THE JUDGE ADVOCATE GENERAL'S 

LEGAL CENTER lit SCHOOL, US. ARMY 

(ENTIR FOR LAW AND MILITARY OPERATIONS 

'... 
RULE OF LAW HANDBOOK 

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 

2009 

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

Center for Law and Military Operations 

Charlottesville, Virginia 22903 

clamo@conus.army.mil 

clamo@hqda-s.army.smil.mil 
The 2009 edition of the Rule of Law Handbook is dedicated 

to 

Katherine Gorove 

Editor of the 2008 edition of the Rule of Law Handbook 

and U.S. Dept. of State representative to CLAMO, 2007-2008 
 

RULE OF LAW HANDBOOK 

A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 

2009 

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, US, 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 third 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. 

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. 
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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 perform 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 reviews (AARs) from Judge Advocates, 

paralegals, and other legal professionals recently returned from deployments. These AARs reveal 

two constantly re-occurring themes. The first is that commanders naturally turn to their Judge 

Advocates 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 that ongoing overseas contingency operations will require the US 

military to engage in operations that include a rule of law component as an essential part of the 

overall mission. The 2002 National Security Strategy (NSS) mentioned the term nine times. In 

the 2006 NSS, the count was sixteen. As the 2002 NSS explains: 

America must stand firmly 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.1 

The current administration has also underscored its commitment to the rule of law. President 

Obama has remarked, “I believe that our nation is stronger and more secure when we deploy the 

full measure of both our power and the power of our values, including the rule of law.”2 

While there is little debate over the need for such a practitioner’s guide, little else in the 

rule of law arena garners 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 the term “rule of law” means. As 

in the case of any emerging area of legal practice or military specialty, doctrine is in its infancy,3 

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 

1

 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/nss.html. 

2

 President Barrack Obama, Address at Central Intelligence Agency Headquarters (Apr. 20, 2009), 

available at https://www.cia.gov/news-information/speeches-testimony/president-obama-at-cia.html (last 

visited Sept. 3, 2009). 

3 See U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY, 

Appendix D (Apr. 2009) (doctrine addressing rule of law activities and the issues related to rule of law 

activities in which judge advocates may become involved). 

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Rule of Law Handbook

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 form 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 of Law Handbook: A Practitioner’s Guide 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 

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 of law. 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 counterproductive 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 of a Handbook for 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. Written primarily by Judge Advocates for Judge Advocates, 

the limits of its scope and purpose are to provide 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 writing of the 

Handbook occurred 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 AAR comments 

about rule of law operations from Judge Advocates who had participated in such missions. These 

comments are useful for understanding what we have accomplished (and failed to accomplish) to 

date. Standing alone, however, they simply lack the refinement and comprehensive analysis to 

assist the practitioner truly. 

Nevertheless, 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 constitutes the rule of law is and its overall goals is important 

for the practitioner, theory without practice is of little utility when actually trying to take action. 

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Rule of Law Handbook

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 TJAGLCS,4

 documents 

written by other agencies extensively cover many resources for 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 

(2009), 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. 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. 

The 2009 Edition 

The 2009 edition of the Handbook is a minor update of the 2008 edition, with the 

exception of chapters X and XI, which have completely new narratives and project descriptions. 

Although there was a change of administration in early 2009 and there have been some important 

developments in the USG approach to reconstruction and stability operations, fairly little has 

changed from 2008 to 2009 in the principles behind the interagency approach to the rule of law. 

Instead, this year’s revision to the Handbook reflects practical changes in the operating 

environment. In particular, the advent of the US/Iraq Security Agreement in that country has 

substantially shifted the approach US units must take toward the rule of law there. The loss of 

United Nations Security Council Resolution authority for US forces to detain individuals means 

units operating in Iraq must necessarily engage the Iraqi legal system to a greater degree, which 

necessarily increases the priority of standing up the capacity of Iraq’s own legal system. The 

Handbook also echoes a shift in emphasis toward Afghanistan and the troop build-up there, with 

two of the three narratives in Chapter X coming from that country. Other changes in the 

environment since 2008 include the increased capacity of the US Embassies in both Afghanistan 

and Iraq and the increased centralization of efforts in both counties, with narratives from the 

embassy perspective in both theaters. 

4

 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. 

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Rule of Law Handbook

If it were possible to emphasize the interagency approach to rule of law more than the 

2008 edition did, the 2009 edition does. In addition to updates from several interagency partners 

(most especially the legislative authorization to stand-up the Civilian Response Corps) and the 

above-mentioned narratives from the embassy perspective, the Handbook also includes a project 

description from a civilian USG perspective. 

In many ways, the 2009 Handbook signals that both the theaters in which most JAs are 

undertaking rule of law missions, and the practices underlying those missions, are maturing. 

Many JAs in rule of law missions are on their second or third tour doing so. Long-promised 

civilian capacity is standing up, and JAs are now picking up existing rule of law projects rather 

than starting out on their own. To that end, the 2009 Handbook shifts some of its previous tone, 

which leaned toward the rule of law mission in the early stages of intervention and the 

“improvisational” nature of many rule of law programs. The reader of both the 2008 and 2009 

editions will also notice the changing nature of the projects units undertake. Today’s projects are 

less likely to be physical improvements to infrastructure and less focused on the security of those 

institutions. They are more likely to be interagency and much more likely to place substantial 

responsibility on the host nation (HN) participants. Many of the successful projects described in 

chapter IX do no more than simply help HN agencies build relationships with each other. 

It would be hard to overstate the number and variety of problems US forces and agencies 

have encountered and continue to encounter in the world of “rule of law.” We are starting to see 

some of the tangible benefits of that work as the security situation improves in Iraq. The hope of 

the 2009 edition of the Handbook is that the time has also come when we can reap the intangible 

rewards of learning we can clean from those hard experiences. 

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Rule of Law Handbook

Table of Contents 

Preface.............................................................................................................................................. i 

Why a Practitioner’s Guide........................................................................................................ i 

The Nature of a Handbook for Judge Advocates...................................................................... ii 

The 2009 Edition......................................................................................................................iii 

Foreword........................................................................................................................................ xi 

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

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 Operations Within the Context of Full Spectrum Operations............. 16 

2. Operational Impact................................................................................................... 19 

3. The Importance of Focusing on Effects................................................................... 21 

III. Key Players in Rule of Law................................................................................................. 23 

A. US Policy and Players – Interagency Coordination....................................................... 24 

B. Post-Conflict Interagency Structure............................................................................... 24 

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

2. US National Security Presidential Directive 44 (NSPD-44) and the Reconstruction 

and Stabilization Civilian Management Act of 2008............................................... 26 

3. Department of Defense Directive 3000.5 ................................................................ 29 

4. US Agencies Influencing Post-Conflict Operations ................................................ 32 

C. US Governmental Agencies Involved in Rule of Law .................................................. 36 

1. Department of State ................................................................................................. 36 

2. United States Agency for International Development (USAID) ............................. 41 

3. Department of Justice (DOJ) ................................................................................... 44 

4. Department of Defense (DOD)................................................................................ 49 

D. US Embassy and its Country Team ............................................................................... 54 

E. United States Institute of Peace (USIP)......................................................................... 56 

F. International Actors ....................................................................................................... 57 

1. United Nations ......................................................................................................... 58 

2. International Monetary Fund (IMF)......................................................................... 60 

3. World Bank.............................................................................................................. 61 

4. The North Atlantic Treaty Organization (NATO)................................................... 61 

G. Non-Governmental Organizations (NGOs) ................................................................... 63 

H. Coalition Partners........................................................................................................... 65 

1. Coalition Restrictions............................................................................................... 66 

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 

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Rule of Law Handbook

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

3. Mandates Pursuant to National Legislation ............................................................. 75 

B. The Rule of Law Legal Framework............................................................................... 76 

1. The Law of War....................................................................................................... 76 

2. Occupation Law....................................................................................................... 78 

3. Human Rights Law .................................................................................................. 79 

C. Conclusion ..................................................................................................................... 82 

V. The Institutional and Social Context for the Rule of Law................................................... 85 

A. Legal Institutions ........................................................................................................... 85 

1. Legislatures.............................................................................................................. 85
 

2. Courts....................................................................................................................... 87 

3. Police........................................................................................................................ 93 

4. Detention and Corrections ....................................................................................... 95 

5. Military Justice......................................................................................................... 98 

B. Civil Law Systems ....................................................................................................... 100 

1. The Civil Law Ideal of Separation of Powers........................................................ 101 

2. Specific Aspects of Civil Law ............................................................................... 102 

3. Recommended Readings........................................................................................ 107 

C. Religious Legal Systems and Sharia Law.................................................................... 107 

D. Combined Systems....................................................................................................... 112 

E. Recognized Alternatives to the Court System ............................................................. 113 

1. Mediation ............................................................................................................... 113 

2. Arbitration.............................................................................................................. 114
 

3. Other Traditional Remedies................................................................................... 114 

4. Truth and Reconciliation Commissions................................................................. 115 

5. Property Claims Commissions............................................................................... 116 

F. The Implications of Gender for Rule of Law Programs .............................................. 117 

G. Civil Society................................................................................................................. 121 

1. Operational Objectives for Engaging, Leveraging, and Supporting Civil Society 122 

2. How to Engage with Civil Society in Rule of Law ............................................... 122 

3. Conducting a Baseline Assessment in this Sector ................................................. 124 

4. Common Challenges and Lessons Learned to Guide Implementation.................. 126 

H. Non-State Security Providers....................................................................................... 127 

1. Assessing the Role of Non-State Security Providers............................................. 129 

2. Ten Lessons Learned ............................................................................................. 131 

VI. Planning for Rule of Law Operations ................................................................................ 135 

A. The Military Planning Process..................................................................................... 135 

1. Why Planning is Important .................................................................................... 135 

2. What is Planning? .................................................................................................. 136 

3. The Military Decision Making Process ................................................................. 137 

4. Conclusion ............................................................................................................. 150 

B. Practical Planning Considerations Specific to Rule of Law Operations...................... 151 

1. Pre-deployment Planning (-180 to -30 D day)....................................................... 152 

2. Initial Deployment Planning (-30 to +90 D day)................................................... 162 

3. Sustained Deployment Planning (+91 to indefinite).............................................. 165 

C. Practical Approaches for Conducting Assessments within Rule of Law Operations.. 168 

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1. Assessments During the Pre-deployment Phase (-180 to -30 D day).................... 169 

2. Assessments During Initial Deployment (-30 to +90 D day) ................................ 170 

3. Assessments During Sustained Deployment (+90 D day to indefinite) ................ 173 

D. Practical Approaches for Measuring Progress within Rule of Law Operations .......... 181 

1. Pre-deployment Metrics......................................................................................... 181 

2. Initial Deployment Metrics (-30 D day to +90)..................................................... 182 

3. Metrics During Sustained Deployment (91+ D day to indefinite)......................... 183 

E. Interagency Reconstruction and Stabilization Planning Framework........................... 185 

1. Introduction............................................................................................................ 185 

2. The State Department’s Five-Sector Framework for Reconstruction and 

Stabilization ........................................................................................................... 186 

3. The Army Primary Stability Tasks ........................................................................ 189 

4. Conclusion ............................................................................................................. 192 

F. Conclusion ................................................................................................................... 192 

VII. Fiscal Considerations in Rule of Law Operations ............................................................. 193 

A. Purpose......................................................................................................................... 195 

1. Introduction............................................................................................................ 195 

2. General Prohibition on Retaining Miscellaneous Receipts and Augmenting 

Appropriations ....................................................................................................... 195 

B. Funding US Military Operations (FUSMO) and Rule of Law Activities.................... 197 

1. Foreign Assistance Generally ................................................................................ 197 

2. Department of State Appropriations for Rule of Law Activities........................... 199 

3. Department of State Economic Support Fund ....................................................... 200 

4. Bureau of International Narcotics and Law Enforcement Affairs Funding........... 203 

C. Department of Defense Appropriations for Rule of Law Operations.......................... 205 

1. Iraq Security Forces Fund (ISFF) / Afghanistan Security Forces Fund (ASFF) ... 205 

2. Commander’s Emergency Response Program (CERP)......................................... 207 

3. Iraqi Funded Commander’s Emergency Response Program (I-CERP)................. 209 

D. Funding Rule of Law Operations Through Provincial Reconstruction Teams............ 210 

1. Provincial Reconstruction Teams and Embedded Provincial Reconstruction Teams
 

................................................................................................................................ 210 

2. Funding Rule of Law Operations via PRTs, ePRTs and other CMOs................... 212 

VIII. Challenges to the Rule of Law........................................................................................... 215 

A. Security ........................................................................................................................ 215 

B. Military Bias for Lethal Operations and Competing Priorities.................................... 216 

C. Interagency Friction and Coordination ........................................................................ 217 

D. Forces that Oppose Rule of Law.................................................................................. 217 

E. A Legacy of Suffering and Destruction....................................................................... 218 

F. Corruption.................................................................................................................... 219 

G. Language and Notional Barriers .................................................................................. 221 

H. Cultural Blindness or a “West is Best” Mentality ....................................................... 222 

I. Sustainability and Resources ....................................................................................... 224 

J. Tyranny of Distance..................................................................................................... 225 

K. Legal Obligations......................................................................................................... 225 

L. Unrealistic Expectations .............................................................................................. 226 

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IX. Theater-Specific Information on Rule of Law – Afghanistan and Iraq............................. 227 

A. Afghanistan.................................................................................................................. 227 

1. Overview................................................................................................................ 227 

2. The Plan for Rule of Law....................................................................................... 227 

3. The International Framework ................................................................................ 229 

4. US Government Efforts ......................................................................................... 231 

5. Provincial Reconstruction Teams .......................................................................... 232 

6. The Legal System of Afghanistan.......................................................................... 234 

7. Successful Rule of Law Practices in Afghanistan ................................................. 242 

8. References and Further Reading............................................................................ 242 

B. Iraq ............................................................................................................................... 244 

1. International Framework........................................................................................ 244 

2. Provincial Reconstruction Teams .......................................................................... 247 

3. Iraqi Criminal Law and Criminal Procedure ......................................................... 251 

4. Security Agreement ............................................................................................... 257 

5. Engaging Iraqi Judges............................................................................................ 258 

6. References and Further Reading............................................................................ 263 

X. Rule of Law Narratives...................................................................................................... 265 

A. A Continued Case Study: Rule of Law in Afghanistan Counter-Insurgency Operations
 

...................................................................................................................................... 265 

1. Introduction............................................................................................................ 265 

2. Receiving the Rule of Law Baton.......................................................................... 266 

3. Racing Afghan Rule of Law Programs Forward ................................................... 267 

4. Passing the Rule of Law Baton.............................................................................. 273 

B. Reconciling Security and Rule of Law While Coordinating US Military and Civilian 

Efforts* ........................................................................................................................ 274 

1. Rule of Law, Security, and Stability...................................................................... 275 

2. The Civil/Military Tension in Rule of Law Capacity Building: Establishment of the 

IROCC ................................................................................................................... 278 

3. State Department Leadership in Reconstruction and Stabilization........................ 284 

4. Conclusion ............................................................................................................. 284 

C. Rule of Law in Afghanistan: A View from the Top .................................................... 285 

1. Differing Institutional Cultures in USG Agencies and the Role of the Rule of Law 

Coordinator ............................................................................................................ 285 

2. The State of Development Efforts in Afghanistan................................................. 286 

3. The View of the International Development Effort From the Ground in Kabul ... 287 

4. The US Rule of Law Effort in Afghanistan........................................................... 287 

5. Coordinating US Efforts ........................................................................................ 289 

6. The Way Ahead ..................................................................................................... 290 

XI. Rule of Law Project Descriptions...................................................................................... 291 

A. Prosecution Task Forces and Warrant Applications in Multinational Division-Center
 

...................................................................................................................................... 291 

B. Linking Up Investigative Judges with Investigators.................................................... 293 

C. Scenario Based Criminal Investigator Training for Iraqi Police in Northern Iraq ...... 297 

D. Mudhouse is Born in Wasit Province .......................................................................... 299 

E. Finding an Iraqi Solution to Overcrowded Prisons in Basrah ..................................... 302 

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F. Bringing Rule of Law to a Developing National Operations Center........................... 305 

G. Integrating Rule of Law with Foreign Internal Defense.............................................. 306 

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x 
 

Foreword 

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

Army Judge Advocates have been involved in rule of law programs for over 100 years. 

This is not to say there has been an official, codified, written rule of law program in the Judge 

Advocate General’s Corps for more than a century; in fact, institutional recognition that the rule 

of law is part and parcel of JA doctrine is very recent. But America’s Judge Advocates have long 

been involved in designing, implementing, and participating in programs that sought to graft the 

rule of law onto another nation’s social organization. 

The first JA involvement in establishing the rule of law occurred at the end of the 

nineteenth century, when the United States successfully invaded – and then occupied – Cuba, 

Puerto Rico, and the Philippine Islands during the Spanish-American War. After Spain sold the 

Philippines to the United States for $20 million, relinquished control of Cuba and Puerto Rico, 

and also ceded Guam to the United States, the American government suddenly discovered that it 

was responsible for governing more than 10 million Cubans, Puerto Ricans, Filipinos, and 

Guamanians.1 

The Army initially established military governments in all of these former Spanish 

colonies, although it was expected that Congress and the President would replace Army 

governors with civilian officials as soon as possible. In Puerto Rico, soldiers served as 

administrators until 1900, and Army officers governed the Philippine Islands until 1902. Military 

government remained in place in Cuba until 1902 but, even after that time, Army officers were 

involved in establishing – and running – new government institutions in Cuba for many years. 

From 1899 to 1902, virtually every officer in the Army served in Cuba, Puerto Rico, or 

the Philippines,2 and Judge Advocates were no exception. From the beginning, these uniformed 

lawyers were convinced that these ex-colonial possessions would best be served if their existing 

Spanish-based legal systems were jettisoned in favor of American-style government. These 

views were hardly unique. On the contrary, they reflected the prevailing opinion, as expressed by 

President William McKinley, that the United States was obligated not only to liberate the former 

Spanish colonials, but also must guide them toward a prosperous, self-governing, democratic 

society. 

Integral to this view was the idea that the inhabitants of Cuba, Puerto Rico, Guam, and 

the Philippines would best be served if they had an American form of government that included 

an Anglo-American judicial framework. From the outset, Judge Advocates were heavily 

involved in efforts to establish new legal institutions. In 1899, for example, then Lt. Col. Enoch 

H. Crowder (who would later serve as Army TJAG from 1911 to 1921) wrote the new Philippine 

criminal code. Crowder also filled many important posts during his duty in Manila, including 

serving as head of the Board of Claims and sitting on the Philippine Supreme Court. 

*

 Mr. Fred L. Borch is the Regimental Historian & Archivist of the Judge Advocate General’s Corps. 

1

 ANDREW J. BIRTLE, U.S. ARMY COUNTERINSURGENCY AND CONTINGENCY OPERATIONS DOCTRINE,
 

1860-1941 at 99 (Center of Military History 1998). 

2 Id., at 100. 

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Rule of Law Handbook 

Similarly, Judge Advocates busied themselves in establishing new legal institutions in 

Cuba. Then-Col. Crowder, fresh from his experiences in Manila, was the chief legal advisor to 

the American-sponsored Provisional Government of Cuba. Although Cuba was granted formal 

independence in 1902, Army lawyers continued to be involved in its legal affairs. Crowder, for 

example, was Supervisor of its State and Justice Departments from 1906 to 1909. At the same 

time, Crowder headed the Cuban Advisory Law Commission and Central Election Board.3 

While JA rule of law efforts in Cuba were relatively short-lived (and Cuba was formally 

independent after 1902), bloody resistance to American rule in the Philippines meant that the 

U.S. Army – and Judge Advocates – had an active role in reshaping Philippine institutions for a 

longer period. It was not until 1913 that President Woodrow Wilson began the process that 

would gradually lead to independence. Consequently, the grafting of American jurisprudence 

onto Filipino society continued for many years, as did JA involvement. 

The next Army JA involvement in rule of law efforts came in the aftermath of World War 

II, when American policy makers decided that Germany and Japan must be re-made if future 

conflict with them was to be avoided. In Japan, Judge Advocates on Gen. Arthur MacArthur’s 

staff participated in drafting a new constitution for Japan – one that enshrined American ideas 

about the rule of law as the basis for a democratic form of government. 

In the occupation of Germany after 1945, Army lawyers were particularly involved in 

running military courts. These occupation courts existed to do justice, but Judge Advocates 

recognized at the time that these courts furthered the development of the rule of law in Germany. 

In 1949, Eli E. Nobleman, an Army Reserve Judge Advocate who served as Chief of the German 

Courts Branch of the Office of Military Government for Bavaria wrote that over 350,000 cases 

had been tried by U.S. Military Government Courts in Germany. Nobleman noted that, while the 

Military Government Courts had delivered justice, they also had 

... gone a long way to toward teaching the democracy and the democratic system 

to the German people. All of the democratic safeguards mean absolutely nothing 

in the absence of impartial courts to protect fundamental rights. It has been 

correctly stated that the true administration of justice is the firmest foundation of 

good government.4 

The next JA involvement in rule of law operations occurred in Southeast Asia in 1964, 

when then-Col. George S. Prugh was the Staff Judge Advocate for Military Assistance 

Command, Vietnam (MACV). Shortly after arriving in Saigon, Prugh wrote a report in which he 

stressed that, as “there cannot be a successful counterinsurgency program until there is 

established a respect for law and order,”5

 Judge Advocates must look for ways to use the law to 

enhance mission success. As Prugh observed, the 

3

 JUDGE ADVOCATE GENERAL’S CORPS, U.S. ARMY. THE ARMY LAWYER 105 (1975). For more on 

Crowder’s rule of law activities in the Philippines and Cuba, see DAVID A. LOCKMILLER, ENOCH H.
 

CROWDER: SOLDIER, LAWYER AND STATESMAN (1955).

4

 Eli E. Nobleman, Civilian Military Government Courts in Germany, JUDGE ADVOCATE J., June 1949, at 

37.
 5

 MG GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 13 (1975). 

Foreword xii 
 

Rule of Law Handbook

law could have a special role in Vietnam because of the unusual circumstances of 

the war, which was a combination of internal and external war, of insurgency and 

nation-building, and of development of indigenous legal institutions and rapid 

disintegration of the remnants of the colonial French legal establishment.6 

In any event, until he returned to the U.S. in 1966, Prugh undertook a number of 

initiatives to demonstrate the value of law in society – all of which were continued by those 

Judge Advocates who followed him at MACV. First, Prugh organized a Law Society that 

sponsored lectures and talks on different aspects of U.S. jurisprudence. These were attended by 

Vietnamese lawyers and government officials, and provided a forum for discussing the role of 

law in a democratic society. Second, Prugh formally established an “advisory” program and 

tasked the Army, Navy, Air Force, and Marine Corps Judge Advocates assigned to MACV to 

advise their South Vietnamese Army (ARVN) lawyer counterparts. As a result, MACV Judge 

Advocates not only cultivated valuable friendships, but also assisted ARVN Judge Advocates in 

using laws and regulations to promote efficiency in the ARVN and deter the subversive activities 

of the Viet Cong. 

Perhaps most importantly, the rule of law efforts spearheaded by Prugh (who served as 

Army TJAG from 1971 to 1975) were intended to promote loyalty to the Saigon government. If 

the Vietnamese people understood – and saw – that their leaders believed in the rule of law, this 

would generate confidence and trust in the actions of the Government of South Vietnam. 

While the withdrawal of U.S. forces in 1973 and the collapse of the South Vietnamese 

government in 1975 means that nothing remains of these JA rule of law efforts, there is no doubt 

that uniformed lawyers considered their work in the area to be part of defeating the Viet Cong 

and their North Vietnamese allies. 

With this history as background, it is clear JA involvement in rule of law operations is 

nothing new. If anything, the only new development is a formal, institutional recognition that 

rule of law operations are an integral part of JA doctrine in military operations – and that 

development of written guidance on how to establish and implement a rule of law program is a 

necessary aspect of what has been part of the JA mission for over a century. 

6 Id., at v. 

xiii Foreword 
Rule of Law Handbook 

THIS PAGE INTENTIONALLY BLANK 

Foreword xiv 
 

I. Introduction 

The Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates is intended to 

provide a starting place for Judge Advocates deployed or being deployed to work on rule of law 

operations. As such, the Handbook is based on assumptions about both the background 

knowledge of its intended audience and the operational posture of rule of law operations. The 

Handbook presupposes basic knowledge of military terms and organizational structure, as well 

as a basic understanding of US military law. Because most American Judge Advocates currently 

engaged in rule of law operations are doing so in the context of reconstruction attendant to armed 

conflict and counterinsurgency, the Handbook is oriented toward rule of law operations 

occurring in those contexts. It is not intended as a guide for more general “nation building” 

missions in permissive environments. 

The Handbook was developed with three over-arching themes, which reflect a 

combination of experience, doctrine, and the inherent limitations of any publication of this type. 

First, and foremost, is that coordination with other agencies is the single most important 

indicator of the likely success of a rule of law mission. Rule of law programs cannot successfully 

take place in isolation. Consequently, the Handbook includes extensive information about the 

interagency relationships necessary to any rule of law operation. 

Second, the Handbook places rule of law operations squarely within Full Spectrum 

Operations.1 In order for rule of law operations to be effective, they have to fit within the larger 

framework of how the US military conducts offensive and defensive operations as well as the 

growing stability mission. 

Third, the Handbook is an acknowledgement that there exists no “cookbook” or 

“checklist” solution to rule of law operations. Rather, the Handbook is designed to allow 

deploying Judge Advocates to think constructively and creatively about rule of law operations 

while providing them with a practical framework for fitting rule of law operations into the legal 

and operational framework for all US joint deployed operations. 

The book’s organization reflects all three themes, covering the theory, interagency 

relationships, and practice of rule of law activities, but it is notably absent of checklists. Chapters 

II-V provide a general background to rule of law activities, setting the stage for Chapter VI, 

which describes the planning of rule of law operations, and Chapter VII, which describes the 

funding rules for current rule of law operations. Chapter VIII describes practical challenges faced 

in rule of law operations. Chapter IX provides theater-specific information regarding current 

ongoing operations, and Chapters X, and XI follow up with practical applications in specific 

contexts. 

Chapter II sets a theoretical framework for rule of law operations to give Judge 

Advocates the necessary background to think about the rule of law problem creatively and to be 

able to discuss rule of law issues with others both, within and outside of the military. At the same 

time, it suggests ways in which the theory can influence day-to-day operations. 

1 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS 3-1 (27 Feb. 2008). 

1 
Rule of Law Handbook 

Chapter III describes the inter-agency atmosphere in which rule of law operations take 

place, and describes the various agencies – governmental and non-governmental – most likely to 

be involved in rule of law operations. 

Chapter IV discusses the legal framework and provides an overview of the international 

legal obligations facing any nation that undertakes rule of law operations during and immediately 

following armed conflict. 

Chapter V describes aspects of the legal systems that are the objects of rule of law 

operations, with special emphasis on the ways in which host nation legal systems (and other 

post-conflict-specific reconciliation measures) may differ from the American legal system that is 

most familiar to US Judge Advocates. 

Chapter VI covers basic military planning doctrine for Judge Advocates, provides some 

practical tools for JAs deploying on rule of law missions, and describes some mechanisms for 

assessing the state of the rule of law in a host nation and evaluating the efficacy of such rule of 

law activities. 

Chapter VII discusses the fiscal law aspects of conducting rule of law operations. 

Chapter VIII lists many, but certainly not all, of the major challenges facing rule of law 

projects. 

Chapter IX provides detailed information about the legal systems and the structure of 

rule of law efforts in two theaters in which substantial rule of law operations are currently taking 

place: Afghanistan and Iraq. 

Chapter X follows Chapter IX’s country-specific focus with narratives from recently 

deployed rule of law practitioners describing their experiences. 

Chapter XI similarly describes recent operations, but instead of providing 

comprehensive narratives of individual deployments, it provides several examples of recently 

conducted rule of law projects. 

Rule of law operations can take a variety of forms (from completely replacing an 

illegitimate or non-existent legal system to slight modification of an existing administration), in a 

variety of operational environments (from active combat to counterinsurgency operations to 

approaching stable peace). They occur among a variety of partners (from simple inter-agency 

arrangements dominated by USG entities to coalition partnerships to multilateral arrangements 

organized through the UN or other international organizations) and affect local populations with 

vastly differing preconceptions about the form and content of law. This Handbook can give you 

no more than a framework for conducting rule of law operations, but it is a framework gleaned 

from the experiences of practitioners. Although they are challenging, rule of law operations – 

those that seek to restore civil order and a society’s reliance on government by law – offer the 

possibility to fulfill the highest aspirations of every Soldier and lawyer: to bring the blessings of 

peace, security, and justice to those who lack them. 

Chapter I - Introduction 2 
 

 

II. Defining the Rule of Law Problem 

“Rule of law” is an inherently (and frequently intentionally) vague term. Making matters 

worse, the term is used differently in different contexts, and Judge Advocates are likely to 

encounter “rule of law” in a variety of circumstances. Some Judge Advocates are engaged in rule 

of law operations by helping to build courthouses and jails. Some “do” rule of law by helping to 

revise a host nation’s legal code. Some rule of law coordinators are leading meetings among 

various coalition or host nation justice sector officials. Others are practicing rule of law by 

processing detainees held by US forces in a speedy and just manner or advising their 

commanders on host nation search and seizure law applicable to US forces conducting security 

operations. Judge Advocates are engaged in rule of law operations as Staff Judge Advocates, 

Brigade Judge Advocates, members of Civil Affairs teams, members of regimental, brigade, 

division, corps, multi-national-force, or geographic combatant command staffs, or as detailed to 

other US or foreign agencies. Rule of law operations take place in a variety of operational 

environments, from active combat to approaching stable peace. 

Most Judge Advocates are currently engaged in rule of law operations in the context of 

larger campaigns of counterinsurgency (COIN),1 as in Iraq and Afghanistan. Rule of law 

operations are central to COIN,2 but the principles underlying rule of law operations apply 

regardless of the operational environment in which they occur. 

Moreover, almost any rule of law effort in which a deployed Judge Advocate participates 

will be an interagency one. As a matter of US policy, the Department of State is the lead agency 

in conducting most stability and reconstruction activities unless otherwise specified,3 and 

virtually all stability operations will involve international and non-governmental organizations as 

participants. It is important to keep in mind the broader participatory base of non-US-military 

partners, who have differing priorities and operating procedures when conducting rule of law 

operations.4 The military role in rule of law capacity-building will end with the redeployment of 

US forces, but the effort will likely continue with civilian agencies assuming an increasingly 

1

 “Counterinsurgency is military, paramilitary, political, economic, psychological, and civic actions taken 

by a government to defeat insurgency.” U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, 

COUNTERINSURGENCY 1-1 (15 Dec. 2006). 

2 Id. (“Over time, counterinsurgents aim to enable a country or regime to provide the security and rule of 

law that allow establishment of social services and growth of economic activity.”) (emphasis added). See 

also U.S. GOVERNMENT COUNTERINSURGENCY GUIDE 38 (Jan. 2009) (“Most countries affected by 

insurgency do not have robust, transparent and effective rule of law systems. Indeed, real or perceived 

inequalities in the administration of the law and injustices are often triggers for insurgency.”). 

3

 National Security Presidential Directive/NSPD-44, Management of Interagency Efforts Concerning 

Reconstructing and Stabilization, Dec. 7, 2005; but see section III.B.1 (discussing the interagency 

coordination for operations in Afghanistan and Iraq, which are not carried out pursuant to NSPD-44) and 

fn. 76 in Chapter IX (describing the inter-agency allocations of responsibility in Iraq). See also JOINT 

CHIEFS OF STAFF, JOINT PUB. 3-0, JOINT OPERATIONS V-24 (17 Sept. 2006) (explaining that, while other 

agencies may have the lead, US military forces must be prepared to carry out all aspects of stability 

operations).

4

 Chapter III deals explicitly with the issue of how best to work with other agencies, international and 

non-governmental organizations, the host nation, and coalition partners in the context of rule of law 

operations. 

3 
 

 

Rule of Law Handbook 

central role. In order for those follow-on efforts to be successful, civilian agencies need to be 

involved at the earliest stages. 

From an operational standpoint, any approach to actually implementing the rule of law 

must take into account so many variables – cultural, economic, institutional, and operational – 

that it may seem futile to seek a single definition for the rule of law or how it is to be achieved. 

