similarly be so benign as to make ongoing rule of law efforts there “un-newsworthy.”
While rule of law efforts may become more or less newsworthy depending on the circumstances, they will
always be important. One of the fourteen references to “rule of law” in the current National Security
Strategy holds rule of law as one of the “essential sources of our strength and influence in the world.”7 To

1 The White House, National Security Strategy, 37 (May 2010), available at
http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (last visited July 27, 2010).
2 Id. at 25.
3 Id. at 21.
4 See, e.g. Center for Law and Military Operations, Brigade Judge Advocate Symposium Report, at 5 (May 2010) (“RoL
is one area where JAs [Judge Advocates] have the opportunity to act as a force multiplier, instead of simply fulfilling
their traditional advisory role.”), available at https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge
Online authentication required).
5 Id. (“When a security situation is poor, trying to advance a sweeping RoL plan may be too optimistic. RoL needs an
improved security situation with stability to be able to proceed. It is difficult to find judges and prosecutors willing to
risk their lives in places where violence and death threats are common.“).
6 Task Force Falcon, 40th Infantry Division, California National Guard, Office of the Command Judge Advocate, After
Action Report, Kosovo Forces 11, Deployed February 2009 – November 2009, at 6 (9 January 2010) (“Trainers actively
discouraged participation in RoL activities for fear the unit might step on the toes of EULEX [European Union Rule of
Law Mission in Kosovo]. . . . When TFF [Task Force Falcon] attorneys began working in this area, the EULEX and
UN lawyers welcomed the help and wondered aloud why TFF attorneys had not come aboard in this area earlier.”),
available at https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge Online authentication required).
7 The White House, supra note 1, at 2.
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Rule of Law Handbook - 2010
maintain that strength and influence, rule of law will undoubtedly remain part of Judge Advocate practice
into the future.
The 2010 Edition
This edition of the Handbook is not a complete re-write of the 2009 version. It does contain, however,
updates and improvements throughout. Many members of the interagency team have devoted time and effort
to ensuring the sections describing their agencies and spheres of influence are current. We here at CLAMO
are deeply in their debt.
Some chapters, by their nature, require updating every year. Funding sources and authorities change from
year to year, and sometimes even more often! Any chapter on funding rule of law operations necessarily
must also change. Chapter 7 presents the authorities in place as of this writing. As one Fiscal Law instructor
here at The Judge Advocate General’s School has remarked, “It is all theoretical until you figure out how to
pay for it.”
Chapter 5 on Sharia law and combined legal systems also appears in a substantially reorganized and revised
form. It provides a broad introduction to the subject. Space constraints in a handbook of this size preclude
covering this rich subject in great detail, but the chapter’s footnote references will prove exceptionally
valuable for practitioners desiring to do further reading.
This edition is not devoid of entirely new material, though. There are completely new sections in addition to
the history chapter already mentioned. For example, practitioners have long struggled with how to
objectively and effectively measure progress (or the lack thereof) in rule of law operations. Chapter 9 on rule
of law metrics may help inform this process. Chapter 10 is also new and describes how practitioners could
use Human Terrain Teams to help design rule of law projects.
As always, the handbook presents the recent experiences of those actively involved in the rule of law
mission. This year the offerings are as diverse as the rule of law mission itself. One article provides a
British perspective on supporting the informal justice sector in Helmand Province, Afghanistan. In another,
an Air Force practitioner provides her perspective on the Central Criminal Court of Iraq. A Department of
Justice attorney also describes the success of the Counter-Narcotics Justice Task Force in Afghanistan.
One U.S. Army Judge Advocate shares her division’s efforts to bridge the gap between the Kurdish and Arab
judicial systems in northern Iraq. Another depicts brigade-level efforts in eastern Afghanistan, while still
another recounts division-level efforts in Baghdad, Iraq. Outside of conventional forces, an Asymmetric
Warfare Group Judge Advocate details his role in a rule of law effort developed in coordination with the
Department of State’s International Narcotics & Law Enforcement, Afghanistan’s National Directorate of
Security, and Afghanistan’s Office of the Attorney General. Finally, a Judge Advocate advising a Special
Forces battalion portrays his experiences with the rule of law mission in a fluid environment.
The Nature of a Handbook for Judge Advocates
The Handbook is not intended to serve as U.S. 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. Written primarily for Judge Advocates, the limits of its scope and purpose are to provide the
military attorney assistance in accomplishing the rule of law mission. 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 Handbook does 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 The Judge Advocate General’s Legal Center and
Preface ii
Rule of Law Handbook - 2010
School (TJAGLCS),8 documents written by other agencies extensively cover many resources providing
information on rule of law activities. The Handbook references many of these. Any Judge Advocate
deploying in support of the current conflict should make reading some of these a requirement. They include
Field Manual 3-24, Counterinsurgency (2006), Field Manual 3-07, Stability Operations (2008), and the
USMC Small Wars Manual (1940). Moreover, the design of the Handbook intends its use with other
references familiar to Judge Advocates, such as the Operational Law Handbook (2010), and Field Manual 1­
04, Legal Support to the Operational Army (2009).
In addition, within the Army, Civil Affairs units have often performed rule of law activities, 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 food for thought and points to some resources, but it is no substitute for flexibility, intelligence, and
resourcefulness. The intent is the Handbook 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.