Deployed Judge Advocates need to be flexible in not only their understanding of what the rule of 

law is, but also in their approach to bringing it about in a particular context. But, when dealing 

with an operational imperative as deeply rooted in philosophy as “law,” it is impossible to 

separate the how of rule of law from the what of rule of law. Consequently, any understanding 

about rule of law operations needs to start with a discussion about what exactly is the rule of law. 

A. Describing the Rule of Law 

There is no widespread agreement on what exactly constitutes the rule of law, just as 

there is no widespread agreement on what exactly it means to have a “just society.” But there is 

common ground regarding some of the basic features of the rule of law and even more so 

regarding rule of law operations. 

1. Definitions of the Rule of Law 

The first step to defining the rule of law is to ask what the purpose of law is. Although 

there is some philosophical disagreement about why we have law, there is widespread 

acceptance that the rule of law has essentially three purposes, as described by Richard Fallon: 

First the Rule of Law should protect against anarchy and the Hobbesian war of all 

against all. Second, the Rule of Law should allow people to plan their affairs with 

reasonable confidence that they can know in advance the legal consequences of 

various actions. Third, the Rule of Law should guarantee against at least some 

types of official arbitrariness.5 

Put somewhat more simply, the purpose of law is to provide a government of security, 

predictability, and reason. 

According to Prof. Fallon, the purpose of law is served by five “elements” of the rule of 

law: 

(1) The first element is the capacity of legal rules, standards, or principles to guide 

people in the conduct of their affairs. People must be able to understand the law 

and comply with it. 

(2) The second element of the Rule of Law is efficacy. The law should actually 

guide people, at least for the most part. In Joseph Raz’s phrase, “people should be 

ruled by the law and obey it.” 

(3) The third element is stability. The law should be reasonably stable, in order to 

facilitate planning and coordinated action over time. 

5

 Richard H. Fallon, The Rule of Law as a Concept in International Discourse, 97 COLUM. L. REV. 1, 7-8 

(1997) (footnotes omitted). 

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Rule of Law Handbook 

(4) The fourth element of the Rule of Law is the supremacy of legal authority. 

The law should rule officials, including judges, as well as ordinary citizens. 

(5) The final element involves instrumentalities of impartial justice. Courts should 

be available to enforce the law and should employ fair procedures.6 

In applying these principles, though, context is critical. For example, the paper in which Prof. 

Fallon provided his definition was one on constitutional interpretation, not military intervention. 

Consequently, he emphasized some points (such as stability over time) that may be less 

important to rule of law efforts within military intervention than others he did not emphasize 

(such as providing physical security). 

Another approach to the rule of law is offered by Rachel Kleinfeld, who defines the 

concept in terms of five (different) “goals” of the rule of law: 

• making the state abide by the law 

• ensuring equality before the law 

• supplying law and order 

• providing efficient and impartial justice, and 

• upholding human rights7 

Countless other individuals and agencies have offered their own definitions of the rule of law, 

each reflecting their own institutional goals. Deployed Judge Advocates participating in rule of 

law operations will more than likely do so either during or in the immediate wake of high 

intensity conflicts. As a result, some aspects of the rule of law will be particularly salient, such as 

those emphasizing physical security. 

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

According to both Army doctrine and USG interagency agreement8 : 

Rule of law is a principle of governance in which all persons, institutions and 

entities, public and private, including the state itself, are accountable to laws 

that are publicly promulgated, equally enforced, and independently 

adjudicated, and which are consistent with international human rights 

principles.9 

6 Id. at 8-9 (footnotes omitted). 

7

 Rachel Kleinfeld, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW 

ABROAD: IN SEARCH OF KNOWLEDGE 31, 35 (Thomas Corothers ed., 2006). 

8

 U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, U.S. DEPT. OF STATE, U.S. DEPT. OF DEFENSE,
 

SECURITY SECTOR REFORM 4 (Feb. 2009) (“Rule of Law is a principle under which all persons, 

institutions, and entities, public and private, including the state itself, are accountable to laws that are 

publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with 

international human rights law.”) 

9

 U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS 1–9 (Oct. 2008). This definition is 

based in part on that contained in the Report of the Secretary-General: The Rule of Law and Transitional 

Justice in Conflict And Post-Conflict Societies, U.N. Doc. S/2004/616, at 4 (2004): 

5 Chapter II - The Rule of Law Problem 
 

Rule of Law Handbook 

That principle can be broken down into seven effects: 

•	 The state monopolizes the use of force in the resolution of disputes 

•	 Individuals are secure in their persons and property 

•	 The state is itself bound by law and does not act arbitrarily 

•	 The law can be readily determined and is stable enough to allow individuals to plan 

their affairs 

•	 Individuals have meaningful access to an effective and impartial legal system 

•	 The state protects basic human rights and fundamental freedoms. 

•	 Individuals rely on the existence of justice institutions and the content of law in the 

conduct of their daily lives10 

The complete realization of these effects represents an ideal. The seven effects of the rule 

of law exist to greater or lesser degrees in different legal systems and are not intended as a 

checklist for a society that abides by the rule of law.11 Every society will satisfy the list of factors 

more or less completely, and what one person thinks satisfies one factor another person may not. 

Societies can abide by the rule of law to different degrees according to geography (the rule of 

law may be stronger in some places than others), subject matter (the rule of law may apply more 

completely with regard to some laws than others), institutions (some may be more efficient or 

corrupt than others), and subjects (some individuals may have greater access to the rule of law 

than others). Because any meaningful definition of the rule of law represents an ideal, Judge 

Advocates should view the success of rule of law operations as a matter of the host nation’s 

movement toward the rule of law, not the full satisfaction of anyone’s definition of it. 

The deployed captain or major who is this Handbook’s intended audience will hopefully 

be part of an operation that already has a definition of the rule of law – one that has been adopted 

by policymakers. With that in mind, the effects and values represented by the list are ones that 

are likely to be present in any definition one is likely to encounter in a rule of law operation. In 

this way, the seven effects can not only supply a definition of the rule of law, they can 

complement one, providing more specific guidance about the effects Judge Advocates should be 

working to help bring about the rule of law. 

What follows is a discussion of each effect. 

The rule of law refers to a principle of governance in which all persons, institutions and 

entities, public and private, including the State itself, are accountable to laws that are 

publicly promulgated, equally enforced, and independently adjudicated, and which are 

consistent with international human rights norms and standards. 

This definition was also adopted by the Corps Commander in Iraq as early as 2006. See Appendix 2 to 

Annex G to MNC-I Operation Order 06-03. 

10 FM 3-07, supra at 1–9. Of the many definitions of the rule of law in common use, the list of seven 

effects most closely hews to that suggested in JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS,
 

CAN MIGHT MAKE RIGHTS?: BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS 78 (2006). 

11 See STROMSETH, WIPPMAN & BROOKS, supra note 10, at 79; Fallon, supra note 5, at 9. Indeed, given
 

the value-laden character of the factors, there is not even widespread agreement over how to measure 

deviation from them. Id. 

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Rule of Law Handbook 

The State Monopolizes the Use of Force in the Resolution of Disputes 

It is impossible to say that a society is governed by the rule of law if compulsion is not 

the sole province of the state. A country in which the use of violence is out of the state’s control 

is out of control in the worst possible way. The alternative to state control over force is 

warlordism, which is a legally illegitimate form of security. 

That is not to say that only state instruments can wield violence as an instrument of state 

policy. It is possible for the state to delegate the use of force to subsidiary bodies such as state 

and local governments or even non-state security providers, who may or may not be accountable 

to local interests. Local security forces such as police, private security firms,12 and even less 

professional arrangements such as militias, can have a role in a recovering state’s security 

structure. But the state must be able to retain ultimate control over the use of force. Any local 

entity’s power must be effectively regulated by the state in order for it to be considered a 

legitimate exercise in state power. 

12 See section V.H on Non-State Security Providers. 

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Rule of Law Handbook 

Militias and the Sons of Iraq 

In Iraq and Afghanistan, militias established themselves as extra-governmental 

arbiters of the populace’s physical security. Sectarian violence, a weak central 

government, problems in basic services, and high unemployment have caused 

Iraqis to turn to militias and other groups outside the government for their basic 

needs, imperiling Iraqi unity.13 Militias often operate outside the law. Iraq’s 

constitution prohibits the formation of military militias outside the framework of 

the armed forces.14 This prohibition has not stopped the militias from further 

contributing to violence, instability and insecurity.15 Militias have often operated 

under the protection of the Iraqi police to detain, torture, and kill suspected 

insurgents and innocent civilians. In this form, militias constitute a long-term 

threat to law and order. 

In 2007 and 2008, coalition forces in Iraq began seeking to co-opt the 

“awakening” movement, enlisting former Sunni insurgents in informal security 

organizations. These “Sons of Iraq” have been an important part of the coalition 

plan to improve security, and by all accounts have had a largely positive effect on 

the security situation, as insurgents turn to patrolling their neighborhoods and 

cooperating with coalition forces. The employment of potential (and even former) 

insurgents is a classic method for cutting off a source of recruits for insurgents. 

It is not clear the degree to which the positive relationship with the Sons of Iraq is 

sustainable. The hope is that many of them will transition into the Iraqi Security 

Forces. Many, however, are not physically qualified for entry into the Iraqi 

Security Forces, and the predominately Sunni character of the Sons of Iraq places 

them somewhat at odds with the Shiite-majority government. According to 

General David Petraeus, “There are understandable concerns on the part of a 

government that is majority Shiite that, what they [would be] doing was hiring 

former Sunni insurgents, giving them a new lease on life, and that when this is all 

said and done they may turn against the government or the Shiite population.”16 

Although enlisting informal security organizations can provide stability, as the 

assessment by General Petraeus explains, such groups can be relied on only “as 

long as it is in their interests.”17 

13 LTG Michael Maples, Defense Intelligence Agency, The Current Situation in Iraq and Afghanistan, 

Statement for the Record before the Senate Armed Services Committee (Nov. 15, 2006) [hereinafter 

Maples Statement]. 

14 See IRAQI CONST. art 9. 

15 Maples Statement, supra note 13, at 3. 

16 See Walter Pincus, U.S. Unsure About the Future of Iraq’s ‘Sons’, WASH. POST., Mar. 31, 2008, at 

A17. 

17 Id. 

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Rule of Law Handbook 

Individuals are Secure in Their Persons and Property 

In many ways, providing security is the ultimate purpose of any state. For a Judge 

Advocate as part of a deployed force, providing security is going to be the first element in any 

rule of law plan and, depending on the status of operations, it may be the only real contribution 

that US forces can make to implementing the rule of law.18 But it is an important contribution 

nevertheless. From an operational standpoint, without basic security, the rule of law itself is an 

unaffordable luxury. The basic needs of the people, including not only physical security but also 

basic civil services and utilities, have to be provided before one can undertake any long-term 

attempt to improve the rule of law. Thus, the interconnected nature of rule of law projects also 

requires that rule of law efforts be tied to other reconstruction efforts in order to provide the kind 

of livable society in which the rule of law can flourish.19 Time, however, is of the essence in 

establishing security. In addition to the problem of security in the immediate aftermath of major 

combat (such as the prevention of looting), there is a window following the conclusion of major 

combat during which destabilizing elements are themselves likely to be too overwhelmed to put 

up major opposition.20 It is critical during that period to establish security, but the task of 

reconfiguring military forces and adjusting rules of engagement from a combat to security 

mission is a substantial one – it needs to be planned for and anticipated before the start of combat 

operations.21 

In some societies in which the rule of law has been lacking, such as totalitarian 

dictatorships, the primary protection to be offered by the rule of law may be protection from the 

state. 

The State is Itself Bound by Law and Does Not Act Arbitrarily 

The conduct of state actors must be bound by established rules. Of course, it does no 

good for the state to be bound by rules if the rules themselves can be changed according to fiat or 

if they bear no relation to reason. The need for reasoned decision-making applies across 

executive, judicial, and legislative actors. 

In enforcing the law, the executive must be prevented from acting with complete 

autonomy to achieve its chosen end lest order be obtained through terror or intimidation, which 

would not be an exercise of the rule of law. Limits on the power of the police to search or detain 

individuals, for instance, control the exercise of executive authority while simultaneously 

furthering the value of providing security to persons and their property. Corruption, too, can 

erode the function of the legal system into one in which a state is ruled, not by laws, but rather by 

the imposition of illegitimate restrictions that are withdrawn through the payment of bribes. And, 

18 Establishing tight border security is essential for maintaining the rule of law. Insurgencies rely heavily 

on freedom of movement across porous borders, as they usually cannot sustain themselves without 

substantial external support. In western Iraq, for example, insurgents take advantage of the sheer size of 

the area and its long borders which permit the easy smuggling of fighters and weapons. See UNHCR COI 

Report October 2005.

19 See STROMSETH, WIPPMAN & BROOKS, supra note 10, at 135. 

20 Id. at 145-47. 

21 See FM 3-24, supra note 1, at 7-5 (“There is a clear difference between warfighting and policing. COIN 

operations require that every unit be adept at both and capable of moving rapidly between one and the 

other.”). 

9 Chapter II - The Rule of Law Problem 
 

 

Rule of Law Handbook 

of course, if an individual buys an exception to a legitimate regulation, the failure to apply the 

regulation is itself a failure of the rule of law. Corruption, or “the abuse of public power for 

private gain,”22 is a prototypical example of the subversion of the rule of law. 

Judges, too, must be bound by law – statute law or precedent – in their decision-making 

in order for a legal system to function. If judges simply decide each case on first principles, it is 

impossible for a sense of the law to develop in a community. In this way, judges must be faithful 

to legislative acts (assuming there are any to be faithful to) and must also seriously engage 

precedent to prevent their decisions from becoming arbitrary.23 That is not to say that there is no 

room for development in the law. The development of the common law over the past several 

centuries is an indication that judges can both adapt the law to new circumstances and introduce 

new methods of legal thinking without entirely abandoning precedent.24 Of course, there is likely 

to be little precedent in host nations in which US military operations are taking place, and in 

some cases that precedent will be positively rejected as illegitimate. 

Dedication to reason also suggests that judges should not base their decisions on other 

considerations, including the giving of bribes (corruption) or the social status of a particular 

litigant. It thus forms an important element of the state’s protection of human rights and 

fundamental freedoms against certain forms of discrimination. 

Legislatures, too, must be bound by rules. As is the case in many republics, the reason 

offered by legislatures will be political rather than legal, but even the exercise of political will 

has constraints. Legislatures must follow established procedures when making law, and most 

societies include substantive limitations on the power of legislatures, whether in written or 

unwritten constitutions (such as the United Kingdom’s). Identifying and establishing the 

substantive limits of legislative authority is likely to be one of the most difficult problems any 

rule of law project faces. Although major rule of law programs frequently start with written 

constitutions that impose substantive limitations on legislatures, the value of such limits to truly 

constrain the actions of legislatures is a matter of dispute.25 

The Law Can be Readily Determined and is Stable Enough to Allow Individuals to Plan 

Their Affairs 

A basic premise of a society governed by law is that there is widespread agreement on 

what the law is: a rule for recognizing what is law and what is not.26 Any society that has 

advanced beyond anarchy is likely to have such an agreement, which in countries that are the 

subject of US military intervention, may be in the form of a newly authored constitution. Of 

course, in many countries, there will already be established legislatures and courts, and it will be 

22 WORLD BANK, WORLD DEVELOPMENT REPORT 1997, at 102 (1997). 

23 Fallon, supra note 5, at 18-19 (describing the Legal Process approach to the rule of law). Of course, 

precedent does not figure as strongly in civil law systems, but past decision of the same court are 

considered at least persuasive, and those of higher courts are frequently considered to be binding. See
 

section V.B. 

24 Fallon, supra note 5, at 20-21. 

25 See generally A.E. Dick Howard, The Indeterminacy of Constitutions, 31 WAKE FOREST L. REV. 383 

(1968).

26 H.L.A. HART, THE CONCEPT OF LAW 94-95 (2d ed. 1994) (describing the “rule of recognition” that 

societies use to identify law). 

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important for anyone undertaking rule of law projects in such countries to quickly determine 

whether existing institutions have the necessary political legitimacy to continue. The converse is 

that, when setting up new legal institutions, the most important thing will be to go through a 

process that produces the necessary agreement in order to have that institution’s decisions 

recognized by the society as law. 

Laws must be recorded in a way that makes them reasonably accessible, so that even if 

the average citizen does not read the law, they are able to understand its content through 

practice.27 

Similarly, if the law is constantly reversing itself, it is impossible for the law to become a 

tool by which people can plan their affairs. It may be necessary to undertake many dramatic 

changes in a host nation’s legal system (such as adopting new criminal or civil codes), but the 

rate of change cannot be so fast that it is impossible for individuals to build a habit of reliance on 

the law. 

Individuals Have Meaningful Access to an Effective and Impartial Legal System 

It means little to have laws on the books if there is no mechanism for the enforcement of 

that law to redress criminal and civil wrongs. Thus, in order to have a working legal system, 

judicial and enforcement institutions must exist, and the people must have practical access to 

those institutions. In many environments in which deployed Judge Advocates find themselves, 

such institutions may be completely absent. Even when those institutions do exist, their efficacy 

may be completely compromised by corruption; racial, ethnic, religious, or gender bias; or 

simple inefficiency. Corruption, other illegitimate motives, or systematic inefficiency in the 

police force or the judiciary can prevent just laws from having any real effect on society, and in 

order for the state to be bound to its own laws, the judiciary must be able to exercise judgment 

independently of influence from the other branches. 

The need for working legal institutions extends not only to police and courts, but also to 

the correctional system. In developing and reconstructing nations, prisons may fail the rule of 

law in two opposite ways: either there is no effective correctional system and convicts are 

routinely released or prisoners are treated in ways inconsistent with human rights protections. A 

society cannot be said to be governed by the rule of law if criminals are not adequately punished 

or if the state fails to treat those subject to its complete control in a humane, rational manner. 

Human Rights and Fundamental Freedoms are Protected by the State 

It is not possible to completely separate the form of a legal system from its content. 

Consider, for instance, a legal system in which judges applied the law as given to them and 

police arrested and incarcerated offenders without corruption or bias. Most would agree it 

nevertheless would fail to qualify as applying the rule of law if the law applied was merely the 

fiat of a dictator or of a ruling majority acting without regard to human rights and fundamental 

freedoms. In the twenty-first century, it would be hard to find anyone who would acknowledge 

the meaningful existence of the rule of a law in a society in which individuals (or an entire 

27 Similarly, informal unwritten rules can form the basis of legal systems, but the legitimacy of those 

systems is frequently predicated on the shared social understanding of the group to which they are applied 

and are therefore usually applied through non-legal institutions. See generally ROBERT C. ELLICKSON, 

ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991). 

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minority group) were considered personal property, to be openly bought and sold at market. It is 

meaningless to say that the law protects individuals without at least some concept of what it is 

that the law must protect. 

The standards for the minimum protection of a country’s inhabitants are embodied in the 

Universal Declaration of Human Rights (UDHR)28 and the treaties to which the country is a 

party,29 such as the International Covenant on Civil and Political Rights (ICCPR).30 There is 

disagreement, however, on exactly what rights the law must protect to be considered a society 

governed by the rule of law. Some, especially those active in the rule of law community, define 

the most important obligation as one of equal treatment regardless of gender or economic, racial, 

or religious status.31 While most would agree that equality is an important value, many disagree 

on exactly what forms of equality are necessary to the rule of law. In many societies, unequal 

treatment is a cultural fact that there is no popular will to change. Others define the necessary 

rights substantively – for instance, the right to security in one’s person32 or the right to free 

speech33 – but doing so is unlikely to avoid disputes over which rights are essential to 

establishing the rule of law. US Judge Advocates need look no further than our own, ongoing 

debates over constitutional rights for an example of how lengthy and divisive social debates over 

fundamental rights, both egalitarian (e.g. Fourteenth Amendment) and substantive (e.g. First 

Amendment) can be. 

Nevertheless, the deployed Judge Advocate who works on rule of law projects needs to 

keep in mind that protection of human rights and fundamental freedoms is an important 

component of the rule of law and that different participants in the rule of law enterprise are likely 

to have very different understandings of the content of those rights and their relative importance. 

It is important for deploying Judge Advocates to research the human rights treaty obligations of 

the host nation, becoming familiar both with the underlying obligation contained in the treaty, 

any reservations or understandings that country made to it, whether other states have objected,34 

and the likely USG views of the obligation, before attempting to undertake a rule of law project. 

If the country has not become party to the ICCPR, the UDHR should serve as the guiding 

document for Judge Advocates.35 It is also useful to understand the values of other partners and 

those of the host nation’s culture. Certain human rights abuses by host nations may trigger 

restrictions on US funding,36 and systematic mistreatment of citizens and prisoners is likely to 

28 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 

(Dec. 12, 1948). 

29 See FM 3-07, supra note 10, at 1-7 

30 Dec. 16, 1966, 999 U.N.T.S. 171, available at www2.ohchr.org/English/law/ccpr.htm.
 31 UDHR art. 7; Kleinfeld, supra note 7, at 38. 

32 U.S. CONST. amends. V, XIV, sec. 5; UDHR art. 3. 

33 U.S. CONST. amend. I; UDHR art. 19. 

34 A full list of human rights treaties to which a country is a party and that country’s reservations and 

declarations, as well as any objections to them by other states, can be found at 

www2.ohchr.org/English/law (last visited August 15, 2008). 

35 It is Army doctrine that “[r]espect for the full panoply of human rights should be the goal of the host 

nation” as part of counterinsurgency operations. See FM 3-24, supra note 1, at D-8 (citing the UDHR and 

the ICCPR as “guide[s] for the applicable human rights.”). 

36 See, e.g., Leahy Amendment, Pub. L. No. 104-208, 110 Stat. 3009-133 (1996). 

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lead to substantial international resistance from non-governmental organizations, international 

organizations, and coalition partners in any rule of law project. 

Individuals Rely on the Existence of Legal Institutions and the Content of Law in the 

Conduct of Their Daily Lives 

Although one can arguably achieve order through threat alone, law is not compliance 

achieved through threat.37 In order for a rule to be said to be a legal rule, sanction for the rule’s 

violation must be justifiable by reference to the rule itself, not merely by the ability of the 

government to impose a sanction or compel compliance through force.38 A state can only be truly 

said to be governed by the rule of law if the state, and its law, is viewed as legitimate by the 

populace – if the law is internalized by the people.39 From a moral perspective, it is problematic 

for a state to impose a legal system that does not reflect its society’s values. From a practical 

perspective, the failure of a legal system to become internalized can devastate the official legal 

infrastructure either because of constant resistance (through political or more violent means) or 

by requiring the state to rely on its coercive power to resolve more legal disputes than it has the 

capacity to handle. That legitimacy can take multiple forms: 

First, citizens must choose to rely on the legal system. A court system cannot function 

without judges, but it also needs litigants. A government whose laws are ignored by the people 

must rely instead on force to impose its policies, which in turn is likely to increase resistance40 

(and fuel insurgency).41 It is not necessary for the people to internalize every legal rule in order 

to say that the legal system is legitimate. Perhaps the greatest testament to the legitimacy of a 

legal system is when a portion of the population disagrees with a particular legal outcome 

(legislative or judicial) but nevertheless complies with it because of their dedication to the 

institution that produced it – when it is the source of the law, not its content, that provides its 

justification.42 Again, there are strong connections between this element and others, specifically 

the state’s willingness to bind itself to the rule of law. It would be unreasonable, for instance, to 

expect a populace to accept the decisions of the judiciary or the legislature if the executive 

ignores them. 

Second, legitimacy is critical for resolving the 99% of legal disputes that never see a 

courtroom. Most dispute resolution in any society occurs “in the shadow of the law,”43 which 

requires that members of the society have internalized the society’s legal rules and are 

comfortable using them to conduct their affairs. While a functioning court system, for instance, 

is one level of success for a rule of law project, a society that truly lives under the rule of law is 

37 HART, supra note 26, at 22-24. 

38 Id. at 54-58.
 39 See US AGENCY FOR INTERNATIONAL DEVELOPMENT, GUIDE TO RULE OF LAW COUNTRY ANALYSIS:
 

THE RULE OF LAW STRATEGIC FRAMEWORK 7 (2008); STROMSETH, WIPPMAN & BROOKS, supra note 

10, at 75-76.
 40 See JOINT PUB. 3-0, supra note 3, at V-26. 

41 See FM 3-24, supra note 1, at 1-27. 

42 See HART, supra note 26, at 57-58. 

43 STROMSETH, WIPPMAN & BROOKS, supra note 10, at 78. 

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one in which individuals themselves resolve disputes in ways consistent with the law even 

without invoking the judicial system.44 

The legitimacy of a nation’s legal system is in many ways the ultimate expression of the 

rule of law, and is likely to take many years, if not decades, to develop. Again, Judge Advocates 

need look no further than America’s own constitutional experience. The constitutional order that 

we now take for granted remained fragile for decades after the Constitution’s adoption, and 

many would argue became cemented only after the Civil War and Reconstruction. A deployed 

Judge Advocate is unlikely to witness the full social acceptance of a legal system in a postconflict country, but even local acceptance of a single court, police force, or town council is a 

major step on the road to achieving the rule of law. Judge Advocates should conduct rule of law 

projects with this end in mind. 

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

Identifying conditions necessary for a society to be said to be subject to the rule of law 

does not tell one much about the content of the society’s laws, and there is widespread 

disagreement over exactly what that content must be. Some thinkers in the area focus on the 

existence of a structure and fair procedures for making and enforcing laws. Others focus more 

heavily on the content of the law itself. 

The two concerns are reflected by two views of the rule of law, a formalist one that 

emphasizes the procedures for making and enforcing law and the structure of the nation’s legal 

system or substantive one, in which certain rights are protected.45 Using the list of rule of law 

values described above, the transparency and stability of the law is more closely a formalist 

concern, while the protection of human rights and fundamental freedoms is a substantive one. 

While it is important to recognize that legal systems can be described both along formalist and 

substantive lines, the two are not mutually exclusive (for instance, protection against arbitrary 

state action). One can be committed to both a formalist and substantive requirements for the rule 

of law. Indeed it is difficult to find someone with a strong substantive approach to rule of law 

who would not also insist that the state in question follow certain procedures in making and 

enforcing law. Thus, one set of authors on the subject distinguish between “minimalist” 

approaches that may be merely formalist and “maximalist” approaches that include both 

formalist and relatively strong substantive components.46 

The distinction is a matter of emphasis and priority rather than a choice between one 

approach or the other, but the degree to which any rule of law project’s goal is either formalist or 

substantive will vastly affect how the project is carried out (and by whom) and will determine in 

many regards what strategies will be necessary to ensure the successful completion of the 

project. As Judge Advocates consider rule of law projects, the formalist/substantive distinction 

needs to remain at the forefront of their thinking. 

As one might guess, rule of law projects with formalist goals are, all other things being 

equal, less likely to result in controversy and confusion among both international and host-nation 

44 Id. at 78-79.
 45 See Paul Craig, Formalist and Substantive Conceptions of the Rule of Law: An Analytical Framework, 

1997 PUB. L. 467. 

46 STROMSETH, WIPPMAN & BROOKS, supra note 10, at 70-71. 

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participants than projects with substantive goals simply because there is less disagreement over 

the formal criteria for the rule of law than there is regarding the substantive criteria.47 Formalist 

projects are also much less likely to upset established political power relationships, which means 

that they are less likely to engender resistance from local, established elites, who may now find 

themselves at the mercy of their former rivals for alleged wrongs committed under the previous 

regime.48 Similarly, formalist projects are frequently less likely to threaten the cultural identity of 

the host nation and its population than substantive projects.49 While formalist projects are less 

likely to result in attack from both the local and international community as being culturally 

imperialist, it is unlikely in today’s environment that purely formalist projects are likely to 

receive the kind of broad international support they require if they completely ignore substantive 

rights,50 and US law may place explicit limits on assistance to host nations guilty of human rights 

abuses. Neither model exists in a vacuum; even in undertaking what might at first blush be 

considered a purely formalist project, participants should consider the substantive ramifications 

of altering the structure of the legal system. 

B. Rule of Law Operations 

There are as many types of “rule of law operations” – in the parlance of this Handbook, 

any project, program, or planned action whose specific goal is to help a host nation move toward 

the realization of one or more of the seven effects previously described – as there are definitions 

of the rule of law. Rule of law operations also reach as many types of conduct as the rule of law 

itself. 

The nature of the rule of law efforts that Judge Advocates are part of will vary based on 

the nature of the operational environment. In an area subject to active combat, for instance, the 

rule of law effort may be no more than providing order. In a post-conflict environment, it may 

include setting up police and judicial training programs, assisting a new legislature pass new 

laws, or undertaking public relations campaigns to heighten the awareness of the rule of law. The 

kind of all-consuming occupations that the US undertook in Germany and Japan following 

World War II are not likely models for future campaigns, suggesting an approach that is more 

openly cooperative with the host nation and its population.51 The status of the host nation also 

affects the nature of the projects to be undertaken. There may be illegitimate laws that need to be 

changed, written laws that are not being followed, or even no laws at all regarding certain 

important subjects. It is possible there will be complete, established structures that need to be 

remade in order to purge corrupt or illegitimate elements, such as the program of deBaathification that followed the major combat phase of Operation Iraqi Freedom. In many 

47 Robert Summers, The Principles of the Rule of Law, 74 NOTRE DAME L. REV. 1691, 1709-10 (1991). 

48 Kleinfeld, supra note 7, at 38. 

49 See id. at 38 (citing the example of gender equality as a threat to some conceptions of Islamic culture). 

50 The resources available to a project may also depend on its character as either formalist or substantive. 

Many more international and non-governmental organizations are dedicated to bringing about substantive 

change in the world than are devoted to the change of legal formalities or structure, and so projects with 

substantive goals are also likely to trigger broad involvement from the international and nongovernmental community (the advantages of challenges of which are addressed below). 

51 STROMSETH, WIPPMAN & BROOKS, supra note 10, at 3. 

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nations, many industries are traditionally public, meaning that rule of law values are implicated 

in the operation of those industries. 

Moreover, rule of law operations can take very different forms. Many rule of law 

operations are designed to improve the capacity of host nation government or social institutions 

in realizing the rule of law. Such “capacity-building” projects have traditionally been performed 

by civilian organizations of all kinds, and many necessarily so as a matter of US law, which 

limits the US military’s role in providing assistance to many foreign government institutions.52 

But rule of law operations can also focus on the effects that US forces themselves have on the 

state of the rule of law in a host nation. Improving the detention policies followed by US forces, 

such as a preference for relying on the host nation criminal justice system rather than US military 

“security detention,” can go a long way toward a host nation’s realization of the seven rule of 

law effects. Consequently, Judge Advocates concerned with the rule of law (as all lawyers 

should be) must necessarily concern themselves not only with the operation of the host nation’s 

legal institutions, but with the conduct of the operational force. Many types of projects, both 

capacity-building and operational, fall under the umbrella of “rule of law,” and they are as varied 

as the problems they are intended to address. 

There are countless aspects of rule of law operations, but this Handbook emphasizes three 

that are particularly salient to deploying Judge Advocates: the role of rule of law operations 

within full spectrum operations, the operational impact of rule of law operations, and the need to 

adopt an approach to the rule of law that focuses on effects rather than institutions. 

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

Joint Publication 3-0, Joint Operations, breaks operations into three categories: offensive 

operations, defensive operations, and stability operations. Any major campaign will require a 

combination of all three types of operations, to be carried out in different, appropriate balance 

during the different phases of the campaign.53 Army doctrine refers to the mix of offensive, 

defensive, and stability operations as “full spectrum operations.”54 

52 One form of rule of law operation directed toward reforming the institutions that provide security is 

“security sector reform”. “Security Sector Reform” is 

the set of policies, plans, programs, and activities that a government undertakes to 

improve the way it provides safety, security, and justice. The overall objective is to 

provide these services in a way that promotes an effective and legitimate public service 

that is transparent, accountable to civilian authority, and responsive to the needs of the 

public. From a donor perspective, SSR is an umbrella term that might include integrated 

activities in support of: defense and armed forces reform; civilian management and 

oversight; justice; police; corrections; intelligence reform; national security planning and 

strategy support; border management; disarmament, demobilization and reintegration 

(DDR); and/or reduction of armed violence. 

SECURITY SECTOR REFORM, supra note 8, at 3. 

53 JOINT PUB. 3-0, supra note 3, at V-1 - V-2. 

54 U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS 3-1 (27 Feb. 2008). In addition, full spectrum 

operations include “civil support operations,” which is the domestic counterpart to stability operations, 

which are performed overseas. 

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Stability operations, in turn, are “various military missions, tasks, and activities 

conducted outside the United States in coordination with other instruments of national power to 

maintain or reestablish a safe and secure environment, provide essential governmental services, 

emergency infrastructure reconstruction, and humanitarian relief.”55 Although stability 

operations have particular emphasis during the later phases of the campaign, they will take place 

even during the initial combat phase,56 and they need to be planned for as part of the overall 

campaign. The termination of a major campaign cannot be take place until local civil authorities 

are in a position to administer the host nation,57 and stability operations are critical to the final 

two phases of the campaign (Stabilize and Enable Civil Authority)58 leading to the campaign’s 

termination and the redeployment of US forces.59 Stability operations are also a critical 

component of counterinsurgency.60 

The conduct of stability operations is dictated by DOD Directive 3000.05, which defines 

stability operations as: “Military and civilian activities conducted across the spectrum from peace 

to conflict to establish or maintain order in States and regions.”61 DOD Directive 3000.05 

includes three general tasks involved in stability operations: rebuilding indigenous institutions 

(including various security forces, correctional facilities, and judicial systems); reviving and 

rebuilding the private sector; and developing representative government institutions.62 

Many rule of law operations will take place as components of stability operations, 

helping to establish (or reestablish) the host nation’s capacity to maintain the rule of law. Such 

projects may include reconstruction of the physical infrastructure of the host nation’s legal 

system, providing training programs for host nation justice sector personnel, or simply serving as 

a coordinator between the many, many participants in such projects. Conducting rule of law 

operations within the context of stability operations requires that any rule of law effort be 

55 JOINT PUB. 3-0, supra note 3, at GL-28 – GL-29. See also U.S. DEP’T OF DEFENSE, DIR. 3000.05, 

MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION AND RECONSTRUCTION (SSTR)
 

OPERATIONS, para. 4.2 (28 Nov. 2005) [hereinafter DOD DIR. 3000.05] (“Stability operations are 

conducted to help establish order that advances US interests and values. The immediate goal often is to 

provide the local populace with security, restore essential services, and meet humanitarian needs. The 

long-term goal is to help develop indigenous capacity for securing essential services, a viable market 

economy, rule of law, democratic institutions, and a robust civil society.”) (emphasis added). 

56 JOINT PUB. 3-0, supra note 3, at V-15. 

57 Id. at IV-29.
 58 As a matter of doctrine, joint operations have six phases: Shape, Deter, Seize the Initiative, Dominate, 

Stabilize, and Enable Civil Authority. Id. at IV-26-29.
 59 See id. at V-2, figure V-1 (illustrating the balance of offensive, defensive, and stability operations in the 

different phases of major campaigns). See also id. at IV-7 (“To facilitate development of effective 

termination criteria, it must be understood that US forces must follow through in not only the ‘dominate’
 

phase, but also the ‘stabilize’ and ‘enable civil authority’ phases to achieve the leverage sufficient to 

impose a lasting solution.”); id. at xii (“Stability operations will be required to enable legitimate civil 

authority and attain the national strategic end plan. Termination of operations must be considered from
 

the outset of planning.”) (emphasis in original). 

60 FM 3-24, supra note 1, at 2-5 (15 Dec. 2006) (“Most valuable to long-term success in winning the 

support of the populace are the contributions land forces make by conducting stability operations.”). 

61 DOD DIR. 3000.05, supra note 55, para. 3.1. 

62 Id. at para. 4.3.
 

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coordinated with other activities (such as security and the restoration of civilian infrastructure 

and essential services)63 and with other agencies. Within the Army, Civil Affairs forces have a 

particular expertise in many aspects of stability operations, and Judge Advocates should seek out 

Civil Affairs personnel (who are frequently attached to both Army and Marine Corps units) when 

tasked to conduct rule of law operations as part of stability operations.64 

It is DOD policy that “[m]any stability operations tasks are best performed by 

indigenous, foreign, or US civilian professionals. Nonetheless, US military forces shall be 

prepared to perform all tasks necessary to establish or maintain order when civilians cannot do 

so.”65 Thus, Judge Advocates can expect a particularly close working relationship with a 

multitude of not only US, but also coalition, non-governmental, and indigenous participants in 

rule of law projects. 

But the rule of law has a place across the full spectrum of operations, not just within 

stability operations. The objective of any campaign is to leave in place a “legitimate civil 

authority”66 within the host nation. “Legitimacy is frequently a decisive element,” in joint 

operations.67 Similarly, in COIN, “victory is achieved when the populace consents to the 

government’s legitimacy and stops actively and passively supporting the insurgency.”68 In this 

sense, for US forces engaged in COIN, the most important of the seven effects described above 

is the last one – that individuals rely on the existence of legal institutions and the content of law 

in the conduct of their daily lives. That legitimacy is the desired end state for any campaign, but 

it is the only real objective in a counterinsurgency. 

Because of the special relationship between the rule of law and the legitimate exercise of 

force, actions that contribute to the realization of the rule of law not only include formal projects 

to rebuild host nation capacity, but also actions to assure that US, coalition, and host nation 

security forces themselves operate in ways that encourage respect for the rule of law while 

engaged in the full spectrum of operations, including offensive and defensive operations. 

63 See STROMSETH, WIPPMAN & BROOKS, supra note 10, at 9; JOINT PUB. 3-0, supra note 3, at xii (“An 

essential consideration is ensuring that the longer-term stabilization and enabling of civil authority needed 

to achieve national strategic objectives is supported following the conclusion of sustained combat. These 

stability and other operations require detailed planning, liaison, and coordination at the national level 

and in the theater among diplomatic, military, and civilian leadership.”)(emphasis in original); FM 3-24, 

supra note 1, at 5-2 (the second stage of COIN “expands to include governance, provision of essential 

services, and stimulation of economic development.”). 

64 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-57, CIVIL-MILITARY OPERATIONS (8 July 2008); U.S. DEP’T 

OF ARMY, FM 3-05.40, CIVIL AFFAIRS OPERATIONS (29 Sep. 2006). 

65 DOD DIR. 3000.05, supra note 1, para. 4.3. See also JOINT PUB. 3-0, supra note 3, at V-24 (“US 

military forces should be prepared to lead the activities necessary to [secure and safeguard the populace, 

reestablishing civil law and order, protect or rebuild key infrastructure, and restore public services] when 

indigenous civil, USG, multinational or international capacity does not exist or is incapable of assuming 

responsibility. Once legitimate civil authority is prepared to conduct such tasks, US military forces may 

support such activities as required/necessary.”). 

66 JOINT PUB. 3-0, supra note 3, at IV-29 (emphasis added). 

67 Id., at A-4 (“Committed forces must sustain the legitimacy of the operation and of the host government, 

where applicable.”). 

68 FM 3-24, supra note 1, at 1-3. 

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Efforts to build a legitimate government through illegitimate actions are selfdefeating, even against insurgents who conceal themselves amid noncombatants 

and flout the law. Moreover, participation in COIN operations by U.S. forces 

must follow United States law, including domestic laws, treaties to which the 

United States is party, and certain [host nation (HN)] laws. Any human rights 

abuses or legal violations committed by U.S. forces quickly become known 

throughout the local populace and eventually around the world. Illegitimate 

actions undermine both long- and short-term COIN efforts.69 

Legitimacy is the watchword of COIN, which means that every operation undertaken 

during a counterinsurgency – offensive, defensive, or stability – has a rule of law component. 

Any act that the populace considers to be illegitimate (such as the mistreatment of detainees or 

other criminal acts by soldiers acting in either their individual or official capacity, even as 

seemingly insignificant as the failure to obey traffic laws) is likely to discourage the populace 

from viewing legal rules as binding. A command’s ability to establish the rule of law within its 

area of control is dependent in large part on its own compliance with legal rules restricting 

soldiers’ (and the command’s own) discretion and protecting the population from the seemingly 

arbitrary use of force. 

Judge Advocates have a long tradition of advising commanders on the legal aspects of 

conducting operations, which puts them in a prime position to inject the concept of legitimacy 

into the full spectrum of operations undertaken during a campaign. That advice may be 

particularly important as the conflict progresses and operations change over time from an early 

stage high-intensity conflict (as during a forced entry) to a long-term counterinsurgency, and 

from resembling military conflict to more closely resembling law enforcement.70 

As US forces work closely with coalition and host nation forces, the role of Judge 

Advocates as advisors on matters of legitimacy may expand to include helping to assure that host 

nation forces also employ force in legitimate ways. For instance, Judge Advocates can help to 

define rules for the use of force by joint US/host nation operations – which are likely to 

eventually develop into host nation-only operations – that comply with US, international, and 

host nation law; help to develop training programs in the legitimate use of force by host nation 

security forces; and mentor host nation personnel in the legitimate use of force. Throughout the 

period of US military involvement, Judge Advocates will further the rule of law mission by 

advising commanders on the legal restrictions on the use of force by US forces, thereby setting 

the appropriate example for host nation forces. 

2. Operational Impact 

Although ensuring that operations are carried out with legitimacy in mind has long-term 

benefits, there is no denying that there may be short-term costs. It is imperative that Judge 

Advocates explain to their commanders that any rule of law effort will require the dedication of 

resources in order to be successful. In addition to drawing away resources that might otherwise 

69 Id. at 1-24. 

70 See FM 3-24, supra note 1, at 7-5 (“There is a clear difference between warfighting and policing. COIN 

operations require that every unit be adept at both and capable of moving rapidly between one and the 

other.”). 

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be devoted to combat operations or other stability operations, rule of law operations may impact 

traditional operations in other ways as well. 

US forces may need to alter their tactical stance in order to convey to the population that 

they are operating according to law rather than merely exercising control through the threat of 

force. As major combat operations end, combat forces may need to adopt different and more 

engaging tactics as they transition into their role as a stabilizing force. Recalling Joint 

Publication 3-0’s phases of joint operations, while Dominate is an important aspect of combat 

operations, transition into the next phases, Stabilize and ultimately Enable Civil Authorities, 

include a reduction in dominating activities.71 A recognition of the role of force in the long-term 

resolution of conflicts is reflected in the addition of three new Principles of Joint Operations in 

2006: Restraint, Perseverance, and, of course, Legitimacy.

72 When conducting stability 

operations generally, and rule of law operations in particular, the relationship between 

commanders and the local population (and other rule of law participants) must be one of 

cooperation and persuasion rather than commanding and directing.73 

Because rule of law operations are inherently cooperative enterprises, rule of law 

practitioners must have flexibility not only as to possible end states, but also as to the means they 

undertake to reach those end states. Moreover, because the governed have the final say over the 

nature of the law that rules them, the means for accomplishing the rule of law must be ones that 

the local population views as legitimate. The means, as well as the goal, of rule of law operations 

must be meaningful to those who would be governed by the legal system in question. That 

requirement applies both to both formal projects undertaken as part of stability operations (for 

example, it would be illegitimate for a commander to unilaterally appoint host nation judges) and 

to the conduct of offensive and defensive operations by coalition and host nation forces (for 

example, the use of warrantless “cordon and search” methods). Injecting legitimacy into 

operations is likely to substantially limit commanders’ operational flexibility. 

It is critical for Judge Advocates to establish up front that efforts to inculcate the rule of 

law through deed rather than word are likely to have a very real operational cost in the form of 

both reduced mission capability and potentially even in the form of casualties.74 The criminals 

who go free every day in the United States because of illegal searches – and the police officers 

who are killed because they are limited in their power to search – are all the reminder that 

anyone needs of the human cost of a state that is itself bound by legal rules. Similarly, US 

commanders will need to be prepared to respect – and have their power constrained by – host 

71 JOINT PUB. 3-0, supra note 3, at IV-26-IV-29 and fig. IV-6. See also STROMSETH, WIPPMAN &
 

BROOKS, supra note 10, at 136 (“Winning wars and maintaining order are two very different tasks.”). 

72 JOINT PUB. 3-0, supra note 3, at II-2. The nine Principles of War are: Objective, Offensive, Mass, 

Economy of Force, Maneuver, Unity of Command, Security, Surprise, and Simplicity. See also
 

STROMSETH, WIPPMAN & BROOKS, supra note 10, at 135 (“[S]ecurity cannot depend solely or even 

primarily on coercion.”). 

73 LtCdr Vasilios Tasikas, Developing the Rule of Law in Afghanistan, The Need for a New Strategic 

Paradigm, ARMY LAW. 45 (July 2007). 

74 See JOINT PUB. 3-0, supra note 3, at A-4 (“Security actions must be balanced with legitimacy
 

concerns.”). 

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nation legal rules as host nation legal institutions assert their authority.75 Moreover, the 

operational costs of both operating according to pre-established and well-known rules and of 

taking a protective rather than combative operational stance are likely to be incurred in the short 

term, while the benefits of those efforts are likely to be realized only over the very long term. It 

may be particularly hard for commanders to accept those short-term and certain costs in 

exchange for long-term and uncertain benefits. It will be up to Judge Advocates to educate their 

commanders about the importance of the rule of law mission and to prepare them for the costs of 

undertaking that mission. Commanders need to know these operations, like any other, may cost 

Soldiers’ lives and that, while loss of life is always tragic, it is no more or less acceptable as part 

of rule of law operations than it is as part of a high-intensity conflict. 

Rule of law operations are long-term ones, and the rule of law is not free, either 

financially or operationally. The worst thing commanders can do for the rule of law is to commit 

themselves to an approach that they are not prepared to maintain and eventually wind up 

reversing, an act that is likely to be viewed by the populace as an arbitrary (and consequently 

lawless) one. 

3. The Importance of Focusing on Effects 

The preference in all operations is to set goals based on tangible, measurable criteria. In 

rule of law projects, temptation to set measurable goals pushes rule of law projects toward either 

making physical infrastructure improvements, such as building courthouses or jails, or 

implementing programs whose completion can be easily monitored, such as establishing training 

programs and measuring the number of graduates of the program. 

Such institutional improvements can be valuable, but rule of law projects should 

ultimately focus on bringing about particular effects76 along with a specific end-state.77 Thus, it is 

critical to keep in mind what values are represented by the rule of law so that those values, not 

some intermediate, institutionally focused objective, drive the rule of law effort.78 A nation with 

beautifully constructed courthouses may nevertheless fail to achieve the rule of law if the judges 

in those courthouses are either arbitrary or corrupt. The same is true of a well-established police 

or correctional force that regularly violates citizens’ and prisoners’ human rights. 

Of course, metrics must be “measurable,” and some institutional improvements can point 

to underlying effects. (For instance, attendance and graduation from training programs by 

judicial or police may indicate that their superiors recognize the value of the content of the 

program.) Nevertheless, by failing to recognize that institutional improvements are only valuable 

if they are connected to an effect, some institutional projects may actually thwart the long-term 

adoption of the rule of law in a society. It may very well be that, especially during early-stage 

75 For instance, commanders may have to confront not only the delay and effort of having to obtain search 

warrants from host nation judges prior to conducting searches but also the possibility that they will be 

denied those search warrants, restricting their operational capacity significantly.
 76 “An effect is a physical and/or behavioral state of a system that results from an action, a set of actions, 

or another effect.” JOINT CHIEFS OF STAFF, JOINT PUB. 5-0, JOINT OPERATIONS PLANNING III-12 (26 

Dec. 2006) (describing the relative role of objectives, effects, and end states in military planning). 

77 Id. at 6 (“A clearly defined military end state complements and supports attaining the specified 

termination criteria and objectives associated with other instruments of national power.”). 

78 Kleinfeld, supra note 7, at 61-62. 

21 Chapter II - The Rule of Law Problem 
Rule of Law Handbook 

interventions, the only types of measurable change can take place at the institutional level, but 

the ultimate goal of a rule of law project is not to bring about institutional change – it is to bring 

about the conditions described by the term “rule of law”. 

Focusing on the value of effects and their place in the planning process along with 

specific objectives or end-states also highlights both the extremely long duration of rule of law 

projects and the relative inability of armed forces and other rule of law participants to actually 

bring about the rule of law. Although adequate resources, security, and thoughtful planning and 

execution may be necessary to rule of law projects, they are not sufficient for establishing the 

rule of law. In the end, the rule of law reflects a recognition among the governed that compliance 

with and participation in the legal system is valuable. Rule of law projects may help a society 

move toward that ultimate understanding, but because the law is never successfully imposed at 

the end of a gun, merely applying greater resources or asserting greater control cannot lead to 

success, and frequently may hinder it. 

Chapter II - The Rule of Law Problem 22 
 

 

III. Key Players in Rule of Law 

Rule of law missions typically require broad joint,1 interagency, intergovernmental and 

multi-national (JIIM) participation. Involving so many participants has its trade-offs. “It 

necessitates trade-offs between unity of command and broad burden-sharing. Both are desirable, 

but each can be achieved only at some expense to the other.”2

 Judge Advocates should recognize 

that rule of law operations are not and will never be exclusively military activities, and that other 

US agencies, international organizations, non-governmental organizations, coalition forces, 

private sector partners, and host nation agencies, will be part of this collaborative effort on the 

ground. Indeed, in an environment in which security is not a critical issue, the military is unlikely 

to play a role in rule of law activities. 

Success in the rule of law area comes from a common strategy among all USG and hostnation participants for achieving the rule of law. To maximize resources and capacity and avoid 

duplication of efforts, each agency should ensure that their activities fit within a coordinated 

USG-approved strategic plan that has been developed with the host nation. A common strategy 

sets the rules, establishes roles and missions, and goes a long way toward managing 

expectations. Like most military operations, the focused efforts of all the participants, each of 

whom brings a unique perspective and skill set, is critical. Each individual needs to understand 

the roles and responsibilities of the other members of the team. To maximize the effectiveness of 

each member, rule of law participants should make a concerted effort to develop and maintain 

strong professional and interpersonal relationships. This is true not only among the USG agency 

representatives, but also among those representatives and others from the host-nation 

government, the international community, non-governmental organizations (NGOs), and the 

private sector. Potential interagency and interpersonal conflicts may be resolved earlier and 

easier among individuals who have developed a personal affinity with and understanding of 

others involved in similar activities. Such interpersonal relationships improve communication 

and cooperation. 

Of course, Judge Advocates should be mindful of official channels when dealing with 

other agency officials and representatives. Guidance must be sought through the lead rule of law 

agency, military command channels, and senior DOD rule of law representatives on the ground 

when attempting to coordinate with other agencies, both USG and otherwise. 

Lastly, when identifying the key players to rule of law missions, practitioners must also 

identify host nation institutions essential to rule of law. Because each rule of law mission will 

depend upon specific host nation governmental structure, legal apparatus, and mission context, 

this Handbook does not discuss who the key host nation actors will be. However, for a rule of 

law mission to be legitimate, practitioners must keep in mind that will be a product of host nation 

institutions, officials, and populace conduct “rule of law,” with international and coalition 

entities providing only developmental support. Whatever the international or national mandate, it 

is necessary and critical to have host nation actors involved in all stages of rule of law 

1

 JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND 

ASSOCIATED TERMS 283 (as amended through 30 May 2008) (defining “joint” as: “activities, operations, 

organizations, etc., in which elements of two or more Military Departments participate”). 

2

 JAMES DOBBINS, ET AL., THE BEGINNER’S GUIDE TO NATION-BUILDING 6 (2007). 

23 
 

Rule of Law Handbook 

operations. Thus, the rule of law practitioner must establish and maintain meaningful 

collaboration with key host nation officials and civil society leaders, enabling local, giving local 

national institutions and officials as much responsibility as possible in running their own 

country’s affairs and building local government capacity. Meanwhile, the rule of law practitioner 

should bear in mind that any USG strategy and policy guidance likely establishes the medium for 

communication with the relevant host nation officials. 

A. US Policy and Players – Interagency Coordination 

Joint Publication 3-08 defines “Interagency Coordination” as the “interaction that occurs 

between agencies of the USG, including the DOD, for the purpose of accomplishing an 

objective.”3

 Planning and executing interagency operations involving many federal departments 

and agencies is a complicated and difficult undertaking in any environment. This is true because 

agencies in the USG are organized to manage specific and often narrow instruments of national 

power. These separate agencies tend to operate in legislatively-created stovepipes (and funding 

streams). They may also be constrained by the same laws from performing missions outside their 

core missions. Consequently, they have developed their own agency-specific goals, priorities, 

terminology, and bureaucratic cultures that reflect and support their core missions. 

Getting various agencies to pursue common and coherent policies is a recurrent challenge 

in government. There are circumstances in which political leaders call upon these disparate parts 

of the USG to plan and execute a specific mission in consonance with one another. When this 

occurs, these governmental entities must work together within a formal or informal interagency 

framework. Within the post-conflict stabilization and reconstruction context, interagency 

coordination has become increasingly important. As a result, USG agencies have moved from a 

largely informal framework to a more formalized interagency structure. 

For the Judge Advocate, understanding the relevant framework for interagency 

coordination in post-conflict missions is critical to his or her ability to advise the commander 

effectively and accurately and to execute rule of law related missions. As USG agencies other 

than DOD usually have the lead on rule of law programs, appreciating the utility of an effective 

interagency framework will produce a consistent and aligned national policy when implementing 

rule of law operations in these post-conflict stability missions. The ramifications of an 

uncoordinated plan in post-conflict countries can be serious and even dangerous, possibly 

leading the host nation to slip back into violent means of addressing conflict. Working 

effectively with the interagency minimizes waste of limited resources, prevents redundancy in 

operations, increases legitimacy with the indigenous population, and optimizes chances for 

stability and security. It thereby helps prevent loss of innocent life. 

B. Post-Conflict Interagency Structure 

The recent post-conflict experiences in Afghanistan and Iraq have driven policy makers 

within the US government to improve both the planning and execution of post-conflict stability 

operations. The Bush Administration, which came into power generally opposed to the notion of 

3

 JOINT CHIEFS OF STAFF, JOINT PUB. 3-08, INTERAGENCY, INTERGOVERNMENTAL ORGANIZATION, AND 

NONGOVERNMENTAL ORGANIZATION COORDINATION DURING JOINT OPERATIONS I-1 (17 Mar. 2006). 

Chapter III - Key Players 24 
 

 

 

Rule of Law Handbook 

using armed forces to engage in nation-building, came to acknowledge the United States “must 

also improve the responsiveness of our government to help nations emerging from tyranny and 

war ... and that means our government must be able to move quickly to provide needed 

assistance.”4

 Two key directives from the Bush Administration that defined the federal 

government’s organization for stability operations were National Security Presidential Directive 

44 (NSPD-44)5

 and Department of Defense Directive 3000.05 (DOD Directive 3000.05). But 

also relevant is the general framework for interagency coordination set forth in National Security 

Presidential Directive 1 (NSPD-1).6

 It, for example, has been and continues to be, the 

coordinating framework used for operations in Iraq and Afghanistan because their planning and 

commencement occurred before promulgation of NSPD-44. Although there have been some 

changes, the Obama Administration has not made wholesale changes to the NSPD-1/-44 

structure adopted in the previous administration. 

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

In general, NPSD-1, adopted in February 2001, establishes a framework within the 

National Security Council for inter-agency coordination. It provides for: 

the composition of the National Security Counsel (NSC) itself 

the continuation of the Principals Committee (NSC/PC) as the “senior interagency forum 

for consideration of policy issues affecting national security,” as it has been since 

1989.7 

the continuation of the NSC Deputies Committee (NSC/DC) as the “senior sub-Cabinet 

interagency forum for consideration of policy issues affecting national security.” The 

NSC/DC “can prescribe and review the work of the NSC” Policy Coordinating 

Committees (PCCs) and “also help ensure that issues being brought before the 

NSC/PC or the NSC have been properly analyzed and prepared for decision.”8 

the establishment of a number of Policy Coordination Committees (now called 

Interagency Policy Committees or “IPCs”) for both regions and functional topics, 

which serve as the main day-to-day fora for interagency coordination of national 

security policy by providing policy analysis for consideration by the more senior 

4

 President George W. Bush, Speech at International Republican Institute Dinner, Renaissance Hotel, 

Washington D.C (May 18, 2005), available at 

http://www.whitehouse.gov/news/releases/2005/05/20050518-2.html (last visited Aug. 28, 2008). 

5

 National Security Presidential Directive/NSPD-44, Management of Interagency Efforts Concerning 

Reconstruction and Stabilization, Dec. 7, 2005 [hereinafter NSPD-44], available at 

http://www.fas.org/irp/offdocs/nspd/nspd-44.html (last visited Aug. 27, 2009). 

6

 National Security Presidential Directive/NSPD-1, Organization of the National Security Council 

System, Feb. 13, 2001 [hereinafter NSPD-1], available at http://www.fas.org/irp/offdocs/nspd/nspd-1.htm 

(last visited Aug. 27, 2009). 

7

 The NSC/PC consists of the heads of several cabinet-level departments, including the Secretaries of 

State, Treasury, Defense, as well as the President’s Chief of Staff, and the Assistant to the President for 

National Security Affairs. Other agency heads “attend meetings pertaining to their responsibilities.” 

8

 The NSC/DC, in large part, consists of the Deputy Secretaries of the departments included in the 

NSC/PC. 

25 Chapter III - Key Players 
 

 

Rule of Law Handbook 

committees of the NSC system and ensuring timely responses to decisions made by 

the President 

Since the promulgation of NSPD-1 in 2001, further PCCs have been established, for 

example, NSPD-44 established a new PCC for reconstruction and stabilization (R&S) 

operations. 

As stated earlier, this pre-existing interagency framework has guided operations in 

Afghanistan and Iraq. For Afghanistan, policy development has been taking place through 

meetings led by the Special Representative for Afghanistan and Pakistan. Similarly, for Iraq, 

policy development and coordination occurs through the Iraq Policy Operations Group (IPOG). 

Both country-specific policy teams provide policy recommendations to the NSC Deputies 

Committee. For these two areas the Assistant to the President and Deputy National Security 

Advisor for Iraq and Afghanistan chairs these teams. 

2.	 US National Security Presidential Directive 44 (NSPD-44) and the Reconstruction and 

Stabilization Civilian Management Act of 2008 

On December 7, 2005, President Bush promulgated NSPD-44, entitled the “Management 

of Interagency Efforts Concerning Reconstruction and Stabilization.9

” The primary purpose of 

issuing NSPD-44 was to improve “coordination, planning, and implementation for reconstruction 

and stabilization assistance for foreign states and regions at risk of, in, or in transition from 

conflict or civil strife.”10 NSPD-44 provided an overarching interagency coordinating structure to 

manage reconstruction and stabilization operations. Most important, from a military planning 

perspective, it designates the Secretary of State as the USG lead for reconstruction and 

stabilization operations. 

NSPD-44 explicitly assigned to the Secretary of State the responsibility to prepare for, 

plan, coordinate, and implement reconstruction and stabilization operations in a wide range of 

contingencies, ranging from complex emergencies to failing and failed states, and war-torn 

countries.11 The State Department serves as the focal point for creating, managing and deploying 

standing civilian response capabilities for a range of purposes, including to advance “internal 

security, governance and participation, social and economic well-being, and justice and 

reconciliation.”12 To execute this directive, the Office of the Coordinator for Reconstruction and 

Stabilization (S/CRS) was created, and the Secretary delegated authority under NSPD-44 to the 

Coordinator for Reconstruction and Stabilization. 

NSPD-44 established a PCC for R&S Operations, co-chaired by the head of S/CRS and a 

member of the National Security Council staff. This PCC is responsible for overseeing and 

facilitating the integration of all military and civilian contingency planning, and civilian R&S 

operations, possibly in collaboration with another PCC or other structure in place for a particular 

country, region, or matter. 

9

 NSPD-44, supra note 5. 

10 Id. 

11 Id. 12 Id. 

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Rule of Law Handbook 

NSPD-44 further stressed coordination in conflict mitigation and prevention and planned 

responses for R&S between the State Department and the Defense Department.13 Lastly, the 

directive highlighted the requirement to develop a joint framework for harmonizing R&S plans 

with military activities.14 

Absent new Presidential Directives from the Obama Administration that suspend the 

processes established by NSPD-44, those mechanisms continue, with the day-to-day 

management overseen by the R&S IPC. However, authorities established by the original NSPD44 have been subsumed by the “Reconstruction and Stabilization Civilian Management Act of 

2008,” which was included as Title XVI of the Duncan Hunter National Defense Authorization 

Act of Fiscal Year 2009, signed into law by the President on October 14, 2008, as P.L. 110-417. 

Title XVI amends the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) and the State 

Department Basic Authorities Act of 1956 (22 U.S.C. 2651a et seq.), authorizes the Civilian 

Response Corps, and permanently establishes S/CRS in the Department of State. 

To implement the mandate originally established by NSPD-44, S/CRS followed a threepronged approach15 that allows the USG to plan, prepare and conduct operations in a 

stabilization and reconstruction operation. First, various agencies (including DOD) agreed on a 

“USG Planning Framework for Stabilization and Reconstruction”. The idea behind the Planning 

Framework was not only to have the ability to plan as a government from the strategic level on 

down, but also to have a structure within which civilian personnel could be organized for 

response, furthering the capacity for expeditionary civilian personnel. Thus, the Planning 

Framework is a civilian planning template allowing for planning across sectors for the particular 

mission, based on defined objectives that directly support USG national interests. This strategic 

level planning forms the basis for the operational and tactical level planning that goes on at the 

mission level or gets integrated with Combatant Command-level planning, after presentation to 

the NSC Deputies or Principals Committee for approval. 

Second, an interagency management system (IMS) was adopted at the NSC Deputies 

Committee level in order to more effectively coordinate R&S activities among the agencies. The 

IMS is designed to provide coordinated, interagency policy and program management for highly 

complex crises and operations that are national security priorities; involve widespread instability; 

may require military operations; and engage multiple US agencies.16 The IMS clarifies “roles, 

responsibilities, and processes for mobilizing and supporting interagency [reconstruction and 

stabilization] operations,” and provides the structure personnel fall into when called upon to 

participate in project run pursuant to the IMS. The IMS is comprised of the Coordination of 

Reconstruction and Stabilization Group (CRSG), which is a PCC-level decision making body 

13 Id. 

14 Id. 

15 It’s important to note that, while S/CRS plays an important role in the overall process, it does not 

establish policy. It co-chairs, with the NSC, a PCC on R&S (now called a R&S IPC) that develops policy 

initiatives for the NSC decision-making process. 

16 John E. Herbst, Coordinator for the Office of Reconstruction and Stabilization, Statement Before the 

House Armed Services Subcommittee on Oversight and Investigations: Stabilization and Reconstruction 

Operations Learning from the Provincial Reconstruction Team (PRT) Experience (Oct. 30, 2007), 

available at http://www.state.gov/s/crs/rls/rm/94379.htm (last visited September 1, 2008) [hereinafter 

Herbst Statement]. 

27 Chapter III - Key Players 
 

 

Rule of Law Handbook 

supported by a Secretariat17 to support decision and policy making; an Integration Planning Cell 

(IPC), which deploys to the relevant combatant command to integrate civilian and military plans; 

and a field headquarters and implementation elements, called Advance Civilian Teams (ACT) 

and Field Advance Civilian Teams (FACT), respectively.18 To support planning elements, 

S/CRS coordinated with other USG agencies to publish a Post-Conflict Reconstruction Essential 

Tasks Matrix to assist planners.19 

Third, S/CRS is increasing civilian readiness capacity, either to conduct or assist the 

military with reconstruction and stabilization operations. To that end, S/CRS, is coordinating the 

establishment of an interagency Civilian Response Corps (CRC) comprised of three components: 

Active, Standby and Reserve. The Active and Standby components include USG employees. The 

Reserve component will include individuals from the private sector and state and local 

governments who agree to deploy up to one year of a four-year commitment.20 Because no single 

government entity has all of the relevant expertise, the Active and Standby components of the 

CRC are a collaboration of eight departments and agencies: the Department of State, US Agency 

for International Development, Department of Agriculture, Department of Commerce, 

Department of Health and Human Services, Department of Homeland Security, Department of 

Justice, and Department of the Treasury. 

Beginning in 2006, S/CRS established a pilot program of the Active and Standby 

components within DOS. In September 2008, the Active and Standby components expanded 

beyond S/CRS to other DOS Bureaus and other USG agencies. The Active Component is 

composed of full-time, USG personnel employed by a US agency to conduct R&S activities 

compatible with that agency’s mission. Their primary duties involve training for, planning for, 

providing direct support to, and conducting USG R&S field operations Active members must be 

available to deploy worldwide within 48 hours of call-up. The Standby Component also consists 

of full-time USG personnel whose primary duties do not necessarily directly support 

international R&S activities, but who have pertinent expertise and who agree to deploy to 

provide expertise supplemental to other civilian responders. Lastly, the Reserve component will 

be drawn from state and local government entities and private sector, and will serve as USG 

personnel. During training, Reservists will be hired as temporary appointees, and when deployed, 

they will be USG term appointees. The CRC Reserves will complement the Active, Standby and 

other response capacity of US civilian agencies. The Reserves will offer American citizens 

another opportunity to serve their country and provide the USG with a group of individuals with 

broader and deeper expertise in areas such as public security and rule of law specialties. 