8 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.ellc.learn.army.mil/ (last visited
July 27, 2010).
iii Preface
Rule of Law Handbook - 2010

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Rule of Law Handbook - 2010

TABLE OF CONTENTS

Chapter 1: The Rule of Law and Judge Advocates: A Short History .............................................................. 1

I.   Rule of Law as the Foundation of the United States ............................................................ 1

II.   Rule of Law efforts in the Philippines and Cuba (1898-1902) ............................................. 2 

III.   Rule of Law efforts in Germany and Japan (1945-1950) ..................................................... 4

IV.   The Rule of Law in Southeast Asia (1964-1973) ................................................................. 5

V.   Rule of Law Operations in Afghanistan and Iraq (2001 to present) ..................................... 6 

Chapter 2: Defining the Rule of Law Problem ................................................................................................ 9

I.   Describing the Rule of Law................................................................................................ 10 

A.   Definitions of the Rule of Law ................................................................................. 10 

B.   A Definition of the Rule of Law for Deployed Judge Advocates ............................. 11 

C.   Formalist vs. Substantive Conceptions of the Rule of Law ...................................... 17 

II.   Rule of Law Operations ...................................................................................................... 18 

A.   Rule of Law Operations Within the Context of Full Spectrum Operations .............. 19 

B.   Operational Impact ................................................................................................... 22 

C.   The Importance of Focusing on Effects .................................................................... 23 

Chapter 3: Key Players in Rule of Law ......................................................................................................... 25 

I.   U.S. Policy and Players – Interagency Coordination.......................................................... 26 

II.   Post-Conflict Interagency Structure ................................................................................... 26 

A.   U.S. National Security Presidential Directive 1 (NSPD-1) ...................................... 27 

B.   U.S. National Security Presidential Directive 44 (NSPD-44) and the

Reconstruction and Stabilization Civilian Management Act of 2008 ....................... 27 

C.   Department of Defense Directive 3000.5 ................................................................. 30

D.   U.S. Agencies Influencing Post-Conflict Operations ............................................... 32 

III.   U.S. Governmental Agencies Involved in Rule of Law ..................................................... 36 

A.   Department of State .................................................................................................. 37 

B.   U.S. Agency for International Development (USAID) ............................................. 41 

C.   Department of Justice (DOJ) .................................................................................... 53 

D.   Department of Defense (DOD)................................................................................. 58 

E.   United States Institute of Peace (USIP) .................................................................... 63 

IV.   International Actors ............................................................................................................ 64 

A.   United Nations .......................................................................................................... 65 

B.   International Monetary Fund (IMF) .......................................................................... 66 

C.   World Bank............................................................................................................... 68 

D.   The North Atlantic Treaty Organization (NATO) .................................................... 70 

E.   Non-Governmental Organizations (NGOs) .............................................................. 75

F.   Coalition Partners ..................................................................................................... 76 

Chapter 4: The International Legal Framework for Rule of Law Operations ................................................ 81

I.   Identifying a Rule of Law Legal Framework ..................................................................... 81 

A.   United Nation (UN) Mandates.................................................................................. 81 

B.   Mandates Pursuant to Bilateral and Multi-lateral Agreements ................................. 84 

C.   Mandates Pursuant to National Legislation .............................................................. 85

II.   The Rule of Law Legal Framework .................................................................................... 85 

A.   The Law of War........................................................................................................ 85

B.   Occupation Law........................................................................................................ 87 

C.   Human Rights Law ................................................................................................... 88 

v Table of Contents