17 To facilitate its operations, a Secretariat run by S/CRS will be established for each CRSG. The 

Secretariat ensures that there is a single channel for providing information, helping to formulate options, 

and monitoring the implementation of policy decisions. The Secretariat oversees the writing of a unified 

plan taking account of all U.S. Government capabilities that will be used in the crisis. Id.
 18 Id. 

19 The Post Conflict Reconstruction Essential Tasks Matrix can be found at: 

http://www.state.gov/s/crs/rls/52959.htm (last visited August 12, 2008), which builds upon the Joint 

CSIS/AUSA Post-Conflict Reconstruction (PCR) Task Framework” from WINNING THE PEACE: AN 

AMERICAN STRATEGY FOR POST-CONFLICT RECONSTRUCTION, (Robert C. Orr, ed. 2004). The S/CRS 

Essential Tasks Matrix is discussed in greater detail in Chapter VI. 

20 The Reserve component has not yet been provided funding 

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Rule of Law Handbook 

The CRC Active and Standby components will be trained and equipped to deploy rapidly 

to countries in crisis or emerging from conflict, as well as to participate in Washington and 

regionally-based planning and collaborative civilian-military exercises, in order to provide 

coordinated R&S assistance. The CRC will consist of a plurality of law enforcement and 

corrections officers, prosecutors and other justice and rule of law personnel, and also by 

diplomats, development specialists, public health officials, engineers, economists, public 

administrators, agronomists and others. They will offer the full range of skills anticipated as 

needed to help fragile states restore stability and the rule of law. Because no single government 

entity has all of the relevant expertise, the Civilian Response Corps is a collaboration of eight 

departments and agencies: the Department of State, US Agency for International Development, 

Department of Agriculture, Department of Commerce, Department of Health and Human 

Services, Department of Homeland Security, Department of Justice, and Department of the 

Treasury. 

The pilot Active and Standby components of the CRC within DOS have deployed 

members to assist with conflict prevention and mitigation, and reconstruction and stabilization to 

Sudan, Chad, Haiti, Lebanon, Liberia, Kosovo, Georgia, Iraq, and Afghanistan, among others. 

In 2008 Congress provided initial funding for the Active and Standby components of the 

Civilian Response Corps under the FY2008 supplemental (P.L. 110-252). Additional funding 

was provided under Division H of P.L. 111-8, commonly known as the FY09 omnibus. 

Although the viability and effectiveness of these deployable civilian personnel remains 

an issue only time can determine, they represent significant first steps in enhancing civilian 

expeditionary capacity. Following sections describe S/CRS itself in further detail. 

3. Department of Defense Directive 3000.5 

The Department of Defense has adopted a parallel set of doctrinal and institutional 

innovations in the arena of stability operations. In November 2005, the Deputy Secretary of 

Defense issued Directive 3000.05, entitled “Military Support for Stability, Security, Transition, 

and Reconstruction (SSTR) Operations.”21 The directive declares stability operations22 a “core 

U.S. military mission that the [military] shall be prepared to conduct and support.”23 Moreover, 

the publication directs stability operations “shall be given priority comparable to combat 

operations and be explicitly addressed and integrated across all DOD activities.”24 As such, this 

directive mandates military planners to integrate stability operations with every war plan.25 

21 U.S. DEP’T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION 

AND RECONSTRUCTION (SSTR) OPERATIONS, 2 (28 Nov. 2005) [hereinafter DOD DIR. 3000.05]. 

22 Stability Operations are those missions, tasks, and activities seek to maintain or reestablish a safe and 

secure environment and provide essential governmental services, emergency infrastructure reconstruction, 

or humanitarian relief. Many of these missions and tasks are the essence of CMO. JOINT CHIEFS OF 

STAFF, JOINT PUB. 3-0, JOINT OPERATIONS V-1 (13 Feb. 2008). 

23 DOD DIR. 3000.05, supra note 21.
 24 Id. See also REPORT OF THE DEFENSE SCIENCE BOARD TASK FORCE ON INSTITUTIONALIZING 

STABILITY OPERATIONS WITHIN DOD (Sept. 2005) (urging the Pentagon to accelerate its capabilities to 

conduct post-conflict stability operations). 

25 DOD DIR. 3000.05, supra note 21, at 3.
 

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Rule of Law Handbook 

DOD Directive 3000.5 maintains that military forces are to defer responsibility to 

appropriate civilian agencies when feasible.26 The directive also calls for the development and 

employment of field civilian-military teams as a necessary element in post-conflict operations.27 

The directive places the Under Secretary of Defense for Policy (USD(P)) and the 

Chairman of the Joint Chiefs of Staff in charge of preparedness for DOD stability operations.28 

The USD(P) is to advise the Secretary of Defense in the area of stability operations policy, 

providing the Secretary with a semiannual report on the Department’s progress in implementing 

the directive. The Chairman is to identify and lead the development of DOD capabilities for 

stability operations. This includes developing joint doctrine for stability operations, overseeing 

the development and assessment of relevant training, and establishing effectiveness standards to 

measure overall progress towards building the needed capabilities.29 

While the Directive acknowledges that many stability and reconstruction tasks are more 

appropriately carried out by civilians, it notes this may not always be possible in chaotic 

environments or when civilian capabilities are unavailable.30 Accordingly, the Directive includes 

a long list of reconstruction and stabilization undertakings the US military must train and equip 

itself to carry out. These range from rebuilding infrastructure to reforming security sector 

institutions, reviving the private sector, and developing representative government.31 

The Directive calls on DOD to coordinate with Office of the Coordinator for 

Reconstruction and Stabilization (S/CRS) and other civilian agencies and to support the creation 

of civilian-military teams in the field.32 The Department of Defense recognizes “military action 

alone cannot bring longer term peace and prosperity; therefore we need to include all elements of 

national and institutional power.”33 

To fulfill this mandate to improve interagency cooperation, the USD(P) “designated the 

Assistant Secretary for Defense for Special Operations and Low Intensity Conflict (ASD 

SO/LIC) to lead DOD Directive 3000.05 implementation.”34 In turn, the ASD SO/LIC 

established the Stability Operations Capabilities directorate.35 

Similarly, all of the services responded to the directive by identifying a proponent for 

stability operations initiatives. Within the Army, there are significant restructuring initiatives tied 

to fulfilling the DOD Directive 3000.50 mandate. These include establishing a “division within 

the Army G-3/5 dedicated to stability operations”36 and expanding the Peacekeeping and 

Stability Operations Institute (PKSOI) at Carlisle Barracks. It also includes establishing the 

26 Id. 

27 Id. 

28 Id. 

29 Id. 

30 Id. 

31 Id. 

32 Id. 

33 Id. 

34 Secretary of Defense, Report to Congress on the Implementation of DOD Directive 3000.05 Military 

Support for Stability, Security, Transition and Reconstruction (SSTR) Operations (1 Apr. 2007), at 5. 

35 Id. 

36 Id. 

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“Culture Center within the Army’s Training and Doctrine Command [which] provides 

exportable training materials and mobile training teams to better prepare deploying units to more 

effectively operate in foreign cultures” and creating additional psychological operations and civil 

affairs billets.37 The Air Force “designated the Director of Operational Plans and Joint Matters as 

the lead agent for its stability operations initiatives” which included creating the Coalition 

Irregular Warfare Center.38 The Department of the Navy “designated the Deputy Chief of Naval 

Operations, as the Navy’s Lead Officer for Stability, Security, Transition and Reconstruction 

Operations” and established the Naval Expeditionary Combat Command (NECC) which includes 

the Maritime Civil Affairs Group.39 Finally, the Marine Corps created “the Center for Irregular 

Warfare, the Center for Advanced Operational Culture Learning (CAOCL) and an SSTR section 

within the Headquarters, U.S. Marine Corps.”40 

In addition to restructuring, each service addressed the requirement within DOD 

Directive 3000.05 to improve military doctrine, education and training for stability operations. 

Recent doctrine updates emphasizing stability operations include Joint Publication 3-0, Joint 

Operations, Field Manual 3-0, Full Spectrum Operations, Field Manual 3-07, Stability 

Operations, Field Manual 3-24 / MCWP 3-33.5, Counterinsurgency, as well as the 

reorganization of the Air Force’s doctrinal hierarchy.41 Field Manual 1-04, Legal Support to the 

Operational Army addresses the roles and responsibilities of Judge Advocates in stability 

operations, as does as in Field Manual 3.05-40, Civil Affairs Operations and in Joint Publication 

1-04, Legal Support to Military Operations. 

Enhanced educational initiatives include expanding language and culture skills training 

and including stability operations exercises in the professional military education curriculum for 

intermediate level education as well as at each of the senior service schools. Specifically, SSTR 

training initiatives include: 

An integrated USG pre-deployment training regimen built on Iraq and Afghanistan 

Provincial Reconstruction Team (PRT) training concepts 

A process for DOD to obtain subject matter experts from other USG agencies to support 

DOD training and exercises 

The adjudication of requests for interagency integrated training through a single point of 

contact in each agency 

The development of a USG-wide web-based training knowledge portal that allows 

participating agencies to have visibility to other agencies’ training opportunities.42 

Many of these initiatives have been completed, and all are under way. All the services have also 

incorporated individual43 and collective training on SSTR. The training centers placed additional 

37 Id. 

38 Id. at 6. 

39 Id.
 40 Id. 

41 Id. 11-12. 

42 Id. at 16-7. 

43 Training opportunities include the following: 80 hour modular cultural awareness training program
 

developed by the Army Intelligence Center, online cultural awareness available through Army
 

31 Chapter III - Key Players 
 

 

 

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emphasis on SSTR tasks by employing “civilian role players and foreign language speakers to 

replicate indigenous populations, security forces, and representatives from governmental and 

private relief organizations.”44 Ultimately, these updates to unit structure, doctrine, training, and 

education reflect the fact DOD Directive 3000.05 “establishes enduring policies and broad 

implementing actions that are integrated into the Department [of Defense’s] force development 

mechanisms in a way that balances current operational requirements with projected needs and 

risk parameters.”45 

4. US Agencies Influencing Post-Conflict Operations 

As explained in the previous section, the USG has promulgated guidance embracing postconflict operations. Today, in addition to Congress, there are an extensive number of individuals 

and US governmental offices that may influence post-conflict and stability policy. Also critically 

important is the role of the National Security Council. What follows is an overview of some of 

the relevant directives, offices or positions at the NSC and at USG agencies.46 Following this 

listing, a few key agencies are described in detail. 

 National Security Council (NSC) System47 

3⁄4	 National Security Council 

o	 NSC Principals Committee 

o	 NSC Deputies Committee 

 NSC/Interagency Coordination Committees (IPCs) for different regions of world 

•	 Special Representative for Afghanistan and Pakistan (Amb. Richard 

Holbrooke) 

• Iraq Policy and Operations Group (IPOG) 

 NSC/IPCs for functional topics 

•	 Reconstruction and Stabilization Operations 

•	 Democracy, Human Rights and International Organizations 

Department of State (DOS) 

3⁄4	 Secretary of State 

o	 Policy Planning Staff (S/P) 

o	 Counterterrorism Coordinator (S/CT) 

o	 War Crimes Issues (S/WCI) 

o	 U.S. Global AIDS Coordinator (S/GAC) 

o	 Coordinator for Reconstruction and Stabilization (S/CRS) 

o	 Intelligence and Research (INR) 

Knowledge Online, mobile training teams on fundamental language and culture “survival skills” provided 

by the Defense Language Institute. Id. at 18. 

44 Id. at 17. 

45 Id. at 4. 

46 List modified from The Partnership for Effective Peacekeeping, US Government Officials Who Impact 

Peacekeeping and Peacebuilding Policy Decisions (Dec. 2004), available at
 

http://www.effectivepeacekeeping.org/bn-us/ (last visited September 1, 2008). 

47 See NSPD-1, supra note 6.
 

Chapter III - Key Players	 32 
 

 

Rule of Law Handbook 

o	 Legal Adviser (L) 

o	 Special Representative for Afghanistan and Pakistan 

o	 The Director of U.S. Foreign Assistance and USAID Administrator (F) 

o	 Under Secretary for Political Affairs (R) 

 Assistant Secretaries of Regional Offices 

•	 Country desk officers 

o	 Iraq (NEA/I), further divided into sections, focusing on different issues, 

e.g., political-military affairs, political affairs, and provincial 

reconstruction teams. 

o Afghanistan (SCA/A) 

 International Organizations (IO) 

 International Narcotics and Law Enforcement Affairs (INL)48 

•	 Civilian Police and Rule of Law (CIV) 

•	 Afghanistan and Pakistan (AP) 

•	 Iraq Programs (I) 

•	 Africa, Asia and Europe (AAE) 

• Americas Programs (LP) 

 Policy, Public and Congressional Affairs 

o	 Under Secretary for Economic, Business and Agricultural Affairs (E) 

 Economic, Energy and Business Affairs (EEB) 

o	 Under Secretary for Arms Control and International Security Affairs (T) 

 Political-Military Affairs (PM) 

 International Security and Nonproliferation (ISN) 

 Verification, Compliance and Implementation (VCI) 

o	 Under Secretary for Management (M) 

o	 Under Secretary for Democracy and Global Affairs (G) 

 Population, Refugees and Migration (PRM) 

 Democracy, Human Rights and Labor (DRL) 

 Oceans and International Environmental and Scientific Affairs (OES) 

 International Women’s Issues (G/IWI) 

 Office to Monitor and Combat Trafficking in Persons (G/TIP) 

o	 Under Secretary for Public Diplomacy and Public Affairs (R) 

 International Information Programs (IIP) 

 Public Affairs (PA) 

 Education and Cultural Affairs (ECA) 

U.S. Agency for International Development (USAID) 

3⁄4	 Administrator of USAID 

o	 Regional Bureaus (Africa (AFR), Asia/Near East (ANE), Europe/Eurasia (E&E), 

Latin America/Caribbean (LAC), Middle East) 

 South Asian Affairs (ANE/SAA) 

 Iraq Reconstruction (ANE/IR) 

48 INL has the lead for DOS on many, if not most, of the rule of law activities currently in Afghanistan 

and Iraq, funding DOJ and other actors to carry out programs. 

33 Chapter III - Key Players 
 

 

Rule of Law Handbook 

o	 Bureau for Democracy, Conflict and Humanitarian Assistance (DCHA) 

 Democracy and Governance 

•	 Rule of Law Division 

•	 Governance Division 

•	 Elections and Political Processes Division 

• Civil Society Division 

 Office of Transition Initiatives (OTI) 

•	 Management and Program Operations Team 

• Field Operations Team
 

 Conflict Management and Mitigation
 

 U.S. Foreign Disaster Assistance (OFDA) 

 Volunteers for Prosperity 

 Military Affairs 

•	 Planning Division 

•	 Operations Division 

o	 Bureau of Economic Growth, Agriculture and Trade (EGAT) 

•	 Women in Development 

•	 Economic Growth 

o	 Economic Policy and Governance Team 

•	 Poverty Reduction 

o	 Microenterprise Development Team 

o	 Poverty Analysis and Social Safety Net Team 

•	 Infrastructure and Engineering 

•	 Agriculture 

o	 Agriculture and Rural Policy/Governance Team 

o	 Agricultural Technology Generation and Technological Outreach Team 

o	 Agribusiness and Markets Team 

o	 Bureau for Global Health 

o	 Bureau for Legislative and Public Affairs 

Department of Justice (DOJ) 

3⁄4	 Attorney General 

o	 Deputy Attorney General 

 Assistant Attorney General, Criminal Division 

•	 International Criminal Investigation Training Assistance Program (ICITAP) 

•	 Office of Overseas Prosecutorial Development, Assistance, and Training 

(OPDAT) 

 Director, Federal Bureau of Investigations (FBI) 

 Director, US Marshals Service (USMS) 

 Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

 Administrator, Drug Enforcement Administration (DEA) 

 Director, Federal Bureau of Prisons 

 Office of Legal Policy (OLP) 

 Office of Intergovernmental and Public Liaison 

 Office of Legal Counsel (OLC) 

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Rule of Law Handbook 

Department of Defense (DOD) 

3⁄4	 Secretary of Defense 

o	 Deputy Secretary of Defense 

 Secretary of the Army
 

o	 Joint Chiefs of Staff (JCS) 

 Chairman of JCS 

 Joint Chiefs: J1-J8 

o	 Under Secretary of Defense for Policy 

 Assistant Secretary for Legislative Affairs 

 Assistant Secretary for Stability Operations and Low Intensity Conflict 

• Deputy Assistant Secretary of Defense for Stability Operations
 

 Office of General Counsel 

U.S. Department of Agriculture (USDA) 

3⁄4	 Secretary of Agriculture 

o	 Office of Scientific and Technical Affairs 

o	 Office of Country and Regional Affairs 

o	 Office of Capacity Building and Assistance 

o	 Employees detailed to serve as agriculture advisors to Provincial Reconstruction 

teams in Iraq and Afghanistan 

Department of Commerce 

3⁄4	 Secretary of Commerce 

o	 Afghanistan Investment and Reconstruction Task Force 

o	 Iraq Investment and Reconstruction Task Force 

Department of the Treasury 

3⁄4	 Secretary of Treasury 

o	 Under Secretary for International Affairs 

 Assistant Secretary for International Affairs 

•	 Deputy Assistant Secretary for Regions (Africa/ME, South and East Asia, 

WHA, Europe/Eurasia) 

•	 Deputy Assistant Secretary for International Technical Assistance Policy 

•	 Deputy Assistant Secretary for Trade and Investment Policy 

•	 Deputy Assistant Secretary for Monetary and Financial Policy 

•	 Deputy Assistant Secretary for International Development Finance and Debt 

•	 Deputy Assistant Secretary for Investment Security 

Executive Office of the President, Office of Management and Budget (OMB) 

3⁄4	 Director of the OMB 

o	 National Security Programs 

•	 International Affairs Division 

•	 National Security Division 

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Rule of Law Handbook 

C. US Governmental Agencies Involved in Rule of Law 

A number of governmental entities participate in rule of law operations within and 

outside the context of stability operations. Each of these departments and agencies has a 

somewhat different emphasis and perspective to the rule of law. A brief description of the 

various perspectives by major USG department and agencies involved in rule of law is set forth 

below. 

1. Department of State 

The Department of State (DOS) is responsible for planning and implementing US foreign 

policy. As described above, federal statute assigns the DOS as the pivotal coordinator of US 

reconstruction and development assistance, including rule of law, for present and future 

conflicts. But, for Afghanistan and Iraq, the coordination mechanisms in place prior to NSPD-44 

and the 2009 statute continue to control, i.e., NSPD-1, although S/CRS has recently been 

contributing to civilian planning efforts in Afghanistan.49 The DOS has the mandate to prepare 

for, plan, coordinate, and implement reconstruction and stabilization operations in a wide range 

of contingencies, including disaster relief emergencies, failing and failed states, and post-war 

arenas. Thus, the DOS serves as the center of federal action in creating, managing, and deploying 

response capabilities for a variety of purposes, including advancing host-nation security, good 

governance, free elections, human rights, and rule of law. Where the US military may be 

involved, the DOS will coordinate with the DOD to synchronize military and civilian 

participation. 

As the interagency structure currently stands, the Secretary of State has overall 

responsibility to lead contingency planning in operations and coordinate federal agencies’ 

respective response capabilities. The Secretary’s specific responsibilities include: 

•	 Informing US decision makers of viable options for stabilization activities 

•	 Coordinating US efforts with those of other governments, international and regional 

organizations, NGOs and private companies 

•	 Seeking input from individuals and organizations with country-specific expertise 

•	 Leading development of a robust civilian response capability with a prompt 

deployment capacity and civilian reserve 

•	 Gleaning lessons learned and integrating them into operations 

•	 Coordinating and harmonizing military and civilian participation 

49 See also U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, U.S. DEPT. OF STATE, U.S. DEPT. OF 

DEFENSE, SECURITY SECTOR REFORM 3 (Feb. 2009) (“The Department of State leads U.S. interagency 

policy initiatives and oversees policy and programmatic support to [security sector reform] through its 

bureaus, offices, and overseas missions as directed by NSPD-1, and leads integrated USG reconstruction 

and stabilization efforts as directed by NSPD-44. The Department of State’s responsibilities also include 

oversight of other USG foreign policy and programming that may have an impact on the security 

sector.”). 

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Rule of Law Handbook 

•	 Resolving relevant policy, program or funding disputes among US agencies and 

departments 

Congress funds rule of law programs and related activities primarily through 

appropriations for the DOS. The Director of Foreign Assistance (F) has overall responsibility for 

coordinating the funding for US foreign assistance programs, including rule of law programs and 

activities. It works closely with the DOS bureaus responsible for designing and implementing 

this assistance – typically INL, the appropriate regional bureau, or USAID. These entities then 

identify mechanisms through which to execute the assistance, e.g., through transfers to other 

agencies (such as the DOJ), contracts, and grants. In Afghanistan and particularly Iraq, DOD, 

also discussed below, received specific legislative authority to execute many rule of law 

programs, primarily the training of the Iraqi Police, but also including some civilian law 

enforcement training, civilian justice capacity building, and economic reconstruction. This type 

of authority is unique to these two operations, and therefore, Judge Advocates should be aware 

that DOD does not have the statutory authority to engage in similar activities in other parts of the 

world, and therefore must be cautious about generalizing from programs conducted in those 

theaters. 

Within the State Department, there is no single office charged with planning a rule of law 

operation, although the Bureau for International Narcotics and Law Enforcement Affairs (INL) 

often has the lead. If the mission in question qualifies as a reconstruction & stabilization mission, 

however, the Country Reconstruction and Stabilization Group may be the hub for coordinating 

planning and civilian operations.50 

Within the purview of the Under-Secretary for Political Affairs (P) are the regional 

bureaus and the relevant Country Desk Officers, who have much of the responsibility for 

coordinating efforts on a country-by-country basis. Functional bureaus, such as INL (also falling 

under P), may take the lead for particular issues or programs in a country. For example, INL has 

offices focused on Afghanistan and Iraq that design, implement and manage capacity-building 

programs addressing traditional aspects of the rule of law, such as justice reform and law 

enforcement. Those offices in INL manage and oversee the majority of the rule of law funds 

designated for those two countries. INL also manages and oversees rule of law programs (police, 

criminal justice and corrections) in Pakistan, Kosovo, Haiti, Liberia, Sudan, and Lebanon. It 

partners with DOJ, USAID and a variety of other non-governmental organizations in 

implementing rule of law programs in Africa, South and Central Asia, Eastern Europe, and Latin 

America. In addition to the subject matter experts in its program offices, INL has three senior 

advisors in the Office of Civilian Police and Rule of Law, dedicated to providing advice and 

subject matter expertise on international policing, criminal justice development, and corrections 

reform. The guidance from State’s regional and functional bureaus provides the framework 

within a country for carrying out US missions, programs, and policies in a country, but it is the 

Country Team system that provides the foundation for interagency consultation, coordination, 

and action in the field. 

Within the purview of the Under-Secretary for Global Affairs, there are offices which 

that may also play a role in rule of law related activities. The Bureau of Democracy, Human 

Rights and Labor has smaller programs pertaining to governance issues in Iraq and Afghanistan. 

50 See supra note 17and accompanying text. 

37 Chapter III - Key Players 
Rule of Law Handbook 

The Bureau of Population, Refugees and Migration manages and oversees any humanitarian 

assistance that may be required to care for refugees or to assist in their resettlement. The Bureau 

of International Women’s Issues brings awareness and attention to women’s issues. For example, 

it has supported programs to build the capacity of Iraqi women so that they can participate more 

fully as political and economic leaders. It is also providing support to programs aimed at 

eliminating violence against women and increasing awareness of gender-based violence. 

a) Bureau for International Narcotics and Law Enforcement Affairs (INL) 

Within the DOS, the Bureau for International Narcotics and Law Enforcement Affairs 

(INL) has significant responsibility for the policy design and overseeing actual implementation 

of rule of law initiatives. 

INL advises the Secretary of State, other bureaus in the DOS, and other USG departments 

and agencies on policies to combat international narcotics and crime, and develops programs to 

support those policies. INL programs support two of the Department’s strategic goals: (1) 

achieving peace and security and (2) governing justly and democratically. Counternarcotics and 

anticrime programs also complement the war on terrorism, both directly and indirectly. They do 

so by promoting modernization of, and supporting operations by, foreign criminal justice 

systems and law enforcement agencies charged with the counter-terrorism mission. 

INL works with law enforcement, judges, prosecutors, defense attorneys, border security 

officials, financial intelligence units, anticorruption units, narcotics control units, economic 

development organizations, non-governmental organizations, and other criminal justice system 

counterparts to reinforce host nation governments’ efforts to promote the rule of law. INL also 

funds and oversees US participation in civilian police operations assisting U.N. peacekeeping 

missions. 

INL tailors its programs to bolster capacities of countries around the globe through 

multilateral, regional, and country-specific programs. For example, the International Narcotics 

Control element of the US foreign assistance program enhances the institutional capabilities of 

foreign governments to define and implement their strategies and national programs to prevent 

the production, trafficking, and abuse of illicit drugs. It also includes strengthening the ability of 

law enforcement and judicial authorities in both source and transit countries to investigate and 

prosecute major drug trafficking organizations and their leaders and to seize and block their 

assets. 

In addition to playing a key role in early development and management of post-conflict 

police and corrections programs since the 1990s, such as in Kosovo and Haiti, INL has played an 

increasingly important role in US rule of law operations in recent years, including in 

Afghanistan, Iraq, Sudan, and Lebanon. 

In Afghanistan, INL supports regional training centers in Kandahar, Konduz, Jalalabad, 

Gardez, Bamiyan, Herat and Mazar-i-Sharif; a Central Training Center in Kabul; and a Forward 

Operating Base in Islam Qala. INL efforts in Afghanistan focus primarily on providing salary 

and logistical support for more than “500 police training advisors and mentors” who “engage 

with local Afghan police officials to develop skills and capacity to extend the rule of law 

Chapter III - Key Players 38 
 

 

Rule of Law Handbook 

throughout Afghanistan.”51 In addition to training police in the field, INL works with the Afghan 

Ministry of Interior on payroll and rank reform.52 INL programs in Afghanistan are not limited 

solely to working with the Afghan National Police (ANP). INL is also the largest single provider 

of rule-of-law assistance in Afghanistan, maintaining a full-scale program focused on nationwide 

criminal justice sector development. Based in Kabul and in five provinces, INL supports around 

70 US justice and corrections advisors for training, legal reform, infrastructure support, and 

capacity-building of the Ministry of Justice, Attorney General’s Office, the Supreme Court,53 the 

Central Prison Directorate, and provincial and district justice systems. 

In Iraq, INL’s mission is to help the Government of Iraq develop a sufficiently fair and 

effective criminal justice system so Iraqi citizens will turn to their courts and legitimate 

government institutions, not militias or other forms of “alternative” justice, to resolve their 

disputes. INL provides assistance on all three major aspects of criminal justice development – 

police, courts, and prisons – and on some anti-corruption matters as well. With respect to police, 

INL efforts focus on funding personnel for CENTCOM’s Civilian Police Assistance Training 

Teams (CPATT). These police advisors help “advise, train, and mentor the Iraqi Police Service, 

Ministry of Interior, and Department of Border Enforcement.”54 Additionally, INL provides 

funds to support the Major Crimes Task Force, a USG, DOJ-led interagency law enforcement 

task force that advises specially vetted Iraqi police on the investigation of high-profile crimes.”55 

On the corrections side, through interagency agreements, INL has provided funds to DOJ to 

deploy corrections advisors and trainers to work with the Iraqi Corrections Service (ICS) to help 

ensure Iraqi prisons conform to internationally accepted standards of humane treatment. With 

respect to courts and the judiciary, INL supports a broad range of programs. Included are 

programs to assist the Iraqi judiciary in developing skills to more effectively investigate and 

process criminal cases and administer the courts and the judiciary, to assist the Government of 

Iraq with court and judicial security needs, and to assist the judiciary in better coordinating with 

Iraqi police and corrections entities. Finally, INL supports a number of programs to help the Iraqi 

government combat corruption. 

b) Office of the Coordinator for Reconstruction and Stabilization (S/CRS) 

The Secretary of State created the Office of the Coordinator for Reconstruction and 

Stabilization (S/CRS) in order “to enhance our nation’s institutional capacity to respond to crises 

involving failing, failed, and post-conflict states and complex emergencies.”56 Its mission is to 

“lead, coordinate, and institutionalize USG civilian capacity to prevent or prepare for postconflict situations, and to help stabilize and reconstruct societies in transition from conflict or 

civil strife so they can reach a sustainable path toward peace, democracy, and a market 

51 Fact Sheet, Civilian Police and Rule of Law Programs, Jan. 2, 2008, available at 

http://www.state.gov/p/inl/rls/fs/98167.htm (last visited August 28, 2008).

52 Id. 

53 USAID has purview of Supreme Court reform in Afghanistan. 

54 Id.
 55 Id. 

56 See Department of State, Office of the Coordinator for Reconstruction and Stabilization website, at 

http://www.state.gov/s/crs/ (last visited Sept. 1, 2008). 

39 Chapter III - Key Players 
 

Rule of Law Handbook 

economy.”57 Although central to DOS’s long-term approach to reconstruction, S/CRS was 

originally not tasked with such activities in Afghanistan or Iraq but, recently, has been 

contributing to civilian planning efforts in Afghanistan. 

Since its creation, S/CRS has been pursuing an ambitious agenda with limited resources. 

These tasks include: 

•	 Building standing operational capabilities for rapid civilian response, including: 

Active, Standby and Reserve responders with specialized technical skills, 

coordinated among partner agencies 

•	 Creating a monitoring system to identify states at risk of instability; Developing the 

Interagency Conflict Assessment Framework for use by different USG department 

and agencies to work together to reach a shared understanding of a country’s 

conflict dynamics and consensus on potential entry points for additional USG efforts 

•	 Developing a Strategic Planning Template for use in preparing and running 

missions, as well as a doctrine for joint civilian-military planning 

•	 Creating interagency mechanisms, including the Interagency Management System, 

to manage operations in Washington at the interagency level. with the military at 

Regional Combatant Commands, and in the field 

•	 Providing consulting services and civilian contingency planning for State Bureaus 

facing actual crises 

•	 Seeking to mainstream Conflict Prevention and Transformation across the 

government, including by developing an Interagency Methodology to Assess 

Instability and Conflict 

•	 Engaging other national governments and international organizations 

•	 Engaging in exercises with military counterparts 

•	 Providing instruction to military counterparts on civilian-military coordinating, 

particularly regarding rule of law operations; and 

•	 Compiling lessons learned and best practices, and applying such 

As described above, S/CRS is tasked with developing strategies and identifying states 

that may become unstable and may require stabilization and reconstruction. In addition to 

coordinating the overall USG response, S/CRS is responsible for coordinating with foreign 

countries, the private sector, non-governmental organizations, and international organizations. 

Finally S/CRS has the task of developing a strong civilian agency response capacity for 

reconstruction and stabilization operations. Planning for and coordinating operations for the 

establishment of the rule of law in war-torn countries is one of the pivotal activities for which the 

S/CRS has responsibility. 

57 Department of State, Fact Sheet, Office of the Coordinator for Reconstruction and Stabilization, March 

11, 2005 (S/CRS), available at http://www.state.gov/s/crs/rls/43327.htm (last visited Sept. 1, 2008). 

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Rule of Law Handbook 

In rule of law specifically, S/CRS has made advances in coordinating the rule of law 

activities of the DOS Bureaus, USAID, DOJ, and other civilian partners, and has been active in 

collecting and disseminating lessons learned with civilian and military rule of law experts. 

S/CRS, together with USAID, is in the process of working on a Lessons Learned project 

covering civilians returning from Iraq and Afghanistan PRTs. An indication of how central a 

place rule of law has in civilian R&S efforts, a plurality of the positions in the CRC from each of 

the participating agencies with rule of law responsibilities will be rule of law positions. 

2. United States Agency for International Development (USAID) 

The United States Agency for International Development (USAID) plays both a major 

role in US foreign policy and a principal role in interagency coordination. It is an autonomous 

agency under the policy direction of the Secretary of State through the International 

Development Cooperation Agency, which is headed by the Administrator of USAID. 

USAID administers and directs the US foreign economic assistance program and is the 

lead Federal agency for US foreign disaster assistance and economic and democratic 

development. USAID manages a worldwide network of country programs for natural disaster 

response and economic and policy development, encourages political freedom and good 

governance, and investing in human resource development. Strengthening the rule of law is also 

one of USAID’s core missions. Within the construct of security sector reform, USAID has the 

lead for building the capacity of host nation institutions related to the rule of law.58 

USAID has rule of law and justice sector assistance programs in more than 100 

countries.59 Ordinarily USAID provides its assistance through private contractors. This effort is 

directed towards four primary goals: to promote justice and human rights through the rule of law; 

to promote citizen voice, advocacy and participation; to strengthen democratic, accountable and 

competent governance; and to expand political freedom and competition.60 

USAID strategies to strengthen the rule of law typically include several aspects. Initial 

efforts by the Office of Transition Initiatives (USAID/OTI) focus on times of political crisis and 

entail small, fast, flexible and high-impact activities to support transitions before longer-term 

activities can get underway. DCHA/OTI typically provides assistance on transitional justice, 

human rights, and good governance, responding to the needs of the transition, and working 

closely with other interagency partners. 

58 See SECURITY SECTOR REFORM, supra note 49 at 3 (“USAID’s primary SSR role is to support 

governance, conflict mitigation and response, reintegration and reconciliation, and rule of law 

programs aimed at building civilian capacity to manage, oversee, and provide security and justice.”).

59 USAID is supporting rule of law operations in both Iraq and Afghanistan. See Provincial 

Reconstruction Team http://www.usaid.gov/iraq/pdf/iraqprts_1007.pdf; Press Release, Judge Walks Eight 

Days for Rule of Law Training, (Aug. 8, 2008), available at 

http://afghanistan.usaid.gov/en/Article.353.aspx (last visited Aug. 27, 2009).

60 In FY 2008, USAID increased its budget request for democracy and governance programs to $1.447 

million. USAID, Governing Justly and Democratically Summary of FY2009 Request, available at 

http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/FY2009GJD_Request_Su 

mmary.pdf (last visited Aug. 22, 2009). 

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Rule of Law Handbook 

The USAID Field Mission in country, with support from the Office of Democracy and 

Governance (DCHA/DG), carries out longer-term efforts to establish the rule of law. The 

beginning is to support local efforts to place the rule of law on the political agenda of the country 

of concern. USAID wants to help people decide for themselves that the rule of law is essential 

for development, that genuine progress in advancing the rule of law is achievable, and that 

international cooperation towards that end is useful. Because local leadership on these issues is 

critical for program interventions to be sustained over time, USAID supports strategic planning 

and coordination processes for justice sector reform. 

USAID focuses rule of law support efforts on three inter-connected priority areas: 

supporting legal reform, improving the administration of justice, and increasing citizens' access 

to justice. Legal reform programs include establishing relevant legal and policy frameworks, 

introducing community policing, open and public trials, and training court officials on oral and 

adversarial processes where defendants have the right to confront and challenge evidence and 

witnesses. Additionally, USAID efforts to improve the administration of justice are aimed at 

producing an independent, capable, competent and honest justice system, including courts, 

prosecutors, police, ministries of justice, judicial councils, and other oversight institutions. A key 

aspect here is the transparency of judicial selection and performance, improvement of 

professional education and ethics61 and improving the administration and management capacity 

of legal institutions. 

USAID also supports access to justice programs by increasing public awareness of the 

judicial system, fostering advocacy programs to support reforms and address the needs of 

citizens, and supporting programs targeting special populations (women, persons with disabilities 

and indigent persons). Finally, USAID also supports the protection of human rights, through 

direct interventions to address immediate needs, and by building the capacity of local human 

rights organizations and institutions. 

a) USAID Programs in Iraq 

USAID has several programs aimed at facilitating democratic transformation in Iraq. It 

worked to support the constitutional referendum and two national elections in 2005. It also has 

several capacity-building programs, and is supporting one program assessing the nature of 

community conflicts in order to build conflict mitigation networks.62 

On the economic front, USAID has worked with the Department of the Treasury, and 

other agencies to help build Iraqi governing capacity, particularly at the Central Bank of Iraq and 

Ministry of Finance. Assistance for the Ministry of Finance has included the design and 

implementation of a Financial Management Information System (FMIS), to track its budget and 

expenses; technical assistance for Iraqi World Trade Organization accession; and a private-sector 

development program, known as Izdihar, meaning “prosperity” in Arabic. Izdihar has helped 

provide more than $150 million in micro-loans since 2003,63 along with the establishment of 

61 OFFICE OF DEMOCRACY AND GOVERNANCE, US AGENCY FOR INTERNATIONAL DEVELOPMENT, 

OCCASIONAL PAPERS SERIES, DOC. #PN-ACR-220, ACHIEVEMENTS IN BUILDING AND MAINTAINING THE 

RULE OF LAW 2-6, (Nov. 2002). 

62 http://www.usaid.gov/press/releases/2007/pr071009.html (last visited Aug. 27, 2009) 

63 http://www.usaid.gov/press/releases/2008/pr080325.html (last visited Aug. 27, 2009). 

Chapter III - Key Players 42 
 

Rule of Law Handbook 

microfinance institutes. USAID has also had infrastructure programs, focusing, for example on 

electrical generation, sewage treatment, and water treatment systems. 

USAID has also had programs focused on strengthening the essential primary health care 

services throughout Iraq, supporting immunizations, and improving access to education through 

rehabilitating schools and providing textbooks. 

Of particular interest to Judge Advocates engaged in rule of law work is USAID’s Iraq 

Rapid Assistance Program (IRAP). It is a three-year (Sept 2007 – Sept 2010), $165 million 

program that will allow Provincial Reconstruction Teams (PRTs) and embedded Provincial 

Reconstruction Teams (e-PRTs) to provide grants in support of activities that meet essential 

needs in their areas of operation. IRAP will allow PRTs and e-PRTs to design and generate grant 

proposals and provide funding with speed and flexibility, while maintaining administrative and 

management control. Types of activities funded include women’s programs, economic 

development, governance, rule of law, education, environment, elections, agriculture and youth 

activities. Targeted beneficiaries include but are not limited to indigenous groups, cooperatives, 

NGOs, associations, media, local government, private sector and student groups. 

In coordination with DOS, USAID created a database was created, which includes 

information on IRAP.64 Specifically, the database provides information on the type of grant 

proposals funded under this mechanism as well as copies of all proposals received from 

PRTs/ePRTS. It also includes the policy guidelines for the ranking of proposals. 

b) USAID Programs in Afghanistan 

In Afghanistan, USAID has engaged in economic infrastructure projects, economic 

growth programs, and improvements of educational and health service capacity. Economic 

infrastructure projects include: rehabilitating roads; expanding access to reliable, low-cost 

electricity; and establishing irrigation systems to improve lands and health of livestock. USAID’s 

economic growth programs assist Afghanistan’s businesses with credit, training, and other 

support services. They also strengthen land titling and property rights; and help Afghanistan 

develop a market-driven agricultural sector by improving linkages between suppliers, producers, 

and markets. Furthermore, the growth programs provide farmers with improved farm 

technologies and increased access to financial services. The programs work with Afghanistan to 

increase revenue collection; improve the legal and regulatory framework to increase private 

sector investment, and build the government’s capacity to manage the economy. 

USAID’s improvements to educational and health service capability are multifold. In 

terms of education, USAID has constructed or refurbished over 680 schools, distributed more 

than 60 million textbooks, created an accelerated learning program which is made up by more 

than 50% women, and supported more than 45,000 students in community-based education 

classes in areas where there is no access to formal schools. USAID also implemented the 

Ministry of Education’s teacher training program in 11 provinces; and supported more than 

50,000 teachers in the formal school system. In terms of health services, USAID has constructed 

or refurbished over 670 clinics throughout the country and established over 360 health facilities. 

64 The database is at: http://iraqdb.msi-inc.com (last visited Aug. 27, 2009). For log on, a password is 

required, which you can request by sending an e-mail to the following help desk 

at: prs-help@msi-inc.com. Passwords are usually created within 24 hours. 

43 Chapter III - Key Players 
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USAID has also trained over 1,000 midwives to work in hospitals and clinics throughout the 

country. 

Besides educational program, USAID also has programs supporting the empowerment of 

women in that country, from basic education to training programs for female judges and 

journalists. Moreover, USAID has programs to foster the growth of self-help savings and 

investment groups for women. 

Going forward, USAID support will focus on building the capacity of democratic 

institutions to strengthen governance and civil society and improve the management of human 

resources, financial resources, and service delivery of priority national ministries and 

municipalities. 

3. Department of Justice (DOJ) 

The Department of Justice provides legal advice to the President, represents the 

Executive Branch in court, investigates Federal crimes, enforces Federal laws, operates Federal 

prisons, and provides law enforcement assistance to states and local communities. The Attorney 

General heads the Department of Justice; supervises US attorneys, marshals, clerks, and other 

officers of Federal courts; represents the US in legal matters; and makes recommendations to the 

President on Federal judicial appointments and positions within the DOJ. While primarily 

focused on domestic legal activities, the DOJ’s role in rule of law operations abroad is growing. 

In cooperation with DOD, DOS, and other interagency actors, and with funding from 

DOS, DOJ is now engaged in more than 60 countries in overseas rule of law work. DOJ works 

with foreign governments around the world to develop professional and accountable law 

enforcement institutions that protect human rights, combat corruption, and reduce the threat of 

transnational crime and terrorism. It does this through the overseas work of its law enforcement 

agencies – including the Federal Bureau of Investigation (FBI), the Drug Enforcement 

Administration (DEA), the US Marshals Service (USMS), and the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF). It also does so through its specialized international prosecutorial 

and police development offices within the Criminal Division, the Office of Overseas 

Prosecutorial Development, Assistance and Training (OPDAT), and the International Criminal 

Investigative Training Assistance Program (ICITAP). The Office of the Deputy Attorney 

General provides policy oversight and coordination of DOJ’s many efforts, while DOS, 

principally through DOS/INL, provides funding and policy guidance for all DOJ capacitybuilding programs, including those of OPDAT and ICITAP, which place federal prosecutorial 

and police experts, respectively, in foreign countries for long-term assignments designed to focus 

on the comprehensive development of all pillars of the criminal justice system. 

a) Office of the Deputy Attorney General. 

The Office of the Deputy Attorney General issues policy guidance and direction to DOJ 

components involved in rule of law activities. A representative of the office represents DOJ in 

the Reconstruction and Stabilization PCC and other interagency policy bodies. The Deputy 

Attorney General created the position of Counselor for Rule of Law to focus exclusively on this 

mission. He or she is is also responsible, in particular, for coordination of DOJ activities in Iraq 

and Afghanistan. 

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Rule of Law Handbook 

Additionally, at the request of the former Ambassador to Iraq, the Attorney General 

deployed a senior attorney to serve as the Embassy’s Rule of Law Coordinator. The Rule of Law 

Coordinator serves as the Ambassador’s principal agent for coordination of all rule of law 

programs and activities in Iraq, whether performed by DOJ components or other departments and 

agencies represented at the US Mission to Iraq. While serving under the authority of the Chief of 

Mission, the Coordinator reports directly to the Deputy Attorney General for technical policy 

guidance. 

Finally, the Office of the Deputy Attorney General oversees the activities of the other 

senior DOJ officials deployed to Iraq, including the Justice Attaché. The Justice Attaché who is 

the senior DOJ official in Iraq coordinating DOJ activities in support of the Mission, the Director 

of the Law and Order Task Force (LAOTF), and the Regime Crimes Liaison. Each of these 

officials reports directly to the Deputy Attorney General. 

b)	 Criminal Division’s International Criminal Investigative Training Assistance 

Program (ICITAP) 

One of DOJ’s agencies involved in rule of law in a number of countries is the 

International Criminal Investigative Training Assistance Program (ICITAP). ICITAP’s rule of 

law mission is to support foreign policy goals by assisting foreign governments in developing the 

capacity to provide professional law enforcement services based on democratic principles and 

respect for human rights, combating corruption, and reducing the threat of transnational crime 

and terrorism. ICITAP’s activities encompass two principle types of assistance projects: (1) the 

development of police forces in the context of international peacekeeping operations, and (2) the 

enhancement of capabilities of existing police forces in emerging democracies. Assistance is 

based on internationally recognized principles of human rights, rule of law, and modern police 

practices. 

The intent of ICITAP’s training and assistance programs is to develop professional 

civilian-based law enforcement institutions.65 ICITAP designs this assistance is designed to: (1) 

enhance professional capabilities to carry out investigative and forensic functions; (2) assist in 

the development of academic instruction and curricula for law enforcement personnel; (3) 

improve the administrative and management capabilities of law enforcement agencies, especially 

their capabilities relating to career development, personnel evaluation, and internal discipline 

procedures; (4) improve the relationship between the police and the community its serves; and 

(5) create or strengthen the capability to respond to new crime and criminal justice issues. Since 

its creation, ICITAP has conducted projects in nearly 40 countries. 

Individuals assigned to ICITAP have been working in Iraq since 2003. ICITAP personnel 

previously provided assistance through the Civilian Police Assistance Training Teams (CPATT) 

under a program funded and managed by DOS/INL, and currently assists in corrections, 

65 ICITAP possesses the following expertise: basic police skills, corrections, public integrity and anticorruption, criminal justice coordination, forensics, organizational development, academy and instructor 

development, community policing, transnational crime, specialized tactical skills, marine and border 

security and information systems. Fact Sheet, The Department of Justice Mission in Iraq: International 

Criminal Investigative Training Assistance Program (ICITAP) available at 

http://www.usdoj.gov/criminal/icitap/programs/iraq/ (last visited Sept. 3, 2009). 

45 Chapter III - Key Players 
 

Rule of Law Handbook 

anticorruption, border security, forensics, and judicial investigations programs.66 After helping to 

found the Baghdad Police College, ICITAP personnel engaged in mentoring and advising Iraqi 

police who serve as instructors at the Police College. Additionally, ICITAP has served as 

implementing partner in a DOS program to develop the investigative capabilities of the 

Commission on Public Integrity – an independent, autonomous division of the Iraqi government 

that focuses on preventing government corruption, and promoting transparency and the rule of 

law in Iraq. It has provided significant assistance in training and mentoring Iraqi Anti-Corruption 

Units, Iraqi Special Investigative Units, and Facilities Protections Service guards.67 Finally, 

ICITAP brings extensive experience and expertise in assessing Iraqi correctional facilities 

against international prison treatment standards. ICITAP has helped reestablish the Iraq 

Corrections Service (ICS) and worked with Iraqi leaders to develop a national prison system. It 

has also deployed a team of 80 corrections training officers to provide on-site training and 

mentoring to Iraqi staff at prison facilities throughout the country and to assist the Iraq Ministry 

of Justice in strengthening the overall management of the corrections service. 

c)	 Office of Overseas Prosecutorial Development, Assistance and Training 

(OPDAT) 

Another DOJ entity is the Office of Overseas Prosecutorial Development, Assistance and 

Training (OPDAT). OPDAT’s mission is “to develop and administer technical assistance 

designed to enhance the capabilities of foreign justice sector institutions and their law 

enforcement personnel, so they can effectively partner with the Department of Justice in 

combating terrorism, trafficking in persons, organized crime, corruption, and financial crimes.”68 

OPDAT rule of law goals relate to initiatives in international training and criminal justice 

development. In this regard, OPDAT provides technical support, training and instruction to 

judges, court staff, prosecutors, and law enforcement officers on management and substantive 

and procedural law. The Office is involved in such training programs in South and Central 

America, the Caribbean, Russia, other Newly Independent States, and Central and Eastern 

Europe. 

OPDAT has more than 40 Resident Legal Advisers (RLAs) in 30 countries. RLAs are 

experienced federal or state prosecutors stationed in a host country for at least one year. They 

provide full-time advice and technical assistance in establishing fair and professional justice 

sector institutions and practices.69 

At this time, there are now 10 RLAs in Iraq. RLAs are assigned to Provincial 

Reconstruction Teams, LAOTF, and at the Rusafa Rule of Law Complex, and Embassy 

Baghdad.70 These individuals have helped facilitate the creation of Central Criminal Court 

panels, often referred to as Major Crimes Courts, for Mosul, Tikrit, and Kirkuk. Finally, OPDAT 

66 Id. 

67 Id. 

68 Fact Sheet, OPDAT-OPDAT Mission, available at
 

http://www.usdoj.gov/criminal/opdat/mission/mission.html (last visited Aug. 13, 2008). 

69 Fact Sheet, USDOJ: The Department of Justice Mission in Iraq: Office of Overseas Prosecutorial 

Development, Assistance and Training available at http://www.usdoj.gov/iraq/opdat.html (last visited 

Aug. 13, 2008). 

70 http://www.usdoj.gov/criminal/opdat/recent-achieve/rachieve.html (last visited Aug. 10, 2008). 

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Rule of Law Handbook 

personnel have created courses designed to train Iraqi judicial officials in topics ranging from 

human rights to scientific evidence to “special challenges presented by the prosecution of 

insurgency and terrorist cases.”71 

OPDAT also serves as the Department’s liaison between various private and public 

agencies that sponsor visits to the United States for foreign officials who are interested in the 

United States legal system. OPDAT makes or arranges for presentations explaining the US 

criminal justice process to hundreds of international visitors each year. 

d) Other DOJ Activities in Iraq 

The Department of Justice’s law enforcement components provide special investigative 

training and assistance to Iraqi law enforcement through different components. Through a DOSfunded program, one of the primary activities has been the establishment of the Major Crimes 

Task Force (MCTF). The MCTF is a unique joint Iraqi-US organization providing on-the-job 

training, support and mentoring to Iraqi law enforcement and task force members. Law 

enforcement agents from the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(ATF), the Drug Enforcement Administration (DEA), and the US Marshals Service (USMS), 

work in close partnership with their Iraqi counterparts to conduct investigations of serious and 

often highly sensitive criminal acts. 

The FBI has deployed a Legal Attaché (Legat) to Iraq who, as a senior-level Special 

Agent serves as the FBI liaison to the Embassy, MNF-I, and the international community. The 

Legat office provides guidance and assistance on a variety of law enforcement issues, including 

criminal investigations, hostage rescue, counter-intelligence and training, biometrics, and public 

corruption, as well serves in a supervisory role over the MCTF. The FBI also has a 

counterterrorism unit in Iraq that deploys rotating teams of specialists to provide training to the 

Iraqi police. 

ATF has an Attaché Office in the US Embassy in Baghdad. Its mission is to create the 

Iraq Weapons Investigation Cell to investigate and account for USG-issued munitions; establish 

the ATF Combined Explosives Exploitation Cell which will seek to identify the source countries 

for explosives recovered in Iraq; and to engage in a targeted effort to investigate diversion, 

contraband, and cigarette theft throughout the country. ATF also has provided post-blast 

investigation and explosives/IED-related training to the Iraqi police. 

The US Marshals Service (USMS) is also present in Iraq. With funding and policy 

guidance from DOS/INL, the USMS has provided safe housing for Iraqi judges, security for 

high-profile prisoners awaiting trial, safe houses and secure courthouses, and implemented a 

witness security program for Iraqi trials. US Deputy Marshals have conducted numerous 

courthouse security assessments, advising Iraqis on procedures and technologies that will 

improve the safety of civil and criminal courts throughout Iraq. The USMS has also trained 

hundreds of security personnel, including 120 Iraqi police assigned to the Iraqi High Tribunal 

courthouse. 

Finally, the DEA also has a small presence, having delivered courses in intelligence and 

intelligence analysis to the Iraqi police, and currently supports the MCTF. 

71 http://www.usdoj.gov/iraq/opdat.html (last visited Aug. 13, 2008). 

47 Chapter III - Key Players 
Rule of Law Handbook 

In February 2007, MNF-I formed the Law and Order Task Force at the Rusafa Rule of 

Law Complex in order to build Iraqi capacity for independent, evidence-based, transparent, and 

evenhanded investigation and trial of major crimes before the Central Criminal Court of Iraq. At 

DOD’s request, DOJ has deployed personnel to serve as the Director of the Task Force, as well 

as other attorney and investigative personnel. The task force consists of coalition civilian and 

military attorneys, paralegals, and criminal investigators. It trains, mentors, and assists Iraqi 

police and judges to reform, strengthen and expand the rule of law. The LAOTF compound also 

provides secure housing for judges and a secure courthouse allowing members of the Iraqi 

judiciary to adjudicate cases in a safe environment. 

To support Iraqi efforts to prosecute members of the former Iraqi regime, the Justice 

Department established the Regime Crimes Liaison Office (RCLO). With more than 140 

personnel at its height, serving a variety of advisory, security, investigative and support 

functions, the RCLO supports and assists the Iraqi High Tribunal (IHT). RCLO is currently in 

transition into a more supportive role in which it will continue to advise the IHT until the court 

has completed its caseload. 

e) Other DOJ Activities in Afghanistan 

DOJ’s largest presence in Afghanistan comes from the DEA, but also present are the FBI, 

USMS, police investigation trainers/mentors, and Senior Federal Prosecutors. The prosecutors 

serve as trainers/mentors to a select group of Afghan investigators, prosecutors and judges at the 

Criminal Justice Task Force (CJTF), the Central Narcotics Tribunal (CNT), and assisting the FBI 

in the establishment of a Major Crimes Task Force, which should be in place by the end of 2009. 

The DEA has stationed Special Agents and Intelligence Analysts to enhance 

counternarcotics capabilities in Afghanistan. The DEA provides counternarcotics training to 

Afghan security forces such as the Counternarcotics Police – Afghanistan (CNP-A). Together 

with the Department of Defense, DEA trainers have embarked on a multi-year mission to make 

the CNP-A’s National Interdiction Unit capable of independent operations within Afghanistan. 

DEA has also established specially trained, Foreign-deployed Advisory Support Teams (FAST). 

The FAST program currently consists of three teams of ten specially trained agents and analysts, 

who deploy to Afghanistan for 120 days at a time to assist the Kabul Country Office and the 

CNP-A in the development of their investigations. FAST members are DEA agents who are 

trained criminal investigators, with some military training. FAST teams provide guidance to their 

Afghan counterparts while also conducting bilateral investigations aimed at the region’s 

narcotics trafficking organizations. FAST operations, which DOD supports and largely funds, 

also help with the destruction of existing opium storage sites, clandestine heroin processing labs, 

and precursor chemical supplies directly related to US investigations. 

As of 2008, DOJ has six Senior Federal Prosecutors and remain funded for three senior 

criminal investigator trainers/mentors at the Criminal Justice Task Force (CJTF) and the Central 

Narcotics Tribunal (CNT). Each prosecutor serves a minimum one-year tour of duty. To date, 

Assistant United States Attorneys (AUSAs) have helped the Afghans craft a comprehensive 

counternarcotics law that created a specialized investigative/prosecutorial task force and a 

specialized court with exclusive nationwide jurisdiction for mid and high level narcotics 

trafficking cases in Afghanistan. With the new laws, and with training and mentoring, the 

Afghans have begun the use of new and advanced investigative techniques and prosecutorial 

methods and tools. The CNT has successfully heard hundreds of cases. The AUSAs have also 

Chapter III - Key Players 48 
Rule of Law Handbook 

been instrumental in assisting in the removal of narco-traffickers to the United States for trial. 

These experienced prosecutors routinely provide guidance and advice to the Afghan Attorney 

General, United States Embassy officials, and various US law enforcement entities operating incountry. 

The ATF has also some presence in Afghanistan, having recently completed its first 

Military Post-blast Investigation Techniques course for all services, with more planned. 

The FBI personnel in Afghanistan work on criminal investigations and counter-terror 

missions. Currently, the FBI has a Legal Attaché and two Assistant Legal Attachés stationed at 

the US Embassy in Kabul, as well as more than 33 Special Agents, technicians, and analysts who 

serve 90-day details in Afghanistan. Their priorities include conducting detainee interviews and 

biometric processing; providing technical support and intelligence in order to identify trends, 

target IED makers and enable both offensive and defensive counter operations by coalition 

forces; exploiting the thousands of documents seized from Al Qaeda and Anti-Coalition Forces; 

and providing counterterrorism training. The FBI is also in the process of establishing a Major 

Crimes Task Force for Afghanistan. 

Finally, rotating teams of Deputies from the USMS provide security to personnel at the 

CJTF and help to establish a judicial security force for the CNT. Additionally, they have 

provided security design advice for Counternarcotics Justice Center in Kabul, which opened in 

May 2009. This new facility will not only provide a secure environment for the daily activities of 

the CJTF and CNT, but will also include prisoner detention facilities, secure courtrooms, and a 

dining facility for the Afghan security forces and judicial personnel. 

4. Department of Defense (DOD) 

As conceptualized by this Handbook, DOD engages in rule of law operations within the 

full spectrum of operations, both by how it engages in offensive and defensive operations and 

when it engages in stability operations. 

The conduct of offensive and defensive operations in accordance with the rule of law is 

not the subject of a distinct policy or organization within DOD, but rather a core value of a force 

committed to compliance with both host nation and international law. 

DODD 3000.05, Military Support for Stability, Security, Transition, and Reconstruction 

most completely states DOD’s policy on rule of law operations conducted in the context of 

stability operations. This directive establishes DOD policy, provides guidance on stability 

operations and assigns responsibilities within DOD for planning, training, and preparing to 

conduct and support stability operations pursuant to the legal authority of the Secretary of 

Defense. The Directive establishes as DOD policy that stability operations are a core US military 

mission that shall be given priority comparable to combat operations, and are to be explicitly 

addressed and integrated across all DOD activities including doctrine, organizations, training, 

education, exercises, material, leadership, personnel, facilities, and planning. 

The purpose of DOD stability operations efforts is to increase security by supporting 

stability in a society in a manner that advances US interests. In the short-term, stability 

operations aim to provide immediate security and attend to humanitarian concerns in a region 

affected by armed hostilities. The long-term goal is to establish an indigenous capacity to sustain 

a stable, democratic and free-market society that abides by the rule of law. 

49 Chapter III - Key Players 
Rule of Law Handbook 

DOD expects rule of law operations to be particularly important in the immediate 

aftermath of major ground combat operations, when it is imperative to restore order to the 

civilian population when the routine administration of the society is disrupted by combat. The 

DOD emphasis in the rule of law is to foster security and stability for the civilian population by 

supporting the effective and fair administration and enforcement of justice, preferably by host 

nation institutions. A whole host of agencies, including the civilian agencies discussed elsewhere 

in this chapter carry out rule of law operations, frequently in conjunction military participants, 

including Judge Advocates, Civil Affairs, and Military Police. 

a) Judge Advocates 

It is impossible to understand fully at this point the implications implications for the JAG 

Corps of the Pentagon’s recent embrace of stability operations. However, it is apparent Judge 

Advocates are conducting rule of law operations in post-conflict Iraq and Afghanistan, as 

discussed below in Chapter IX. Judge Advocates’ involvement in rule of law takes on one of 

several roles. These include acting as an adviser to commanders and their staff on legal reform 

initiatives, as an instructor to host nation attorneys on military justice, as a mentor to judges and 

governmental officials, as a drafter of host-nation laws and presidential decrees, and as a 

facilitator at rule of law conferences. Some of the specific tasks performed by Judge Advocates 

are: 

•	 Determining which HN offices, ministries, or departments have the legal authority 

to evaluate, reform, and implement the law and execute its mandates. 

•	 Evaluating and assisting in developing transitional decrees, codes, ordinances, 

courts, and other measures intended to bring immediate order to areas in which the 

HN legal system is impaired or nonfunctioning. 

•	 Evaluating HN law, legal traditions, and administrative procedures in light of 

international legal obligations and human rights standards and when necessary, 

providing appropriate assistance to their reform. 

•	 Evaluating training given in light of international legal obligations and human 

rights standards and providing assistance to improve training. This training is given 

to HN judges, prosecutors, defense counsel, legal advisors, court administrators, and 

police and corrections officials. 

•	 When necessary, serving as legal advisors for transitional courts. 

•	 Advising commanders and others on the application of international, U.S. domestic, 

and HN law that is considered in restoring and enhancing rule of law in the host 

nation. 

•	 Advising commanders and U.S., international, and HN authorities on the legality, 

legitimacy, and effectiveness of the HN legal system including its government’s 

compliance with international legal obligations and domestic law. 

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Rule of Law Handbook 

• Supporting the training of US personnel in the HN legal system and traditions.72 

Further, because they serve as legal advisors to commanders, Judge Advocates have a 

special role in assisting US forces to comply with the rule of law in their own offensive and 

defensive operations or in joint US/host nation operations. 

b) Civil Affairs 

Military Civil Affairs (CA) units can also play a key role in building host nation’s legal 

capabilities. Capable of supporting strategic, operational, and tactical levels of command, CA 

units assist long-term institution building through “functional area” teams. The CA functional 

areas include rule of law, economic stability, governance, public health and welfare, 

infrastructure, and public education and information.73 Civil Affairs doctrine indicates the rule of 

law section has the following capabilities: 

•	 Determine the capabilities and effectiveness of the HN legal systems and the impact 

of those on civil military operations (CMO). 

•	 Evaluate the HN legal system, to include, reviewing statutes, codes, decrees, 

regulations, procedures, and legal traditions for compliance with international 

standards, and advising and assisting the HN and other rule of law participants in 

the process of developing transitional codes and procedures and long term legal 

reform. 

•	 Evaluate the personnel, judicial infrastructure, and equipment of the HN court 

system to determine requirements for training, repair and construction, and 

acquisition. 

•	 Provide support to transitional justice, to include acting as judges, magistrates, 

prosecutors, defense counsel, legal advisors, and court administrators when 

required. 

72 U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY D-2 – D-3 

(April 15, 2009) 

73 JOINT CHIEFS OF STAFF, JOINT PUB. 3-57, CIVIL MILITARY OPERATIONS at I-20 (8 July 2008). Civil 

Military Operations (CMO) are “the activities of a commander that establish collaborative relationships 

among military forces, governmental and nongovernmental civilian organizations and authorities, and the 

civilian populace in a friendly, neutral, or hostile operational area in order to facilitate military operations 

are nested in support of the overall U.S. objectives.” Id at vii. At the operational level, CMO take the 

form of missions supporting security cooperation feature programs to build relationships and mitigate the 

need for force; improve health service infrastructure; movement, feeding, and sheltering of dislocated 

civilians (DCs); police and security programs; building FN government legitimacy; synchronization of 

CMO support to tactical commanders; and the coordination, synchronization, and, where possible, 

integration of interagency, IGO, and NGO activities with military operations.” At the tactical level, CMO 

include “support of stakeholders at local levels, and promoting the legitimacy and effectiveness of U.S. 

presence and operations among locals, while minimizing friction between the military and the civilian 

organizations in the field. Tactical-level CMO normally are more narrowly focused and have more 

immediate effects. These may include local security operations, processing and movement of DCs, project 

management and project nomination, civil reconnaissance, and basic health service support (HSS). 

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Rule of Law Handbook 

•	 Coordinate rule of law efforts involving US and coalition military, other US 

agencies, intergovernmental organizations (IGOs), non-governmental organizations 

(NGOs), and HN authorities. 

•	 Assist the Staff Judge Advocate (SJA) in educating and training US personnel in 

indigenous legal system, obligations, and consequences. 

•	 Advise and assist the SJA in international and HN legal issues as required. 

•	 Assist the SJA with regard to status of forces agreement (SOFA) and status of 

mission agreement issues. 

•	 Provide technical expertise, advice, and assistance in identifying and assessing 

indigenous public safety systems, agencies, services, personnel, and resources. 

•	 Advise and assist in establishing the technical requirements for government public 

safety systems to support government administration (police and law enforcement 

administration and penal system.)74 

Many Judge Advocates serve in CA units and will be particularly familiar with CA 

capabilities. Judge Advocates not part of CA units should seek out available CA resources and 

expertise whenever contemplating a rule of law project. 

c) Military Police 

Military police (MP) units specifically train to support law and order missions. MP units 

train specifically to operate detention facilities and prisoner of war camps. 

The US military also possesses criminal investigation units, such as the Air Force Office 

of Special Investigations (AFOSI), Naval Criminal Investigative Service (NCIS) and Army 

Criminal Investigation Command (USACIDC). These units provide the full range of 

investigative capabilities comparable to a civilian law enforcement agency, including forensic 

laboratories, ballistics experts, narcotics experts, computer crimes specialists, and polygraphists. 

MPs and investigators deploy in support of rule of law missions to train host-nation 

military personnel in the full spectrum of police tasks, including: 

•	 Arrest and interrogation techniques 

•	 Prison security and procedures 

•	 Tactical doctrine 

•	 Crowd control 

•	 Combating organized crime 

•	 Forensics and evidence collection 

•	 Protection of sensitive facilities 

•	 Election security 

74 U.S. DEP’T OF ARMY, FIELD MANUAL 3-05.40, CIVIL AFFAIRS OPERATIONS 2-8 – 2-9 (29 Sept. 2006). 

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Rule of Law Handbook 

• VIP security 

The MP community conceives of rule of law projects as the restoration of the civil 

authority triad: judicial systems, law enforcement, and penal systems. To assist in the restoration 

process, the MPs are focusing on “police services with a greater emphasis on rule of law through 

the issuance, execution, and disposition of warrants, evidence and records as well as detention 

operations focused to achieve uniform effects in transitioning to judicial procedures and 

oversight, across the theater.” Drawing from one of their MP skills, strategic law enforcement 

operations and training, MPs are filling billets within Police Transition / Mentor Teams (PTT / 

PMT) to train host nation police in apprehension, inprocessing, investigation, adjudication, and 

incarceration. 

In the area of detention operations, MPs are shifting focus from a law of armed conflict 

model of detain and release to a rule of law model based on indictments and convictions. While 

detention operations continue to emphasize proper care and custody of detainees, the rule of law 

model builds on care and custody to include population engagement. The population engagement 

model is a four step process involving detention, assessment, reconciliation, and transition. 

Ultimately, this model defines victory as establishing alliances with moderate detainees, 

empowering moderates to marginalize violent extremists, and providing momentum to the 

process of reconciliation with host nation society. 

As operational environments shift from conflict to order, leaders must maintain 

awareness of MP capabilities to ensure their effective utilization. Typically, within a Brigade 

Combat Team, there is a Provost Marshal cell and a military police platoon within the Brigade 

Special Troops Battalion. These Soldiers offer a range of skills on law enforcement techniques. 

These range from the ability to train on effective tactical site exploitation and handling of 

evidence to more sophisticated methods of investigating complex crimes. As operations shift 

from active combat to a law-enforcement-intensive model, MP organizations can serve as 

valuable resources. In addition to serving as training resources for host nation agencies, they can 

also provide training to US troops conducting security operations, both on how to conduct 

police-oriented population engagements effectively and on important matters such as evidence 

collection and preservation. These will become increasingly important as the host nation judicial 

system becomes capable of criminalizing insurgent activities. The organic availability of MPs, 

along with their versatility, makes them extremely effective in supporting the rule of law. 

d) Defense Institute of International Legal Studies (DIILS) 

In addition to Military Police, Judge Advocates, and Civil Affairs, the Defense Institute 

of International Legal Studies (DIILS) can provide rule of law training assistance to host-nation 

institution building. DIILS’ mission is to provide “expertise in over 300 legal topics of Military 

Law, Justice Systems, and the Rule of Law, with an emphasis on the execution of disciplined 

military operations through both resident courses and mobile education teams.”75 DIILS, a part 

of the Defense Security Cooperation Agency (DSCA), works with US Embassy Country Teams 

and host nations to provide timely, effective and practical seminars to lawyers and non-lawyers. 

75 Defense Institute of International Legal Studies website at http://www.diils.org (last visited Aug. 10, 

2008). 

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Rule of Law Handbook 

The goal is teaching operations, including post-conflict reconstruction, within the parameters of 

international law.76 

e) All Operational Forces 

While Judge Advocates, Civil Affairs personnel, and Military Police may have 

specialized skills for some specialized roles, rule of law practitioners should never forget that all 

operational forces have a role to play in furthering the seven rule of law effects. The vital role of 

every Soldier and Marine is recognized in doctrine by DOD Directive 3000.05 and the Field 

Manual 3-24, Counterinsurgency.

77 OIF and OEF are replete with examples of Second 

Lieutenants giving classes on human rights to Iraqi police78 or infantry companies partnering 

with Iraqi police to maintain security in their communities.79 JAs, MPs, and CA personnel should 

mainstream rule of law operations so that all deployed personnel participate. If they fail to do so, 

they will not only miss out on a tremendously powerful resource of accomplishing the rule of 

law mission, they also run the risk of losing the command’s attention to rule of law as merely a 

“specialized” line of operation. Moreover, it is only the operational forces themselves that can 

further the effects of the rule of law by actually observing the rule of law – and engaging host 

nation institutions wherever possible – in the conduct of operations. Any approach to rule of law 

that views it as the purview of lawyers ignores that, in any society that has some claim to the 

principle, the rule of law is claimed not by the lawyers but by the citizenry writ large. 

D. US Embassy and its Country Team 

Because DOS has the lead on foreign policy matters, including reconstruction and 

stability operations, it is critical for Judge Advocates to be able to work with the US embassy 

country team of each host nation. The Ambassador and the Deputy Chief of Mission (DCM) at 

each US embassy head the team of USG personnel assigned to each host-nation, collectively 

known as the “Country Team.” DOS members of the team, in addition to the Ambassador and 

the DCM, are heads of the Political, Economic, Administrative, Consular, and Security sections 

of the embassy. The remainder of the team encompasses the senior representatives of each of the 

other USG agencies present at the embassy. 

The Country Team system provides the foundation for interagency consultation, 

coordination, and action on recommendations from the field and effective execution of US 

missions, programs, and policies. The Country Team concept encourages agencies to coordinate 

their plans and operations and keep one another and the Ambassador informed of their activities. 

Although the US area military commander (the combatant commander or a subordinate) is not a 

76 Id. 77 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 1-131 (15 Dec. 2006). (“Soldiers 

and Marines help establish HN institutions that sustain that legal regime, including police forces, court 

systems, and penal facilities.”). 

78 See Michael J. Totten, Final Mission Part III, MIDDLE EAST JOURNAL, Feb. 12, 2008, 

http://www.michaeltotten.com/archives/2008/02/the-final-missi-2.php (last visited Sept. 1, 2008). 

79 See Herschel Smith, Operation Alljah and the Marines of 2nd Battalion, 6th Regiment, THE CAPTAIN’S 

JOURNAL, http://www.captainsjournal.com/2007/08/22/operation-alljah-and-the-marines-of-2ndbattalion-6th-regiment/ (last visited Aug. 27, 2009). 

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member of the embassy, the commander may participate or be represented in meetings and 

coordination by the Country Team. 

Assuming there is a US Embassy in the host-nation, the Judge Advocate conducting rule 

of law operations should ensure close coordination directly or through his chain of command 

with the pertinent members of the US Embassy Country Team or their offices. The composition 

of Country Teams may vary from one embassy to the next. For rule of law operations, the key 

players at the US embassy for the Judge Advocate are: 

•	 The US Ambassador/Chief of Mission 

•	 The Deputy Chief of Mission (DCM) 

•	 The Political Officer (POL OFF) 

•	 The Regional Security Officer (RSO) 

•	 Department of Justice (Senior Legal Advisor/Resident Legal Advisor/Judicial 

Attaché) 

•	 The FBI Legal Attaché (Legat) 

•	 The Legal Adviser (L, Staffed by DOS - only in Baghdad, The Hague and Geneva) 

•	 The Defense Attaché (DATT) 

•	 USAID Mission Director 

•	 USAID Democracy and Governance Officer 

Each member of the Country Team has a different portfolio and is bound by the parent 

organization’s authorities, policies, and resources. For example, the Legat is a FBI Special Agent 

who, as part of his or her portfolio, conducts FBI business writ large. The Bureau of International 

Narcotics and Law Enforcement Affairs (INL) is also active in the rule of law operations and 

may or may not be present on a Country Team; the INL Office at Embassies abroad is often 

known as the Narcotics Affairs Section (NAS). USAID may have several personnel in the 

country managing a multitude of programs, many pertaining to stability operations. If S/CRS’ 

Interagency Management Framework is utilized in a reconstruction and stabilization operation, 

forward deployed Advanced Civilian Teams (ACTs) will fall under the authority and control of 

the Chief of Mission. In the absence of a functioning Country Team, the ACT would form the 

nucleus until one can be established. 

In many theaters subject to US military intervention and heighted rule of law activities, 

such as in Afghanistan and Iraq, the embassy may have a dedicated Rule of Law Coordinator. 

The role of such coordinators in Afghanistan and Iraq is treated in chapter IX. 

The Judge Advocate who is responsible for aligning the command’s rule of law 

operations with those administered by other USG departments and agencies under Chief of 

Mission authority must therefore coordinate with be aware of the Country’ Team’s activities and 

priorities. In order to devlope a cohesive plan or make progress in the identified problem areas, 

this can occur either through developing contacts with members of the Country Team or their 

offices or through his chain of command. In any event, the DATT is a likely entry point for 

approaching and dealing with the Country Team. 

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Rule of Law Handbook 

E. United States Institute of Peace (USIP) 

The United States Institute of Peace (USIP) is an independent, nonpartisan, national 

institution established and funded by Congress. Its goals are to help prevent and resolve violent 

international conflicts, promote post-conflict stability and democratic transformations, and 

increase peace building capacity, tools, and intellectual capital worldwide. The Institute does this 

by empowering others with knowledge, skills, and resources, as well as by its direct involvement 

in peace building efforts around the globe 

To achieve the above goals, USIP “thinks, acts, teaches, and trains,” providing a unique 

combination of nonpartisan research, innovative programs, and hands-on support. USIP provides 

on-the-ground operational support in zones of conflict, including Afghanistan, Bosnia, Kosovo, 

Indonesia, Iraq, Liberia, Philippines, Rwanda, Sudan, and the Palestinian Territories. Among 

many roles and missions, USIP staff and grantees are heavily involved in promoting the rule of 

law. The USIP premise is that adherence to the rule of law entails far more than the mechanical 

application of static legal technicalities, but instead requires an evolutionary search for those 

institutions and processes that will best bring about stability through justice. 

According to USIP, the most important objective in the immediate post-conflict period is 

to establish the rule of law. The focus of the initial phase is on security and stopping criminal 

behavior. Post conflict states must provide their populations with security, stability, personal 

safety, and the transparent law enforcement and judicial processes that provide the same 

protections and penalties for all citizens.80 

The USIP places particular emphasis on constitution-making in its rule of law projects. 

The USIP often considers a new constitution to be a key element of democratization and state 

building in many countries making the transition from conflict, oppression or other major 

political crises. Drafting a constitution assists in outlining the vision of a new society, defining 

the fundamental principles by which the country will be reorganized, and redistributing political 

power. Additionally, the USIP sees the constitution-making process as providing an opportunity 

for competing perspectives and claims in a post-conflict or transitional society to be aired and 

reflected in the state’s foundational document. Moreover, creating a constitution can be a vehicle 

for national dialogue and the consolidation of peace.81 

USIP Activities in Iraq and Afghanistan 

The USIP has focused on four major areas to help build rule of law in Iraq. First, USIP 

provided substantial assistance during the constitution-making process.82 This assistance 

included convening meetings of senior legal advisors which allowed Iraqi government officials 

the chance to talk with representatives from South Africa, Afghanistan, Albania, East Timor, 

Cambodia and Rwanda on the their constitution-making experiences.83 Second, USIP helped 

80 See UNITED STATES INSTITUTE OF PEACE, SPECIAL REPORT NO. 104, ESTABLISHING THE RULE OF LAW 

IN IRAQ 2-3 (Apr. 2003). 

81 See UNITED STATES INSTITUTE OF PEACE, SPECIAL REPORT NO. 107, DEMOCRATIC CONSTITUTION 

MAKING (July 2003). 

82 Fact Sheet, Rule of Law Country Specific Projects: Iraq, available at 

http://www.usip/org.ruleoflaw/projects/countries/iraq.html (last visited Aug. 13, 2008). 

83 Id. 

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create the Iraqi Committee on Judicial Independence. The Institute’s third primary concern 

relates to researching a solution with key Iraqi and international policymakers to address the 

potential property claims of 4 million displaced Iraqis.84 Finally, USIP emphasized the 

importance of transitional justice by providing advice on the establishment of the Iraqi Special 

Tribunal and disseminating a film entitled Confronting the Truth: Truth Commissions and 

Societies in Transition to stress the importance of dealing with the former regime’s human rights 

abuses.85 

The USIP has also been heavily involved in rule of law reform in Afghanistan. USIP 

projects in Afghanistan include the following: developing a framework for establishing rule of 

law in Afghanistan (2001); locating, reproducing, and distributing copies of the Afghan legal 

code (2002); conducting a workshop with Afghan justice officials on the future of the Afghan 

justice system (2003); and publishing a Special Report, Establishing the Rule of Law in 

Afghanistan (2004).86 USIP currently has an office in Kabul, Afghanistan.87 Ongoing projects 

include the following: examining ways to further collaboration between the state and non-state 

(informal) justice systems to improve the delivery of justice, resolve disputes, and protect rights; 

enhancing capabilities for transitional justice in Afghanistan; consulting on criminal law reform 

and combating serious crimes in Afghanistan; holding workshops to assist with Afghan Supreme 

Court reform; and hosting an Afghanistan Working Group for the purposes of education on 

different topics.88 

Extremely useful for Judge Advocates in Iraq and Afghanistan may be the International 

Network to Promote the Rule of Law (INPROL), set up by USIP. It is a consortium of 

practitioners joined together to promote the rule of law in societies transitioning from war to 

peace. As an internet-based network, INPROL allows those serving in the field to exchange 

information with other experienced practitioners, as well as provides access to relevant 

documents, best practices, and related materials. It also has a digital library with numerous 

resources. There are over 800 hundred active members, in more than 70 countries, representing 

over 300 organizations. Participation in the network is membership based; in INPROL emer 

must nominate applicants for membership. Applicants may apply online (and search for current 

members to nominate them) at www.inprol.org/user/register. 

F. International Actors 

The nature of the level of international involvement largely depends on the purpose and 

scope of the mission. Even a unilateral, nation-led intervention by the US will involve some level 

of participation from coalition countries, the United Nations, and non-governmental 

organizations. Thus, rule of law operations will require some level of integration of national and 

international efforts. 

84 Id. 

85 Id.
 86 Fact Sheet, Rule of Law Country Specific Projects: Afghanistan, available at
 

http://www.usip.org/ruleoflaw/projects/countries/afghanistan.html (last visited Aug. 13, 2008). 

87 Id. 

88 Id. 

57 Chapter III - Key Players 
Rule of Law Handbook 

Most major post-conflict operations will involve several international actors to implement 

effectively rule of law programs. Theses international entities will undoubtedly involve major 

powers, such as the United States, United Kingdom, France, Germany, China, and Russia. Other 

factors to consider are the effects of activities of regional or neighboring powers, for example 

Pakistan’s influence in Afghanistan, or Iran’s involvement in Iraq. Moreover, large international 

endeavors will require the commitment of major financial donors, such as international financial 

institutions. Lastly, the host-country itself will have ownership over post-conflict development 

and reconstruction, including rule of law. Each of these actors will have different goals and 

different priorities. Judge Advocates must be able to work with these layers of bureaucratic 

machinery in order to garner greater legitimacy, widen the burden sharing, and earn local 

acceptance. It is important to remember, however, that most USG relationships with international 

actors are a matter of US foreign policy and are consequently managed by DOS; coordination 

with that agency is critical whenever attempting to work with international organizations. 

There are some restrictions as to the level of involvement by international actors. 

International participation in the planning and implementation of rule of law programs will likely 

involve an invitation from the legitimate host-country political leader, or, in the alternative, a 

United Nations Security Council mandate that provides international actors with the requisite 

legal authority to intervene in the domestic affairs of a host-country. As to the latter situation, a 

international mandate will define the scope of intervention: from providing for the lead on 

judicial reform, to implementing transitional legal reform, to assisting in training and mentoring 

governmental officials on the rule of law, to providing resources and monitoring the situation. 

1. United Nations 

Multidimensional UN operations assist efforts to preserve and consolidate peace in the 

post-conflict period by helping to rebuild the basic foundations of a secure, functioning state. 

Among international organizations, the United Nations has the most widely accepted legitimacy 

and the greatest formal authority. Its actions, by definition, enjoy international approval. The UN 

can call upon its member governments (even those opposed to the intervention in question) to 

fund international operations. 

The United Nations has a simple political decision-making apparatus. The UN Security 

Council normally makes decisions to intervene in a state without its consent. The Security 

Council takes all decisions by qualified majority; although five of its members (United States, 

United Kingdom, France, China, and Russia) have the capacity to block substantive decisions 

unilaterally. Once the Security Council determines the purpose of a mission and decides to 

launch it, it leaves further operational decisions largely to the Secretary-General and his staff, at 

least until the next Security Council review, which is generally six months thereafter. 

UN peace operations and post-conflict operations can undertake a broad range of tasks, as 

mandated by the UN Security Council, to support the implementation of an agreed process. 

These include: 

•	 Helping the parties maintain stability and order 

•	 Helping the state re-establish its authority and secure its monopoly over the 

legitimate use of force 

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•	 Supporting the emergence of legitimate political institutions and participatory 

processes to manage conflict without recourse to violence 

•	 Building and sustaining a national, regional and international political consensus in 

support of the peace process 

•	 Supporting the early re-establishment of effective police, judicial and corrections 

structures to uphold the rule of law 

•	 Providing interim public security functions (e.g. policing, courts, corrections) until 

indigenous capacities are sufficient 

Coordination with the UN begins at the national level with DOS, through the US 

permanent representative (PERMREP) to the UN, who has the rank and status of ambassador 

extraordinary and plenipotentiary. A military assistant assists the US PERMREP at the US 

Mission to the UN by coordinating appropriate military interests primarily with the UN Office 

for the Coordination of Humanitarian Affairs (UNOCHA) and UN Department of Peacekeeping 

Operations (UNDPKO). 

The UN normally authorizes enforcement (without the consent of the host nation) or 

peace-keeping (with the consent of the host nation) operations through the adoption of a 

resolution by the Security Council setting the terms of its mandate. Mandates are developed 

through a political process that generally requires compromise, and sometimes results in 

ambiguity. As with all military operations, US forces implement UN mandates that contain a US 

military component through orders issued by the Secretary of Defense through the CJCS. During 

such implementation, the political mandates undergo conversion workable military orders. 

At the headquarters level, the U.N. Secretariat plans and directs U.N. peace-keeping 

missions. Normally, the UNDPKO serves as the headquarters component during contingencies 

involving substantial troop deployments. UNOCHA directs some peace-building missions with 

small numbers of military observers. UNOCHA is a coordinating body that pulls together the 

efforts of numerous humanitarian/relief organizations and is the vehicle through which official 

requests for military assistance normally occur. 

Field level coordination normally is assigned on an ad hoc basis, depending on which 

relief organization is playing the major role. The United Nations Office of the High 

Commissioner for Refugees, the World Food Program, and UNDPKO are often the logical 

candidates. UNOCHA may deploy a field team to coordinate foreign humanitarian assistance or 

the Emergency Relief Coordinator may designate the resident UN coordinator as Humanitarian 

Coordinator. If a declining security situation requires removal of UN personnel, it may degrade 

coordination with the UN Resident Coordinator. 

One of the first tasks for a Judge Advocate conducting rule of law operations should be to 

become familiar with the various components of the UN mission in country in order to 

understand the types of activities already underway or likely to be undertaken. Further 

cooperation with international institutions engaged in rule of law operations in order to identify 

potential partners or to develop a common strategy should be coordinated with the Country Team 

or DOS. 

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2. International Monetary Fund (IMF) 

The United Nations does not have all the capabilities needed for effective state-building 

and rule of law implementation. The United Nations has the ability to perform military, 

humanitarian, and political tasks, but it generally shares responsibility for reconstruction and 

economic development with institutions such as the World Bank (described below) and the 

International Monetary Fund (IMF), which are outside the UN family of agencies. The World 

Bank and the IMF have substantial capabilities in the area of reconstruction and the provision of 

financial assistance. 

The IMF is an international organization of 185 member countries. It was established to 

promote international monetary cooperation, market exchange stability and orderly exchange 

arrangements. It also has a mandate to foster economic growth and high levels of employment; 

and to provide temporary financial assistance to countries to help ease balance of payments. 

The IMF has been encouraging the rule of law for many years. In 1966, the Board of 

Governors urged the IMF to promote good governance by helping countries ensure the rule of 

law, improve the efficiency and accountability of their public sectors, and tackle corruption. The 

role of the IMF, however, is mainly limited to economic aspects of good governance that could 

have a significant macroeconomic impact, especially those related to international trade. It 

provides policy advice to member countries by means of a system of surveillance reports 

prepared by IMF personnel that cover economic activity and welfare of the subject country. 

These reports also pay explicit attention to governance and corruption. 

IMF rule of law activity includes a number of other initiatives. The IMF encourages 

member countries to adopt internationally recognized standards and codes that cover the 

government, the financial sector, and the corporate sector. The IMF has also developed its own 

transparency codes, in particular the Code of Good Practices in Fiscal Transparency and the 

Code of Good Practice on Transparency in Monetary and Financial Policies. Additionally, the 

IMF has introduced minimum standards for control, accounting, reporting and auditing systems 

of central banks of countries to which it lends money. Finally, the IMF emphasizes adequate 

systems for tracking public expenditures and participating in international efforts to combat 

money laundering and terrorist financing. 

In assessing rule of law in particular countries, the IMF uses a number of specific 

measures. First, is the efficiency of the judicial system, judged by assessing the efficiency and 

integrity of the legal environment as it affects business. Next it assesses the law and order 

tradition. Then it assesses corruption in government, with particular reference to demands for 

bribes connected to import and export licenses, exchange controls, tax assessments and loans. 

The IMF also examines the risk of expropriation and the likelihood of repudiation of contracts by 

government. Finally an index of accounting standards is created by examining and rating local 

companies’ annual reports.89 

89 SWATI GHOSH AND ATISH R. GHOSH, INTERNATIONAL MONETARY FUND, POLICY DEVELOPMENT AND 

REVIEW DEPARTMENT, IMF WORKING PAPER NO. 02/9, STRUCTURAL VULNERABILITIES AND CURRENCY 

CRISES 501-2 (Jan. 2002). 

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3. World Bank 

The World Bank is a vital source of financial and technical assistance to developing 

countries around the world. The World Bank is not a bank in the common sense. Rather, it 

consists of two unique development institutions: the International Bank for Reconstruction and 

Development (IBRD) and the International Development Association (IDA). Each institution 

plays a different, but supportive role, in its mission of global poverty reduction and the 

improvement of living standards. 

The IBRD focuses on middle income and creditworthy poor countries, while IDA focuses 

on the poorest countries in the world. Together each agency provides low-interest loans, interestfree credit, and grants to developing countries for education, health, infrastructure, 

communications, and many other purposes. 

It is not surprising that the World Bank’s focus in rule of law projects is on property 

rights. Consequently, the World Bank’s definition on the rule of law is limited. “By the rule of 

law, we mean well-defined and enforced property rights, broad access to those rights, and 

predictable rules, uniformly enforced, for resolving property rights disputes. By no rule of law, 

we mean a legal regime that does not protect minority shareholders’ rights from [vitiation], does 

not enforce contract rights, and does not protect investors’ returns from confiscation by the 

state.”90 

For the most part, the World Bank experience in the rule of law has been acquired in the 

conversion of the economies of former communist states to market based economies. 

Nevertheless, the World Bank regards property rights as very important for both transitioning 

and developing countries. The argument is that building a political consensus for the rule of law 

and an efficient economy is best done by building a political consensus that will govern the 

allocation of property rights.91 

4. The North Atlantic Treaty Organization (NATO) 

The North Atlantic Treaty Organization is a military alliance established in 1949 after the 

signing of the North Atlantic Treaty. With its headquarters in Brussels, Belgium, the 

organization’s primary purpose was to establish a stem of collective security among its members, 

whereby each member state agrees to mutual defense in response to an attack by an enemy state 

or external entity. However, since the end of the Cold War, NATO has an increasing role in 

security operations in post-conflict regions, including Bosnia, Kosovo, Afghanistan, Iraq, and 

Darfur. 

NATO is capable of deploying powerful forces in large numbers and of using them to 

force entry where necessary. But NATO has limited capacity to implement civilian operations; it 

depends on the United Nations and other institutions or nations to perform all the nonmilitary 

functions essential to the success of any nation-building operation. NATO decisions are by 

90 KARLA HOFF AND JOSEPH E. STIGLITZ, WORLD BANK, DEVELOPMENT ECONOMICS GROUP, WORLD 

BANK RESEARCH WORKING PAPER 3779, THE CREATION OF THE RULE OF LAW AND THE LEGITIMACY OF 

PROPERTY RIGHTS: THE POLITICAL AND ECONOMIC CONSEQUENCES OF A CORRUPT PRIVATIZATION 7 

(Dec. 2005).

91 Id. at 1-6. 

61 Chapter III - Key Players 
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consensus; consequently, all members have a veto. The North Atlantic Council’s oversight is 

more continuous and its decision-making more incremental than other international 

organizations. Member governments consequently have a greater voice in operational matters, 

and the NATO civilian and military staffs have correspondingly less. This level of control makes 

governments more ready to commit troops to NATO for high-risk operations than to the United 

Nations. It also often ensures the conservative employment of the resultant forces. 

National caveats limiting the types of missions to which any one member’s troops may be 

assigned are a fact in all coalition operations, but have lately proved even more pervasive in 

NATO than in UN operations. NATO troops are much better equipped than most of those 

devoted to UN operations and are correspondingly more expensive. The resultant wealth of staff 

resources ensures that NATO operations are more professionally planned and sustained, but the 

proportion of headquarters personnel to fielded capacity is quite high and correspondingly more 

costly. 

MC 411/1 NATO Military Policy on Civil – Military Co-Operation (CIMIC) describes 

NATO’s policy on post-conflict security operations. NATO defines CIMIC as: 

[t]he co-ordination and co-operation, in support of the mission, between the 

NATO Commander and civil actors, including national population and local 

authorities, as well as international, national, and non-governmental organizations 

and agencies. 

NATO policy on CIMIC recognizes the military will generally only be responsible for 

security-related tasks and support to the appropriate civil authority – within means and 

capabilities – for the implementation of civil tasks when the military commander agrees in 

accordance with the mission’s mandate and OPLAN. 

CIMIC personnel are charged to work closely with the civil organizations, national 

governments, and local authorities. Co-operation and consensus between the various 

organizations may be difficult to achieve due to the requirement for each to maintain 

relationships on three levels: tactical, operational, and strategic 

Relationships must be maintained in the field at the tactical level; with the national 

parties (host government or authorized governmental body) at the operational level; and the 

international community and supporting donors at the strategic level. In some cases, the military 

will only play a supporting role. In other situations, CIMIC participation and co-ordination may 

be the main focal point for the establishment and development of the necessary initial contacts. 

This type of situation can occur when no civil authority is in place, which is a common 

occurrence in post-conflict stability operations. 

Fundamentally, NATO commanders understand tension among political, military, 

humanitarian, economic, and other components of a civil-military relationship is detrimental to 

the overall goal. They consider transparency in effort vital in preventing and defusing such 

potentially volatile situations because transparency instills trust, increases confidence, and 

encourages mutual understanding. 

Judge Advocates should understand NATO staffs consist of individuals assigned to 

operational manning billets and often come from several different nations. Each person comes 

with varying traditions of law, as well as different expectations regarding the involvement of 

military legal advisors in operations. 

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NATO staffs also do not have access to funding in the same manner as US commands, 

but often must coordinate smaller levels of funding from the contributing nations or, in rare 

occasions, from a “trust fund” of common funding, again provided by donor nations. 

Finally, the NATO force will itself consist of individual units, from different nations, 

with varying expectations or understandings regarding their mandate, as well as the role and use 

of Legal Advisors. 

As a result, Legal Advisors in a NATO-led operation will often not be a part of a NATO 

CIMIC unit, but will instead have assignments only to the higher headquarters such as ISAF or 

KFOR. Accordingly, there are fewer opportunities for NATO legal advisors to interact with and 

affect the conduct of CIMIC efforts, including support to rule of law efforts, without making 

significant outreach efforts to the CIMIC commander. Legal Advisor involvement with such 

efforts will instead normally occur only at the operational level of command, and will therefore 

be limited to much more traditional lawyer roles. 

G. Non-Governmental Organizations (NGOs) 

NGOs are playing an increasingly important role in the international arena.92 Working 

alone, alongside the US military, with other US agencies, or with coalition partners, NGOs are 

assisting in all the world’s trouble spots where there is a need for humanitarian or other 

assistance. NGOs may range in size and experience from those with multimillion dollar budgets 

and decades of global experience in developmental and humanitarian relief to newly created 

small organizations dedicated to a particular emergency or disaster. 

NGOs are involved in such diverse activities as education, relief activities, refugee 

assistance, public policy, and development programs. An increasing number are involved in rule 

of law endeavors. 

While the military’s initial objective is stabilization and security for its own forces, 

NGOs typically seek to address humanitarian needs. The extent to which specific NGOs are 

willing to cooperate with the military can thus vary considerably. NGOs often desire to preserve 

the impartial non-governmental character of their operations, at times accepting only minimal or 

no assistance from the military. While some organizations will seek the protection afforded by 

armed forces or the use of military transport to move relief supplies to, or sometimes within, the 

operational area, others may avoid a close affiliation with military forces, preferring 

autonomous, impartial operations. This is particularly the case if US military forces are a 

belligerent to a conflict in the operational area. 

Most NGOs have very little, if any, equipment for personal security, preferring instead to 

rely upon the good will of the local populace for their safety. Any activity that strips an NGO’s 

appearance of impartiality, such as close collaboration with one particular military force, may 

well eliminate that organization’s primary source of security. NGOs may also avoid cooperation 

with the military forces out of suspicion that the military intends to take control of, influence, or 

even prevent their operations. Commanders and their staffs should be sensitive to these concerns 

92 See Grey Frandsen, A Guide to NGOs (Center for Disaster and Humanitarian Assistance Medicine 

2003), available at http://www.cdham.org/ (last visited Aug. 27, 2009). 

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and consult these organizations, along with the competent national or international authorities, to 

identify local conditions that may impact effective military-NGO cooperation.93 

Further, NGOs frequently act to ensure military actions in relief and civic actions are 

consistent with the standards and priorities agreed on within the civilian relief community. The 

extensive involvement, local contacts, and experience gained in various nations make private 

NGOs valuable sources of information about local and regional affairs and civilian attitudes. 

They are sometimes willing to share such information on a collegial basis. Virtually all NGO 

operations interact with military operations in some way – they use the same lines of 

communications; they draw on the same sources for local interpreters and translators; and they 

compete for buildings and storage space. Thus, sharing of operational information in both 

directions is an essential element of successful rule of law operations. 

Judge Advocates’ rule of law planning should include the identification of POCs with 

NGOs that will operate in the area. Frequently, other organizations in the area will already have 

identified those POCs and have working relationships with them. Specifically, Judge Advocates 

should look to local PRTs and CA units for help in contacting and working with NGOs. The 

creation of a framework for structured civil-military interaction, which is one of the primary 

functions of Civil Affairs,94 allows the military and NGOs to meet and work together in 

advancing common goals in rule of law missions. Accordingly, a climate of cooperation between 

NGOs and military forces should be the goal. It is important to remember, though, that 

commanders are substantially restricted in what types of support they can provide non-federal 

entities such as NGOs. Judge Advocates should ensure any support to NGOs complies with 

statutory and regulatory restrictions.95 

Doctrinally, relationships between the military and civilian organizations, such as NGOs 

and intergovernmental organizations (IGOs), are focused in three formal organizations. These 

organizations and their functions are as follows: 

•	 Humanitarian Operations Center (HOC) – A senior level international and 

interagency coordination body that seeks to achieve unity of effort among all 

participants in a large foreign humanitarian assistance operation. Normally, HOCs are 

established during an operation under the direction of the government of the affected 

country or the UN, or possibly under the Office of US Foreign Disaster Assistance 

(OFDA). Because the HOC operates at the national level, it typically consists of senior 

representatives from the affected country, the US embassy or consulate, joint forces, 

OFDA, NGOs, IGOs, and other major organizations involved in the humanitarian 

assistance operation. 

93 See the following guidelines, which have been endorsed by the US military and many US NGOs, 

USIP/InterAction, Guidelines for Relations Between U.S. Armed Forces and Non-Governmental 

Humanitarian Organizations, at http://www.usip.org/pubs/guidelines.html (last visited Sept. 1, 2008). 

94 FM 3-05.40, supra note 74, at 1-16 (“The primary function of all Army CA units is to support the 

warfighter by engaging the civil component of the battlefield. CA forces interface with IPI, IGOs, NGOs, 

other civilian and government organizations, and military forces to assist the supported commander to 

accomplish the mission.”). 

95 See e.g. U.S. DEP’T OF DEFENSE, DIR. 5500.7-R, JOINT ETHICS REGULATION. 

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•	 Humanitarian Assistance Coordination Center (HACC) – created by the 

combatant command’s crisis action organization to assist the interagency, IGOs, and 

NGOs to coordinate and plan foreign humanitarian assistance. Normally, the HACC is 

a temporary body that operates during the early planning and coordination stages of 

the operation. Once a CMOC (see below) or HOC is in place, the role of the HACC 

diminishes, and its functions are accomplished through the normal organization of the 

combatant command’s staff and crisis action organization. 

•	 Civil-Military Operations Center (CMOC) – Normally, the CMOC is a mechanism 

for the coordination of civil-military operations that can serve as the primary 

coordination interface providing operational and tactical level coordination between 

the Joint Force Commander and other stakeholders. Members of a CMOC typically 

include representatives of US military forces, other government agencies, IGOs, the 

private sector, and NGOs.96 

H. Coalition Partners 

Given the dominance of coalition operations, it is essential for Judge Advocates to know 

understand the philosophy, goals, and structure of coalition forces.97 Judge Advocates need to 

know national approaches for military operations and the national responsibilities for rule of law 

related activities, especially state building activities, vary for different coalition partners. 

While national interests primarily motivate US military operations, some coalition 

partners, follow the concept of a “civil power”.98 Civil powers focus on the prevention and the 

ending of violence, the establishment of the rule of law in international relations, and support of 

underdeveloped countries, even independent from national interests.99 

When speaking about rule of law programs some coalition partners focus on civilian 

reconstruction and economic support.100 Military means are seen only as appropriate to end 

violence and establish conditions under which the causes of conflict can be addressed by civilian 

means.101 Some coalition forces may be reluctant to initiate laws, courts, and police reforms, but 

96 JOINT PUB. 3-57, supra note 73, at II-26. 

97 See CENTER FOR LAW AND MILITARY OPERATIONS, FORGED IN THE FIRE 312 (2006) [hereinafter 

FORGED IN THE FIRE].

98 See, e.g., MARKUS WÖLFLE, DIE AUSLANDSEINSÄTZE DER BUNDESWEHR 116 (2005) (discussing 

Germany). 

99 Id. at 18-19.
 100 See, e.g., Joschka Fisher, German Minister for Foreign Affairs, Speech at the Afghanistan Support
 

Group (2001) (stating that the main task for the international community is economical reconstruction 

while the responsibility for the establishment of the rule of law lies in the hands of the Afghan people). 

101 See German Action Plan, Civilian Crisis Prevention, Conflict Resolution and Post-Conflict 

Peacebuilding 10 (2004), available at http://www.nowar.no/documents/germanactionplan.pdf [hereinafter 

Action Plan].
 

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rather support host government reform efforts beneficial to the establishment of the rule of 

law.102 

Consequently, France, for example, sees its contribution to the achievement of the rule of 

law through the provision of three kinds of assistance: (1) training (of police officers and 

judges)’ (2) support in the field of legislation reform and updating (e.g. support in establishing 

codes); and (3) making available documentation of a legal or technical nature.103 An additional 

example is the German approach to rule of law operations in post-conflict areas. It similarly 

focuses on technical and logistics support, as well as support concerning judicial administration, 

administrative development, and medical services.104 

Because of different approaches, the structure of coalition forces tasked with rule of law 

issues is also different. The focus on civilian reconstruction work done coupled with the 

development of the rule of law is linked for most coalition partners through an inter-ministerial 

approach. For some coalition partners, this inter-ministerial approach has resulted in the 

establishment of mixed military and civilian teams, such as provincial reconstruction teams 

(described in Chapter IX below). 

In sum, coalition partners’ approach towards a military operation might differ 

significantly. Judge Advocates should be aware the coalition partners’ understanding of their 

mandate to support and undertake rule of law activities might be very different from the US 

understanding. 

1. Coalition Restrictions 

Coalition partners will be bound to comply with obligations that arise from national laws 

or regulations as well as from the treaties to which they are party. As national laws and 

regulations are naturally different and not all coalition partners are parties to the same treaties, 

this may create a marked disparity among the partners as to what they can or cannot do. Judge 

Advocates therefore need to have an appreciation for laws and legal traditions of coalition 

partners and the extent of the applicability of treaties to which coalition partners are party.105 

As this Handbook cannot itemize all relevant national regulations and treaties, below is 

an attempt to point out some specific legal restrictions as examples of the types of legal 

restrictions on coalition partners. 

a) Legal Restrictions by Domestic Law 

It might not be necessary for members of a coalition to have detailed knowledge of the 

other partner’s applicable domestic law and policy, but even a limited comprehension can aid 

understanding. Legal restrictions on coalition partners can stem from a constitution, ordinary law 

or administrative regulations, like Rules of Engagement (RoE). 

102 Id. at 58. See also French Ministry of Foreign Affairs, Direction Générale de la Coopération 

Internationale et du Développement (French International Cooperation) 31 (2005). 

103 Id. at 32-33. 

104 See Action Plan, supra note 101, at 19. 

105 See FORGED IN THE FIRE, supra note 97, at 69. 

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Constitutional restrictions are often connected with the legality of an operation under 

international law and with the extraterritorial application of constitutional rights. For example, if 

an operation occurs without Security Council authorization, there well may be constitutional 

problems for some potential allies, effectively prohibiting them from joining or assisting the 

operation.106 Different constitutional problems might arise from the extraterritorial application of 

constitutions. Domestic laws and international treaties are often not applicable extraterritorially, 

or are overridden, for example, by resolutions of the United Nations Security Council. But some 

coalition partners will be bound to comply with their constitutions in all circumstances, 

especially with requirements to protect human rights and fundamental freedoms.107 

In addition to constitutions, ordinary statutes often restrict whether a country can 

participate in an operation. For some, military operations not only need approval from national 

parliaments, but also require statutory authorization. For example, approval from the German 

Parliament for the German participation in the International Security Assistance Force (ISAF) 

military operation in Afghanistan came in the form of statutes. These statutes determine the 

framework (including goals and limits) of the German participation. The statutes have 

determined, for example, the area and duration of the operation and operational limitations (e.g., 

limitations on self-defense). 

Restrictions by statutes may also have a significant impact on the conduct of the 

operation if the statutes themselves have an extraterritorial effect. Statutes describing the 

obligations and rights of soldiers usually have this effect.108 Under these statutes soldiers are 

entitled to refuse unlawful orders.109 The test of lawfulness includes generally the application of 

international law.110 

106 For Germany, for example, the participation in an operation missing international legitimacy is 

unconstitutional. See Basic Law (German Constitution), Article 24, paragraph 2 (allowing military 

operations abroad only in the frame of “a system of mutual collective security” (for example the United 

Nations)).

107 See, e.g., German Constitution, Article 19, paragraph 3. The Federal Constitutional Court clarified that 

the commitment of the executive power to be bound by German law applies extraterritorially. This means 

the executive power has to take into account German domestic law, especially the constitution. In 

addition, anybody residing in Germany who is affected by an action of an executive power can complain 

about the violation of constitutional rights at the Federal Constitutional Court. See German Federal 

Constitutional Court, BVerfGE 100, 313 of July 14, 1999, paragraphs 152 and 156. 

108 See, e.g., German “Soldatengesetz” or the British Army Act. 

109 See, e.g., French Statut Général des Militaires, Article 15;German Soldatengesetz, Article 11 (1); 

United Kingdom, Manual of Service Law JSP 830 p. 1-7-39.

110 See, e.g., French “Manuel de Droit des Conflicts Armés,” (Handbook of the Law of War), ch. 

“Responsabilité” [hereinafter Manuel de Droit des Conflicts Armés]; United Kingdom, Manual of 

Military Law, Army Act 1955, Section 34, footnote 3a. 

In the court martial case of Malcolm Kendall-Smith, the Flight Lieutenant Kendall-Smith was to face 

criminal charges for challenging the legality of the war against Iraq and for disobeying a lawful command 

and refusing deployment to Iraq in June 2005. During the procedure the court examined the lawfulness of 

the British operation in Iraq as matter of international law. 

The German Federal Administrative Court (Bundesveraltungsgericht), BVerwG 2 WD 12.04 of June 21, 

2005, also examined the legality of the military operation in Iraq as a matter of international law 

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Furthermore, domestic penal laws may have an impact on coalition operations. The 

French penal law, for example, applies to crimes conducted by French citizens outside France.111 

Germany has had a Code of Crimes against International Law since 2002. It enables the German 

Federal Prosecutor to investigate and prosecute crimes constituting a violation of the Code, 

irrespective of the location of the defendant or plaintiff, the place where the crime occurred, or 

the nationality of the persons involved. 

Further restrictions by domestic law can result from administrative regulations, like the 

Rules of Engagement for an operation. Administrative regulations handbooks for coalition 

military lawyers are of high interest as they mirror the opinion of the concerned national 

Ministry of Defense and the Government. 112 

b) Legal Restrictions by Treaties 

Not all coalition partners are party to the same treaties. This fact often creates a marked 

disparity between partners as to what they can or cannot do. Even for coalition partners who are 

party to a treaty, the question of whether a treaty applies or is overridden by any other 

international rule is an open question for coalition international lawyers. 

From the perspective of many coalition partners, the most important rule possibly to 

supersede international treaties is Article 103 of the UN Charter.113 Considering that decisions of 

the United Nations Security Council (within the meaning of Article 25 and under chapter VII of 

the Charter) will typically provide the legal mandate for coalition operations, it is critical to 

understand whether Article 103 of the Charter applies to these decisions. Security Council 

resolutions generally result in one of three forms: (1) as a binding or instructive decision creating 

an obligation on all UN members; (2) as an authorization allowing UN members states to act in a 

particular case; or (3) as non-binding recommendations. 

Some legal writers advance the view that Article 103 of the Charter applies only to 

instructive decisions of the United Nations Security Council but not to ordinary authorizations or 

even recommendations,114 a view with which the European Court of Justice has registered 

agreement.115 Other commentators116 and the England and Wales High Court and Court of 

Appeal endorsed the latter view by advancing the view that authorizing resolutions can override 

concerning the legality of the refusal of a German army officer to obey an order fearing that he would in 

effect support the US invasion in Iraq.

111 Id., ch. “Responsabilité pénale”. 

112 See, e.g., the German Handbuch für den Rechtsberaterstabsoffizier im Auslandseinsatz. 113 UN Charter, art. 103. (“In the event of a conflict between the obligations of the Members of the United 

Nations under the present Charter and their obligations under any other international agreement, their 

obligations under the present Charter shall prevail.”). 

114 See B. SIMMA, ED, THE CHARTER OF THE UNITED NATIONS – A COMMENTARY 1296, vol. II, (2d ed. 

2002); see also Lauwaars, The Interrelationship between United Nations Law and the Law of Other 

International Organizations, 82 MICH. L. REV. 1604 (1984). 

115 See Robert Kolb, Does Article 103 of the Charter of the United Nations apply only to Decisions or 

also to Authorizations adopted by the Security Council?, 64 HEIDELBERG J. 21, 29 (2004). 

116 See SIMMA, supra note 114, at 729. 

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international treaty obligations pursuant to Article 103 of the UN Charter.117 Advocates of this 

approach contend that only this interpretation ensures effectiveness to the measures of the 

Security Council.118 This view also corresponds with the practice of many, since states did not 

oppose such UN authorizations on the ground of conflicting treaty obligations.119 

Despite this, international treaties to which coalition partners are party still have some 

meaning for coalition operations based on Security Council resolutions, because not all treaties 

are overridden by Security Council resolutions. Furthermore, where a Security Council 

resolution overrides a part of an international treaty, the remaining provisions of the treaty retain 

their validity.120 

c) European Convention on Human Rights (ECHR) 

One of the most important international treaties for European coalition partners is the 

European Convention on Human Rights (ECHR) of 1950. Because E.U. citizenship is not a 

requirement for application to the European Court of Human Rights, whether the Convention 

applies extraterritorially is a critical question. 

Article 1 of the ECHR states that “The High Contracting Parties shall secure to everyone 

within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.” As 

with other international and regional treaties on human rights, the ECHR has a territorial scope. 

This means, generally, parties to the ECHR are obliged to guarantee the rights recognized in the 

ECHR to all the individuals within their territory. However, the European Court on Human 

Rights in Strasbourg has accepted some exceptions from this general rule of exclusively 

territorial application. 

From 1975 through 2001, the Court and the European Commission on Human Rights 

recognized an obligation of the member parties to the ECHR to guarantee the rights recognized 

in the ECHR not only to individuals within their territory but also to individuals under their 

actual authority and responsibility.121 This is the “doctrine of personal jurisdiction.” Following 

this approach, the Court considered the ECHR applicable in the case of an arrest abroad, even 

when the arrest took place in a state not being a member state of the Convention.122 

117 Al-Jedda v. Secretary of Defence, England and Wales High Court and Court of Appeal, EWCA 1809 

(2005), R (on the application of Al Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) 

[2007] UKHL 58. 

118 See Kolb, supra note 115, at 25. 

119 See SIMMA, supra note 114, at 759. But see Kolb, supra note 115, at 27. 

120 See England and Wales Court of Appeals (2006) EWCA which expressively states that UNSCR 1546 

(2004) overrides only Article 5 (1) of the European Convention on Human Rights while the remaining 

regulations of the Convention retain their validity.

121 See Cyprus v. Turkey, European Commission on Human Rights, application numbers 6780/74 and 

6950/75 of May 26, 1975, at 133 (“It is clear from the language ... and object of this Article [1], and from 

the purpose of the Convention as a whole, that the High Contracting Parties are bound to secure the said 

rights and freedoms to all persons under their actual authority and responsibility, whether that authority 

was exercised within their own territory or abroad.”). 

122 See Stocké v. Germany, European Commission on Human Rights, application number 11755/85 of 

October 12, 1989 (concerning the transfer of a German citizen from France to Germany without his 

cognition and agreement). 

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The ECHR at least arguably applies extraterritorially,123 and so it necessarily must be 

taken into consideration when cooperating with any nation that is a signatory to the ECHR. 

Moreover, the relationship between the ECHR and UN resolutions (whether UN resolutions 

authorizing operations effectively preempt application of the ECHR) is itself a matter of 

debate.124 Consequently, any JA working with forces from countries that are signatories to the 

ECHR will have to work with their legal staffs and be sensitive to the possibility that the ECHR 

will dictate some aspects of coalition members’ operations. 

d) Canadian Charter of Rights and Freedoms 

In 2008 the Canadian Federal Court was asked to consider the application 

of the Canadian Charter of Rights & Freedoms, which since 1982 is part of the Constitution of 

Canada, to the handling and transfer of detainees held by Canadian Forces (CF) personnel in 

Afghanistan. The case was brought based upon public interest standing, by two Canadian human 

rights groups. Also sought was an injunction to prevent the transfer of detainees to Afghan 

authorities. The injunction was initially denied after the CF revealed it had suspended transfers 

as of Nov 07, due to credible allegations of mistreatment by Afghan authorities. Transfers were 

then reinstated after several changes were made to deal with those concerns. Canada’s Federal 

Court ruled the Charter does not apply to the handling and transfer of detainees held by CF 

personnel in Afghanistan because Afghan and international law protect detainees instead.125 This 

decision is under appeal to Canada’s Federal Court of Appeal, after which it can still go to 

Canada’s Supreme Court. 

123 Compare Loizidou v. Turkey, European Court on Human Rights, application number 15318/89 of 

November 28, 1996 (broad extra-territorial application of the ECHR) with Bankovic v. Belgium, 

European Court on Human Rights (admissibility decision), application number 52207/99 of December 

12, 2001 (applying a stronger concept of territorial, rather than personal, jurisdiction). See also Öcalan v. 

Turkey, European Court on Human Rights, application number 46221/99 of May 12, 2005; 

124 See generally Behrami and Behrami v. France Application No. 71412/01 and Saramati v. France, 

Germany And Norway Application No. 78166/01 EUROPEAN COURT OF HUMAN RIGHTS Grand 

Chamber Decision As to Admissibility (2 May 2007); R(Al Skeini and others) v Secretary of State for 

Defence) (The Redress Trust intervening)[2007] UKHL 26; R (on the application of Al Jedda) (FC) 

(Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58. 

125 See http://decisions.fct-cf.gc.ca/en/2008/2008fc336/2008fc336.pdf (last visited Aug. 27, 2009). 

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IV. The International Legal Framework for Rule 

of Law Operations 

It would be ironic if rule of law operations were conducted without regard to the legal 

restrictions on military operations. Different sets of international legal norms will apply to each 

conflict, and the decision of which norms apply will be decided at the highest policy levels. 

Nevertheless, deployed Judge Advocates working on rule of law operations need to be mindful 

of the universe of international legal rules applicable to rule of law operations, and especially 

how those rules may vary from those applicable to more traditional military operations. 

While some of the norms and mandates of these varied disciplines apply universally, 

requiring Judge Advocates to ensure compliance in all operations, there are other disciplines with 

quite limited application. The extraterritorial setting of most modern stability operations, for 

instance, may limit the applicability of many legal frameworks, such as some human rights 

treaties to which the US is party. Still other international legal frameworks, such as the law of 

war, rely on strict classification regimes to restrict their application by operation and by persons 

protected. The first section of this chapter discusses how to determine which legal framework 

applies to a particular operation; the second is an overview of the various substantive 

requirements of those frameworks (although, by necessity, its coverage is quite limited). 

Regardless of the setting or the particular regime applicable, though, rule of law operations call 

for adherence to the requirements of international law not only as a matter of legal compliance, 

but as a matter of US policy and good practice. 

A. Identifying a Rule of Law Legal Framework 

The aim of this section is to illustrate some of the various mandates that may govern 

military deployments overseas and the impact these have on rule of law operations. From a legal 

perspective the mandate defines the nature, scope and limits of any military deployment. It 

provides the raison d’etre of the military mission and sets the boundaries of all military activity. 

The mandate may take one, or more, of many forms. Indeed, it may expand and evolve as the 

operation progresses or, by contrast, may become more limited as an operation matures. This 

section will outline many basic principles of international law, however, given space limitations, 

should be not used as an authoritative guide. 

1. United Nation (UN) Mandates 

a) UN Security Council Resolutions (UNSCR) 

The UN consists of 192 member states. The Security Council is the principal organ 

within the UN with primary responsibility for the maintenance of international peace and 

security.1

 Chapter VII of the UN Charter enumerates the Council’s compulsory powers to restore 

international peace and security. Most Security Council Resolutions require support from nine 

out of fifteen members, provided none of the five permanent representatives2

 votes against or 

1

 U.N. Charter art. 24(1).

2

 United States, Russia, United Kingdom, China and France. 

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vetoes the proposal. Pursuant to Article 25 of the Charter, UN members are required to honor 

and carry out Security Council resolutions. 

The Use of Force 

The UN Charter’s general prohibition on the use of force is relatively well accepted.3 

Intervention, whether by direct military action or indirectly by support for subversive or terrorist 

armed activities, fall squarely within this prohibition.4

 The prohibition on the use of force is, 

however, subject to several exceptions, two of which are paramount. The first, contained in 

Article 51 of the Charter, recognizes the right of individual and collective self defense for States 

in the event of an armed attack. The second, contained in Article 42, empowers the Security 

Council to authorize the use of force in order to restore international peace and security based on 

a determination of the existence of a “threat to the peace, breach of the peace, or act of 

aggression.”5

 Resolutions empowering military operations overseas can be passed under 

Chapters VI or VII of the Charter. The former providing for the pacific settlement of disputes 

with the consent of the host nation, the latter permitting action with respect to threats to the 

peace, breaches of the peace, and acts of aggression even without the consent of the host nation. 

Judge Advocates may expect to support rule of law operations governed by UN Security 

Council mandates. In addition to advancing efforts to restore peace, such resolutions may also 

include developmental mandates. Particularly in missions undertaken in under-developed states, 

Judge Advocates should expect Security Council resolutions to address economic, financial, 

health, and human rights issues, as well as goals related to self-determination. UN Security 

Council Resolution 1483, regarding the reconstruction of Iraq, is representative.6

 Frequently, 

Security Council and Secretary General have relied on Special Rapporteurs to provide detailed 

guidance on implementation of such resolutions and to report to the Council on progress in their 

execution.7 

UN Security Council resolutions, mandates, and directives may be in apparent conflict 

with pre-existing or concurrent international legal norms. UN Charter article 103 directs Member 

3

 “All members shall refrain in their international relations from the threat or use of force against the 

territorial integrity or political independence of any State, or in any manner inconsistent with the purposes 

of the United Nations.” U.N. Charter art. 2(4). 

4 See G. A. Res. 2625 (XXV), U.N. Doc. A/8082 (1970).

5

 U.N. Charter art. 39. 

6

 In response to the 2003 invasion and occupation of Iraq, the United Nations Security Council passed 

Resolution 1483. S.C. Res. 1483, U.N. Doc. S/RES/1483 (2003). In addition to a directive to comply with 

the law of occupation, Resolution 1483 instructed the coalition to work toward a number of 

developmental and humanitarian goals. Paragraph 14 directed the coalition to repair infrastructure and 

meet the “humanitarian needs of the Iraqi people.” Id. Several months later, the Secretary General issued 

a report on implementation of 1483. See Report of the Secretary-General Pursuant to Paragraph 24 of 

Security Council Resolution 1483, U.N. Doc. S/2003/715 (2003). The report frequently exhorted the 

coalition to speed reconstruction and development efforts, often through transformative means. For 

instance, the report observed “the development of Iraq and the transition from a centrally planned 

economy needs to be undertaken.” Id. at 16. 

7 See Sec Gen’s Comment on UNSCR 1483; Report of the Panel on United Nations Peace Operations 

(The Brahimi Report), A/55/305 - S/2000/809 (2000), available at 

http://www.un.org/peace/reports/peace_operations/docs/full_report.htm. 

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States confronted with competing legal duties to give priority to obligations arising under the 

Charter. Judge Advocates should identify such conflicts early and alert their technical legal 

channels at the highest levels. Resolution of competing legal duties may ultimately require 

political as well as legal determinations. 

b) Resolutions passed under Chapter VI 

Chapter VI of the Charter deals with attempts to resolve disputes by pacific means. 

Indeed, it states that parties to any dispute must first attempt to seek resolution by negotiation, 

enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or 

arrangements or other peaceful means of their own choice.8

 The Security Council has wide 

powers under Chapter VI. It may, at any stage of a situation that might lead to international 

friction or give rise to a dispute, recommend appropriate procedures or methods of adjustment. 

The key to resolutions passed under Chapter VI is that they only permit the presence of military 

forces with the consent of the host government and do not sanction the use of force other than 

that which is necessary for self-defense. 

Due to the permissive nature of Chapter VI missions, Judge Advocates should expect 

host nation legal norms to govern most operations. Relations between the sending and receiving 

state will in all likelihood be governed by a Status of Forces Agreement (SOFA). Chapter VI 

missions that include a rule of law aspect may call on supporting Judge Advocates to assist the 

host nation in implementing its international legal obligations. During planning for such 

operations, the JA contribution to the Military Decision Making Process (MDMP) should include 

a detailed legal estimate, outlining host nation international and domestic legal obligations. 

Though not envisioned as offensive operations, Judge Advocates should pay particular attention 

to detention procedures, law enforcement provisions, and property dispute resolution. 

c) Resolutions passed under Chapter VII 

Chapter VII of the UN Charter provides an important caveat to the prohibition on the use 

of force contained within Article 2(4). Along with Article 51, it constitutes the modern jus ad 

bellum. The prohibition on UN intervention in domestic affairs of a nation is specifically 

excluded in relation to actions taken under Chapter VII, which are predicated on threats to the 

peace, breaches of the peace, or acts of aggression.9

 By far the most common method for the 

Security Council to pass a resolution under Chapter VII is for the members to determine that 

there exists a threat to the peace. A Security Council resolution under Chapter VII is binding on 

all member States. 

Article 39 of the Charter enables the Security Council in the event of “any threat to the 

peace, breach of the peace, or act of aggression,” to take measures to “maintain or restore 

international peace and security.”10 Once the Council has made an Article 39 determination, it 

can then prescribe what measures are necessary for the restoration of peace and security using its 

powers under Chapter VII, specifically measures provided for in Article 41 and 42, or some 

variation thereof. 

8

 U.N. Charter art. 33(1).

9

 U.N. Charter art. 2(7).

10 U.N. Charter art. 39. 

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Article 41 allows the Council to require Member States to apply affirmative measures 

short of the use of force. These measures include, but are not limited to “complete or partial 

interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means 

of communication, and the severance of diplomatic relations.”11 Judge Advocates must 

understand that the imposition by the Security Council of economic sanctions against a state 

pursuant to Article 41 may be either recommended or mandatory in nature, which is a matter to 

be ascertained from the language of the resolution 

Article 42 empowers the Security Council to authorize the use of force. The Security 

Council may authorize Member States to “take such action by air, sea, or land forces as may be 

necessary to maintain or restore international peace and security.”12 These measures include, but 

are not limited to, “demonstrations, blockade, and other operations by air, sea, or land forces of 

Members of the United Nations.”13 When this provision was drafted, it had originally been 

envisioned that an Article 42 action would be taken by countries under a unified UN command. 

But that type of action has been rare. Instead, a practice has developed whereby the Security 

Council authorizes States to take all necessary measures, in which case, there is no unified UN 

command. Not all States must participate in a Chapter VII military operation, but they cannot 

work counter to the UN effort. 

The legal effect of the passing of a resolution under Chapter VII that authorizes the use of 

all necessary means should not be underestimated. It offers the military commander enormous 

freedom to prosecute any campaign. Resolutions passed under Chapter VII have been aimed at 

both state and non-state actors. Examples of the latter include the Resolutions passed against 

National Union for the Total Independence of Angola (UNITA) following their breach of terms 

of cease-fire in Angola14 and those against the Taliban15 following the attacks on the US 

embassies in East Africa and the first bomb attack on the World Trade Center in 1993. 

Judge Advocates may find familiar legal territory when supporting missions executed 

pursuant to Chapter VII authority. Such missions are typically coercive, thus obviating, at least 

during early phases, detailed consideration of host nation legal frameworks. The nature and 

international scope of such missions, particularly those carried out under Article 42, will likely 

trigger application of the full body of the law of war. Given the requisite international consensus 

and support for such operations, however, Judge Advocates may reasonably anticipate rapid 

completion of decisive operations and subsequent transition to stability or post-conflict missions, 

and should expect considerable escalation of legal complexity in these latter phases. Judge 

Advocates should pay particular attention to extension and modification of legal mandates 

11 U.N. Charter art. 41. 

12 U.N. Charter art. 42. 

13 Id. 14 Most recently, UN Security Council Resolution 1295 established a monitoring mechanism to supervise 

implementation of previous Security Council resolutions issued against UNITA. U.N. Doc. S/Res/1295 

(18 April 2000). Resolution 1295 invoked the Council’s powers under Chapter VII and called on states to 

consider action under article 41 of the Charter. Id. at para 6.

15 The Taliban were not generally recognized by the International Community to be the legitimate 

Government of Afghanistan and as such were “non State actors”. 

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through subsequent Security Council resolutions. Mandates subsequent to successful decisive 

operations may include broader developmental and transformative goals.16 

2. Mandates Pursuant to Bilateral and Multi-lateral Agreements 

Because of political considerations and structural obstacles, the UN system has not 

operated as many envisioned. Though nearly all states have delegated responsibility for 

maintenance of international peace and security to the UN, bilateral security agreements form an 

integral part of the international security framework. States have frequently resorted to 

operations outside the context of the UN Security Council to restore peace and security. In 

addition to bilateral agreements on security cooperation, states have preserved regional security 

arrangements to supplement both the United Nations system as well as their indigenous capacity 

for self-defense. Occasionally states have concluded ad hoc arrangements as well. 

Security arrangements are not the exclusive source of bilateral military mandates, 

however. States have also concluded developmental and other assistance agreements that may 

regulate or govern military contingency operations. Economic, educational, and other 

developmental agreements may prove highly relevant to contingency operations, particularly 

during long-term or preventive stability operations. Such agreements may include specific 

provisions on military support, military and police training, or support to civil infrastructure 

projects. 

Judge Advocates detailed to support missions carried out pursuant to bilateral agreements 

should coordinate closely with the appropriate geographic Combatant Command. Interagency 

coordination is also essential to appreciating the implementation strategy of bilateral 

development or security agreements. The DOS is the lead agency for negotiation and execution 

of international agreements, and typically manages obligations stemming from such agreements 

through regional and country bureaus. 

3. Mandates Pursuant to National Legislation 

Finally, military missions, particularly those involving the use of force, are frequently 

governed by national legislation. The Constitution entrusts Congress with significant 

responsibilities related to employment and regulation of the armed forces. Even outside instances 

of declared war, congressional resolutions and bills have regulated the scope, duration, and 

nature of military operations. Authorizations, appropriations or restrictions on expenditure of 

funds are the primary means by which Congress can regulate contingency operations. 

Judge Advocates should anticipate national legislation, both standing and ad hoc, 

regulating armed forces’ activities during rule of law operations. Fiscal law restrictions will 

undoubtedly impact mission planning and execution.17 Other reporting and operating 

requirements, such as vetting under the Leahy amendment18 for past human rights violations 

should be anticipated as well. 

16 See fn. 6. 

17 See Chapter VII.

18 Pub. L. No. 104-208, 110 Stat. 3009-133 (1996). 

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B. The Rule of Law Legal Framework 

As mentioned at the outset of this chapter, currently, no single body of law regulates the 

conduct of rule of law operations. Rather, rule of law operations appear better suited to highly 

context-specific classifications, accounting for geographic, conflict, and cultural settings. This 

section will survey potential application of three major legal disciplines with apparent relevance 

to many rule of law operations: the law of war, occupation law, and human rights law. 

1. The Law of War 

Rule of law operations occur within the broader context of stability operations.19 

Department of Defense doctrine emphasizes that stability operations occur both along and 

beyond the conflict spectrum. Doctrine notwithstanding, major combat operations are sure to 

present significant obstacles to effective rule of law operations. Mission sets, personnel, and 

resources must be tailored to accommodate the realities and demands of the battlefield. 

Similarly, rule of law operations occurring during combat must account for operation of the law 

of war. 

In some instances, the law of war may operate as an enabler, facilitating the imposition of 

law and order. At the same time, the law of war may impose seemingly onerous and elaborate 

treaty obligations straining resources and personnel. Judge Advocates must ensure that rule of 

law plans and operations executed during armed conflict leverage such enablers while respecting 

at all times relevant obligations. 

a) Treaty Law 

The majority of the modern law of war is found in treaty law. Some commentators have 

found utility in bifurcating the positive law of war into obligations concerned with treatment of 

victims of war (the Geneva tradition) and obligations to be observed in the conduct of hostilities 

(the Hague tradition). While the academic nomenclature of this bifurcation may no longer 

accurately reflect the respective treaty sources of these norms, the functional separation of rules 

remains useful. Bearing this bifurcation in mind, the treatment obligations of the Geneva 

tradition appear to have the most direct application to rule of law operations. 

The four 1949 Geneva Conventions form the backbone of the law relevant to treatment of 

victims of war. Almost all states, including the United States, are parties to the Geneva 

Conventions. Despite their impressive size, 419 articles in all, the majority of the Conventions 

regulate a narrow class of armed conflict – so-called international armed conflict. In fact, 

application of all but one article (Common Article 3) of each of the four Conventions is 

conditioned on existence of armed conflict between opposing state parties to the Conventions. 

Thus Judge Advocates must reserve de jure application of the provisions of each Convention to 

international armed conflict. All other armed conflicts, namely those between state parties and 

non-state actors, such as civil wars and insurgencies are governed by Common Article 3 of the 

Conventions. 

19 See U.S. DEP’T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, 

TRANSITION AND RECONSTRUCTION (SSTR) OPERATIONS, para. 4.2 (28 Nov. 2005). 

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Though conflict classification is usually determined at the highest levels of national 

government, Judge Advocates in rule of law operations must remain attuned to evolutions in the 

character of conflict. Recent operations have featured complex and even counter-intuitive 

conflict classifications. Armed conflicts among diverse groups within the same state territory 

have been considered single conflicts for purposes of application of the Conventions. Other 

armed conflicts involving multiple parties in a single state have been carefully parsed into 

separate conflicts for legal purposes. 

In addition to a restrictive conflict classification regime, each of the Conventions reserves 

the majority of its protective provisions to a class of “protected persons.” Only persons or groups 

satisfying these often-stringent criteria are covered by the Conventions’ treatment obligations. 

Judge Advocates must ensure rigorous classification of persons placed in the hands of friendly 

and allied forces. Rule of law operations, especially police, detention, and court functions, will 

regularly implicate provisions of the Conventions. 

b) Customary International Law 

Customary international law (CIL) is a second major source of law of war obligations. 

Given its largely uncodified form, CIL can be difficult to discern. Many treaty provisions, 

including the Hague Regulations of 1907, the Geneva Conventions of 1949, and portions of the 

1977 Additional Protocols to the 1949 Geneva Conventions are considered reflective of CIL. 

Provisions of the latter treaties have proven particularly troublesome for US Judge Advocates 

because the US is not a party to either Additional Protocol. The majority of Protocol I provisions 

reflective of CIL relate to targeting operations and are not of primary concern to rule of law 

operations. The US has not expressed explicit support for most of the Protocol I supplements to 

treatment of war victims, however, reducing the legal significance of these provisions during 

exclusively US operations. Judge Advocates should bear in mind, however, that many US allies 

and potential rule of law host nations have ratified or acceded to the Protocols or may view their 

provisions as more fully reflective of CIL. 

It is important to remember that legal norms mature with their triggering mechanisms. 

That a norm develops, through state practice and opinio juris, into CIL does not of necessity 

expand its scope of application. For example, while combatant immunity for the former lawful 

warlike acts of certain POWs is likely reflective of CIL, such immunity is restricted to 

international armed conflict. The CIL status of combatant immunity does not imply its 

application to non-international armed conflicts. 

c) Policy 

United States DOD policy directs its armed forces to “comply with the law of war during 

all armed conflicts, however such conflicts are characterized, and in all other military 

operations”.20 The policy is intended to apply the law of armed conflict for international armed 

conflict across the conflict spectrum. This provides a standard that military personnel can train to 

in all situations, applying the lex specialis of the law of war to their conduct, as a matter of 

policy, even when it may not apply as a matter of law. 

20 U.S. DEP’T OF DEFENSE, DIR. 2311.01E, DOD LAW OF WAR PROGRAM, para. 4.1 (9 May 2006). 

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2. Occupation Law 

Though largely unused in the latter half of the twentieth century, occupation law has 

experienced a recent revival in both international practice and litigation.21 Like most 

international law, occupation law exists in two forms: treaty and custom. This section will 

outline issues concerning both formal application of occupation law and its potential for 

application by analogy during rule of law operations. 

a) Treaty Law 

Most norms of occupation law are found in international treaties. The 1907 Hague IV 

Regulations and the 1949 Fourth Geneva Convention are the primary sources of positive law. 

Generally speaking, rules of governance and handling of property may be found in the former, 

while norms applicable to treatment of persons are found in the latter. Collectively, occupation 

law offers nearly complete instructions on the temporary administration of foreign sovereign 

territory and persons. These include responsibilities for food and medical supplies, hygiene and 

public health. 

Whether forces are in occupation is a question of fact that depends largely on the 

prevailing conditions on the ground. Guidance is provided by Article 42 of the Hague 

Regulations: 

Territory is considered occupied when it is actually placed under the authority of 

the hostile army [and] extends only to the territory where such authority has been 

established and can be exercised. 

Accordingly, it is entirely possible that a portion of contiguous territory would be deemed 

occupied while another would not. Indeed, a divide can exist within a single city or town 

depending on conditions and the ability of the forces to establish and exercise their authority. 

Potential occupants often go to great lengths to distinguish themselves as mere invaders, 

liberators, or invited civil administrators to prevent the operation of occupation law. 

Occupation law has been characterized as conservationist in nature. Article 43 of the 

Hague Regulations and Article 64 of the Fourth Geneva Convention direct occupants to preserve 

and adopt existing systems of government. When applicable, these provisions may present 

obstacles to rule of law projects that modify existing legal regimes and institutions. Exceptions 

are primarily related to establishing and maintaining security and observance of fundamental 

humanitarian norms. The occupation phase of Operation Iraqi Freedom presented Judge 

Advocates with just such a challenge. Reform of Iraqi criminal, commercial, and electoral 

systems required legal authorization superior to the restrictive norms of occupation law. The 

Coalition Provisional Authority (CPA) relied heavily on United Nations Security Council 

resolutions to justify legal innovations that would otherwise have run contrary to occupation 

law’s rules of preservation. Specifically, the CPA relied on articles 25 and 103 of the United 

Nations Charter to justify observance of the Security Council’s development mandate in 

21 Adam Roberts, What is a Military Occupation?, in THE BRITISH YEAR BOOK OF INTERNATIONAL LAW 

(1985); Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human 

Rights, 100 AM. J. INT’L L. 580, (2006). 

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Resolution 1483, notwithstanding apparent friction with occupation law’s direction to preserve 

the status quo. 

During occupation, Judge Advocates should ensure rule of law projects that alter existing 

governmental structures are grounded in either legitimate security concerns or fall under a 

superseding international mandate for development. 

b) Customary International Law 

Because occupation law is found in such well-established treaties, many argue that its 

norms constitute CIL. While probably true, Judge Advocates should remember that norms 

attaining customary status retain the conditions of their application. That is, when a treaty 

provision matures into custom, the primary effect is to bind non-parties – customary status does 

not mandate application beyond the scope of conditions originally attendant to the relevant norm. 

For example, while Article 49 of the Fourth Geneva Convention prohibits transfers of inhabitants 

of occupied territory, its status as a likely customary norm does not extend its application beyond 

the preconditions established in Common Article 2 and Article 4 of the Fourth Convention. Thus, 

Article 49 only operates as customary law in “cases of partial or total occupation of the territory 

of a High Contracting Party”22 and with respect to “[p]ersons . . . in the hands of [an] . . . 

Occupying Power of which they are not nationals.”23 

It is possible, notwithstanding the preceding distinction, some provisions of occupation 

law extend to territory that is not occupied in the technical or legal sense. For instance, foreign 

courts have explored the boundaries of occupation law applicable to situations short of those 

described in common article 2. The content of this variant of customary occupation law is 

unclear. The United States has not clearly expressed its views in this regard. A recent study of 

customary international humanitarian law is similarly silent on occupation law.24 

c) Policy 

In addition to guidance directing US forces to comply with the law of war in all 

operations, Judge Advocates will find support for application of occupation law beyond its legal 

limits as a matter of policy. US Army Field Manual 27-10, paragraph 352(b) encourages forces 

to apply occupation law to areas through which they are merely passing and even to the 

battlefield.25 Thus, stability and rule of law operations, which may not formally trigger 

application of occupation law, may nonetheless call for observance of norms applicable to 

occupation. Occupation rules for the treatment of property, public and private, seem particularly 

appropriate for such expansive observance. 

3. Human Rights Law 

Where international law generally governs relationships between states, human rights law 

(although a form of international law) regulates relationships between states and individuals. 

22 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2. 

23 Id., art. 4. 

24 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN
 

LAW (2005).

25 U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, LAW OF LAND WARFARE 352(b) (18 July 1956). 

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Human rights law can be applicable to Judge Advocates engaged in rule of law operations in two 

ways: through the application of customary international human rights law to their activities or 

through the application of the host nation’s human rights obligations. If engaged in combat 

operations, however, the US regards the law of war as an exclusive legal regime or a lex 

specialis. Under this view, the law of war operates to the exclusion of competing legal 

frameworks such as human rights law. That position, however, is not necessarily shared by other 

nations, particularly in situations where a government has jurisdiction and control over persons, 

such as in detention operations. Moreover, while the US considers its obligations under the 

International Covenant and Civil and Political Rights26 to be territorial in scope because of the 

treaty’s wording, European countries party to the European Convention on Human Rights may 

be bound outside of their territories to that treaty’s obligations. Because traditionally the US 

military infrequently engaged in rule of law operations, US armed forces have given 

comparatively little attention to how human rights applies to rule of law operations.27 

Irrespective of the specific legal context, rule of law operations should be guided and 

informed by human rights law purely as a matter of efficacy. US forces should model behavior 

for, and encourage actions by, the host nation government that will encourage the host nation to 

adopt and practice strong human rights norms. For example, while detention operations by US 

forces may legally be conducted in accordance with law of war requirements, the detention 

procedures adopted by US forces during the post-conflict phase may serve as a model for the 

administrative detention procedures that the host nation adopts for domestic use. As a matter of 

policy, then, they should consequently comply with international human rights norms. Judge 

Advocates should assist host nation institutions in building their capacity to comply with binding 

human rights standards that are consistent with their domestic legal regime. 

a) Treaty Law 

International law has experienced a rapid expansion in human rights treaties since the 

Second World War. Internationally, there are a number of major human rights treaties to which 

the host nation may be party.28 These include the Genocide Convention; the International 

26 Dec. 16, 1966, 999 U.N.T.S. 171, available at www2.ohchr.org/English/law/ccpr.htm.
 27 The United States’ position on the question of whether human rights treaties apply extra territorially or 

during periods of armed conflict may be summarized by the comments of Michael Dennis of the US 

Department of State: 

The obligations assumed by states under the main international human rights 

instruments were never intended to apply extraterritorially during periods of armed 

conflict. Nor were they intended to replace the lex specialis of international 

humanitarian law. Extending the protections provided under international human 

rights instruments to situations of international armed conflict with military 

occupation offers a dubious route toward increased state compliance with 

international norms. 

Michael Dennis, Application of Human Rights Extraterritorially in Ties of Armed Conflict and Military 

Occupation 99 AM. J. INT’L L. 119 (2005). 

28 There are also a number of labor law treaties to which a country may be a party, with which a rule of 

law practitioner should become familiar, particularly if international investment in the host nation is being 

encouraged. For a list of labor treaties to which a country is party, see 

http://www.ilo.org/ilolex/english/newratframeE.htm (last visited Sept. 1, 2008). 

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Covenant on Civil and Political Rights (ICCPR);29 the International Covenant on Economic, 

Social and Cultural Rights (ICESCR);30 the Convention against Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment (CAT);31 the Convention on the Elimination of 

All Forms of Discrimination Against Women (CEDAW);32 the Convention on the Elimination of 

All Forms of Racial Discrimination (CERD);33 the Convention on the Rights of the Child 

(CRC)34 and its two Optional Protocols, one on the involvement of children in armed conflict35 

and the other on the sale of children, child prostitution and child pornography;36 the Convention 

on the Rights of Persons with Disabilities (CRPD);37 and the International Convention for the 

Protection of All Persons from Enforced Disappearances38 (not yet in force). Regionally, there 

are the European Convention for the Protection of Human Rights and Fundamental Freedoms 

(ECHR) of 1950,39 the American Convention on Human Rights,40 and the African Charter on 

Human and Peoples’ Rights.41 

The United States is party to the ICCPR, the CAT, the CERD, and the two optional 

protocols to the Convention on the Rights of the Child. Through precise interpretation of the 

treaties themselves, the US considers the majority of its human rights treaty obligations as 

inapplicable to US actors, including US forces, outside US territory. But, Judge Advocates need 

to be aware that the US position is not universally accepted and that they may be called upon to 

respond to human rights complaints submitted to the United Nations. The treaty bodies 

interpreting the treaties to which the US is party expect the US to account for its actions 

wherever they take place. 

Moreover, there are some 40 UN special procedures,42 such as a Working Group on 

Arbitrary Detention, Special Rapporteurs on torture and on extrajudicial, summary or arbitrary 

executions, and a Representative of the Secretary-General on the human rights of internally 

displaced persons, which review complaints from any individual purporting to be a victim of a 

human rights violation, including in Iraq and Afghanistan. Although the US position is that the 

laws of war are the relevant lex specialis for military operations and that the human rights treaty 

bodies and the special mechanisms do not have jurisdiction over the laws of war, as a matter of 

policy and transparency, the US responds to these inquiries. 

In addition, although the United States is not party to its regional human rights treaty, the 

ACHR, it is a party to the Organization of American States, which created the Inter-American 

29 www2.ohchr.org/english/law/ccpr.htm.
 30www2.ohchr.org/english/law/cescr.htm. 

31 www2.ohchr.org/english/law/cat.htm. 

32 www2.ohchr.org/english/law/cedaw.htm. 

33 www2.ohchr.org/english/law/cerd.htm.
 34 www2.ohchr.org/english/law/crc.htm.
 35 http://www.unhchr.ch/html/menu2/6/protocolchild.htm. 

36 http://www.unhchr.ch/html/menu2/6/crc/treaties/opsc.htm.
 37 http://www.un.org/disabilities/convention/conventionfull.shtml. 

38 http://www2.ohchr.org/english/law/disappearance-convention.htm.
 39 www.echr.coe.int/ECHR. 

40 www.oas.org/juridico/english/treaties/b-32.html. 

41 www.hrcr.org/docs/ 

42 See www2.ohchr.org/English/bodies/chr/special/index.htm for complete list of UN special procedures. 

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Commission on Human Rights. That body has a non-binding dispute settlement mechanism, that 

allows it to opine on the consistency of US activities with international law by reference to the 

American Declaration on Human Rights. That body has issued precautionary measures 

pertaining to detainees at Guantanamo Bay and opined on the consistency of certain aspects of 

US military actions in Grenada with the American Declaration on Human Rights. 

The United States’ comparatively narrow interpretation of the applicability of human 

rights treaties allows the US military comparatively greater freedom of action than many 

coalition partners when conducting operations overseas. As discussed in Chapter III, the impact 

of the ECHR on military operations conducted by European coalition partners, for instance, may 

substantially curtail their freedom of action as compared to the United States. 

Other human rights treaties may be applicable to the host nation, however. At the outset 

of rule of law operations, Judge Advocates should review the human rights law instruments to 

which the host state has become party, as well as their reservations and declarations.43 Rule of 

law missions may call upon Judge Advocates to develop plans to implement host nation human 

rights treaty obligations. Judge Advocates should appreciate and account for the complexities of 

implementing such obligations consistent with host nation legal and cultural traditions, but at the 

same time bearing in mind US views of the host nation’s obligations. For instance, though many 

Muslim states have ratified the Convention for the Elimination of Discrimination Against 

Women, most included significant reservations to account for Sharia legal traditions – which 

would likely be counter to US views of the rights of women. 

b) Customary International Law 

Customary human rights norms are part of the applicable legal framework. There is much 

disagreement, though about the particular human rights that have matured into customary law 

and the USG seldom opines. The UDHR should serve as a guide,44 although the United States 

has not taken the position that everything in that Declaration is customary international law. 

C. Conclusion 

Rule of law operations present significant challenges to identifying a comprehensive 

underlying legal framework. No single legal discipline purports to operate as the lex specialis of 

rule of law missions. Instead, rule of law operations require Judge Advocates to draw from a 

broad spectrum of legal disciplines. This chapter provides an overview of both how to identify 

the correct legal framework for a particular operation and of particular legal frameworks likely to 

apply to rule of law operations. Moreover, US policy may require adherence to international 

norms that exceed those strictly applicable to a particular operation. Especially when considered 

in light of the need to establish the legitimacy of the rule of law among the host nation’s 

43 A full list of human rights treaties to which a country is a party and that country’s reservations and 

declarations, as well as any objections to them by other States, can be found at 

www2.ohchr.org/English/law (last visited August 15, 2008). 

44 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-24,COUNTERINSURGENCY D-8 (15 Dec. 2006). (citing the 

United Nations Declaration on Human Rights and the International Convention for Civil and Political 

Rights as “guide[s] for the applicable human rights.”). 

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populace, conduct by US forces that would be questionable under any mainstream interpretation 

of international human rights law is unlikely to have a place in rule of law operations. 

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V.	 The Institutional and Social Context for the 

Rule of Law 

A frequent problem encountered by US Judge Advocates in rule of law operations is a 

lack of experience with non-US legal traditions.1 Past efforts in establishing the rule of law have 

too often ignored the “morality of society,”2 which is necessary to establishing a legal regime 

that will eventually be viewed by the populace as legitimate, the ultimate goal for any rule of law 

operation. Operations in Iraq, for instance, have shown that US officials involved in the reform 

of law often lacked background information about Iraqi law and the civil law system.3 

What follows is a short review of the major legal traditions and some applicable 

considerations to establishing the rule of law in non-US environments. The chapter begins with a 

discussion of legal institutions, focusing on fundamental aspects of legislatures, courts, police, 

corrections, and even military justice (and its differing role in different societies) that may be 

unfamiliar to lawyers. Following that are discussions of legal systems unfamiliar to most 

common law practitioners, including civil law systems and legal systems in which religion plays 

an explicit part (with special emphasis on Islamic Sharia law) and combined systems. Next is 

discussion of some alternatives to traditional courts, some of which are found in virtually all 

societies and some of which are particular to post-conflict societies. Finally, the chapter 

discusses some social influences on the legal system and the efficacy of rule of law programs not 

usually considered by lawyers: gender, civil society, and non-state security providers. 

A.	 Legal Institutions 

1.	 Legislatures 

A legislature is a representative body that makes statute law through a specified process. 

Many deployed Judge Advocates will have little contact with the legislative side of rule 

of law operations, but recent experience of US or other coalition Judge Advocates has 

demonstrated that they may be called upon to advise upon the legislative procedures of the host 

country or, indeed, may be personally involved in the creation of such legislation, especially that 

relating to the host nation armed forces.4 

Typically, the detail of legislation is the responsibility of civil servants or government 

employees. But, in failed states or those requiring overseas military support, individuals with the 

1 See BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 133 (2004). 

2 Id. at 138. 

3 See JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS?: BUILDING THE 

RULE OF LAW AFTER MILITARY INTERVENTIONS 323 (2006). 

4

 In Afghanistan US Judge Advocates were involved in the process of drafting legislation that provided 

for a code of military discipline for the Afghan National Army (ANA) and various Presidential Decrees. 

In Sierra Leone, East Timor, and Brunei British Legal Officers were involved in drafting legislation 

pertaining to the host state armed forces.
 

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relevant experience or ability may not be available. It is in these circumstances that Judge 

Advocates may become involved in the process of drafting new or refining existing legislation.5 

The legislative process of each host nation will likely differ substantially from the US 

model with which most Judge Advocates are familiar. Some will have similar features such as a 

bicameral system, but the process by which the bill passes into law may differ tremendously. If 

the host nation’s legal system benefits from a constitution, the process may be derived from the 

constitution itself;6 in other nations the process may be defined by statute.7 Typically, however, a 

Judge Advocate may encounter significant difficulties in understanding the legislative process of 

a host nation and finding authoritative guides to the same. 

The process of enacting legislation is almost universally cumbersome and fraught with 

bureaucracy. Given the level of effort involved in using the legislative process, it is frequently 

tempting to by-pass the legislative system and attempt to effect reform by resort to executive 

action. Even if this is constitutionally permissible, resort to executive decree should be 

considered a last resort. Making policy through unilateral executive action rather than through 

legislative action is likely to damage the legitimacy of the new host nation government and the 

policies so made. The process of legislation is often as important as the product, both as a matter 

of substance and popular perception. Moreover, a habit of executive lawmaking is likely to result 

in a practical shift in power from the legislature to the executive – a shift that may outlive the 

exigency.8 Where military advisers are trying to promote the rule of law, the use of a system that 

bypasses the legislative process does little to promote adherence to the concept. 

Experience has demonstrated that attempts to overhaul the host nation legal system to 

match the US model will lead to difficulties and is often not the best solution. Although less 

familiar to the Judge Advocate, the local legal system may be as refined and developed as that in 

the US, but more importantly will tend to benefit from a degree of legitimacy that a newly 

imposed system will lack. If tasked with such responsibilities, Judge Advocates should be wary 

of relying too heavily on the familiar US models.9 That does not mean that US sources should be 

disregarded, and several organizations, including the American Law Institute and the American 

Bar Association10 produce model acts for legislatures. 

5

 If the deployment results in the military becoming an occupying power, the ability of the power to refine 

existing legislation and to enact new legislation is limited by the Fourth Geneva Convention. See section 

IV.B.2. 

6 See, e.g., U.S. CONST. art. I, sec. 7. 

7 See, e.g., Parliament Act 1949, 12, 13 & 14 Geo. 6. c. 103 (Eng.). 

8 See, e.g., European Commission Regular Reports on Romania 2000-2002 (noting with alarm the 

widespread use of presidential decree by Romania).

9

 The experiences of those founding the ANA reflect the problem well. See MAJ Sean M. Watts & CPT 

Christopher E. Martin, Nation Building in Afghanistan – Lessons Identified in Military Justice Reform, 

ARMY LAW. 1 (May 2006). 

10 See www.ali.org and www.abanet.org. 

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Forcing New Laws in the Face of an Established Legal System 

Attempting to supersede locally accepted law with a foreign model may result in 

judges adopting the old law and refusing to adhere to the newly created law. In 

Iraq, even as late as 2005, judges still refused to impose the minimum sentences 

required by CPA order for possession of crew-served weapons and imposed 

sentences reflective of the previous legal regime. 

2. Courts 

The military may be involved in both restructuring and reconstructing aspects of 

domestic legal systems. Judge Advocate involvement in the judicial aspects of rule of law 

operations can take two general forms: actually operating a court system in the absence of civil 

authority (especially during and immediately following high intensity conflict) and helping to 

reconstruct the host nation civilian (and military) court system. The former mission is essentially 

the operation of provost courts during a period of occupation.11 The latter is a reconstruction 

mission that requires a broader understanding of the overall reconstruction mission and will 

involve a variety of participants, including the DOD, other USG agencies, the host nation, and 

IOs and NGOs. In support of both missions, Judge Advocates may be required to advise on court 

structures, practices and procedures, as well as assessing and analyzing the ongoing performance 

of such systems. In conducting both missions Judge Advocates need to be mindful of the 

generally recognized standards for the operation of civilian courts, since those are the standards 

by which both the local population and the international community are likely to judge the 

legitimacy of whatever court system is operating under US supervision. 

It may not be possible to operate domestic court systems to international standards, but 

guidance remains important by providing goals for reconstruction efforts. 

The tendency in most, if not all, rule of law missions to focus on domestic criminal 

justice (vs. civil legal) system is virtually universal. Military deployments, necessitated by some 

form of disorder often involving large scale criminal activity, seek to re-establish or maintain law 

and order by bringing those responsible to account for their wrong doing. Unless the criminal 

justice system is seen to be a demonstrable success, public support is likely to be limited and the 

rule of law mission will be severely handicapped. 

As lawyers, most Judge Advocates are already intimately familiar with the basic 

requirements for a criminal justice system. This section will cover the substantive requirements 

in only the slightest detail, with some additional attention to the administrative aspects of court 

systems and the particular challenge faced by attempting to reconstruct a court system. 

Procedural Requirements and Openness 

Procedure in any criminal trial should reflect certain basic standards. All individuals tried 

for criminal offenses should benefit from the presumption of innocence and must not be forced 

to testify against themselves. The right to a public trial without undue delay not only ensures 

public confidence in the court system but also protects individuals from the administration of 

11 See U.S. DEP’T OF ARMY, PAM 27-9-2, MILITARY JUDGES’ BENCHBOOK FOR PROVOST COURTS (4 Oct. 

2004). 

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justice in secret. The right of an individual to know promptly the nature of the allegations is a 

basic tenet of all criminal justice systems. The concept of “equality of arms” dictates that neither 

the prosecution nor the defense should have a substantial advantage in conduct of an inquiry.12 

The defendant has the right to be tried in person and through legal assistance of one’s choosing 

and to examine witnesses against him, call witnesses on his behalf13 and, if convicted, the right 

of appeal. 

Guidelines on the role of prosecutors were adopted by the UN in 1990,14 and by the 

International Association of Prosecutors in 1995.15 Both documents seek to advance the 

principles founded in the Universal Declaration of Human Rights. The guidelines were 

formulated to assist states in securing and promoting the effectiveness, impartiality, and fairness 

of prosecutors. They serve as an excellent reference point for any Judge Advocate required to 

provide advice or guidance on the duties and responsibilities of those in public office charged 

with the prosecution of offenses. 

In many societies emerging from long-term conflict, though, defense lawyers may be 

practically unknown, and rule of law missions (which frequently concentrate on ensuring that the 

judges and prosecutors are of an acceptable standard) will often need to focus more heavily on 

training and deploying a competent corps of defense lawyers than prosecutors. Judge Advocates 

should be mindful, though, that the role of defense lawyers may be much less central to the 

judicial process in some non-adversarial systems. 

Judicial Independence, Impartiality, and Training 

No set of procedural protections will provide a court with legitimacy if the court dealing 

with a criminal matter is not both independent of the state and impartial. The right for an 

individual to have recourse to courts and tribunals which are independent of the state and who 

resolve disputes in accordance with fair procedures is fundamental to the protection of human 

rights. 

In order to establish whether a tribunal can be considered “independent,” regard must be 

had to the manner of appointment of its members and their term of office, the existence of 

guarantees against outside pressures, and the question whether the body presents an appearance 

of independence. 

Systems of electing and appointing judges have their own inherent strengths and 

weaknesses. If judges stand for election, they may be required to espouse personal views on 

12 Equality of arms is central to any adversarial justice system. See Martin Blackmore, Equality of Arms
 

in An Adversary System, http://www.iap.nl.com/speeches/2000_j.html. The right is expressly protected in 

International Human Rights treaties. See International Covenant on Civil and Political Rights, art. 14; 

European Convention on Human Rights, art. 6. 

13 International human rights standards do not generally recognize trial in absentia. The United States 

position was discussed by the Supreme Court in Crosby v United States, 506 U.S. 255 (1993), which 

concluded that the right is not an absolute one and can be waived by the defendant. 

14 Eighth Congress on the Prevention of Crime and the Treatment of Offenders, Havana Cuba 1990, 

Guidelines on the Role of Prosecutors, available at http://www.unhchr.ch/html/menu3/b/h_comp45.htm.
 15 The International Association of Prosecutors was established in June 1995 to promote and enhance the 

standards which are generally recognized internationally as necessary for the proper and independent 

prosecution of offenses. See http://www.iap.nl.com/stand.2.htm.
 

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certain contentious issues and areas of the law, which may raise questions over their 

independence and impartiality. Indeed, if dependent on the electoral system, an elected judiciary 

may preclude representation in the judiciary from all ethnic communities in a state.16 On the 

other hand elections allow for direct public participation in the appointment process, thus 

creating a greater level of public acceptance and support. 

Judicial Tenure in East Timor 

Experience has shown that it is not always possible to provide members of the 

judiciary with complete security of tenure. In East Timor, due to the legal vacuum 

created by the departing Indonesian Regime, almost all qualified personnel had 

left the country, including all experienced judges, prosecutors or defense lawyers. 

A decision was made to appoint East Timorese nationals who had law degrees but 

no prior professional experience as judges. They were appointed to initial twoyear terms. 

There are two aspects to impartiality: First, the tribunal must be subjectively free of 

personal prejudice or bias. Second, it must also be impartial from an objective viewpoint, that is, 

it must offer sufficient guarantees to exclude any legitimate doubt in this respect.17 

The level of education and experience of judges will vary tremendously between 

countries, indeed, it will often vary tremendously between different provinces within a country. 

In some countries, judges have little or no formal training and preside over courts who act, in 

essence, as courts of equity. 

16 A system of proportional representation may be useful in providing representation proportionate to the 

ethnography of a state. 

17 See R. v. Dundon EWCA 621 (2004), Grieves v. United Kingdom, 39 Eur. H.R. Rep. 2 ¶ 69 (2004). 

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Judicial Education in Afghanistan 

Judges from many of the provinces of Afghanistan in 2003 had received less than 

a high school education.18 Priority for those seeking to improve aspects of the rule 

of law was, therefore, concentrated on creating a widespread program of judicial 

training.19 Courses lasting several weeks were run in Kabul and provided basic 

guidance to several hundred regional judges. The training focused on human 

rights, international conventions, judicial skills and attitudes, and judicial 

independence. Judges also received resource materials covering regulations on 

counter narcotics, juvenile violations, anti-corruption, and the structure of courts 

in Afghanistan. Centralizing such training provided a rare opportunity for judges 

from far-flung provinces to meet and share experiences whilst providing a basic 

level of instruction. 

Training of the judiciary may be guided by the roles and responsibilities of judges which 

were adopted by the United Nations in 198520 which along with the Bangalore Principles of 

Judicial Conduct21 serve as an excellent template as to the standards to be upheld when 

exercising judicial office. 

Other solutions to the lack of trained local judiciary include importing international 

judges to fill the vacancies. This has the distinct advantage of establishing a fully trained and 

highly educated judiciary in a very short time frame. Such an approach can, however, hinder 

legitimacy and develop reliance on outside support and should be done in conjunction with the 

development of local assets and resources.22 

18 USAID, GENERAL ACTIVITY REPORT FOR 8 – 28 DECEMBER 2005. 

19 Training sessions were held at the Supreme Court for some of Afghanistan’s least educated judges from 

Kapisa, Parwan, Ghazni, Wardak and Logar Provinces. 

20 See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 

Basic Principles on the Independence of the Judiciary (1985), adopted by the General Assembly by 

resolutions 40/32 of 29th November 1985 and 40/146 of 13th December 1985. 

21 BANGALORE PRINCIPLES OF JUDICIAL CONDUCT (2002), available at 

http://www.ajs.org/ethics/pdfs/Bangalore_principles.pdf. The Bangalore Principles arose from a UN 

initiative with the participation of Dato Param Cumaraswamy, UN Special Rapporteur on the 

Independence of Judges and Lawyers. A draft code was discussed at several conferences attended by 

judges from both the common law and civil codes and were endorsed by the 59th session of the UN 

Human Rights Commission at Geneva in 2003. 

22 Michael E Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post Conflict 

Peace (U.S. Inst. for Peace Spec. Rep. No. 112 October 2003). 

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Screening Judges in Iraq23 

The process of screening of the judiciary was undertaken by the Coalition 

Provisional Authority (CPA) in Iraq. It was deemed necessary to remove any full 

members of the Ba’ath party from public office. The CPA then allowed the Iraqi 

Council of Judges to reassume responsibility for judicial appointments and 

promotions. Moreover, the Council, headed by the Supreme Court’s Chief Justice, 

held responsibility for investigation into alleged misconduct or professional 

incompetence. This locally administered process was not only widely perceived 

as successful but maintained the necessary independence of the judiciary from the 

executive. 

Adequate Physical Infrastructure 

The construction or reconstruction of the physical aspects of the justice system is a 

concurrent requirement along with the training and education of the personnel to man it. In some 

theaters, the need to provide for physical venues initially outstrips the need to provide for judges 

and prosecutors. Iraq provides a classic case in point.24 The need to involve and consult the local 

judiciary in all aspects of the reconstruction process must not be underestimated. A “West is 

Best” mentality to reconstruction should be avoided at all costs; locally based solutions are often 

far more effective in the long term. 

Computers in Iraqi Courthouses 

The provision of computers and other information technology assets to many of 

Iraq’s courthouses was of little benefit, rendered ineffective by the lack of 

electricity or inability of any of the court staff to use them. Iraqi judges stated that 

they would have preferred a generator and air conditioning to abate the 120 

degree temperatures endured in the summer months rather than a computer that 

served no useful purpose. 

Engineers may take the lead on physical reconstruction projects like court buildings, but 

they will require specialist advice from Judge Advocates. It is prudent for the Judge Advocate to 

attempt to consult with and actively involve the local judiciary in the process. As with any 

development mission, the projects should, as far as possible, be tailored according to the local 

requirements. Factors such as accessibility for the population, reliability of power supplies, 

ability to hold prisoners on remand, and security needs, all blend into the equation when deciding 

the location of court buildings. In some situations, it will be desirable to benefit from the 

23 For information on vetting public employees see OFFICE OF THE UN HIGH COMMISSIONER FOR HUMAN 

RIGHTS, RULE OF LAW TOOLS FOR POST-CONFLICT STATES – VETTING: AN OPERATIONAL FRAMEWORK 

(2006), available at http://www.ohchr.org/english/about/publications/docs/ruleoflaw-Vetting_en.pdf. For 

further information about the ICTJ research project on vetting and additional guidelines being developed 

see http://www.ictj.org/en/research/projects/vetting/index.html. 

24 Efforts to reconstruct courthouses and refurbish others were estimated in 2005 to amount to $62.8 

million. US DEPARTMENT OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2005 – IRAQ. 

Reviews conducted in Iraq suggested that almost all court buildings lacked adequate perimeter and barrier 

protection. 

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agglomeration economies from court buildings offering several courtrooms. This may be 

preferable in areas where the security of the court buildings is the highest priority. 

Adequate Administrative Infrastructure 

Along with reconstructing the physical infrastructure of a legal system, Judge Advocates 

are likely to be involved in reconstructing the administrative aspects of a judicial system. It is 

easy to overlook the importance of court reporters, case tracking systems, and office equipment. 

The Judge Advocate and others involved in these assessments should closely scrutinize the 

“system of systems” that the courts use to conduct their work. How do they interface with the 

police after an arrest is made? How is the docket prepared? How are cases tracked from arrest, to 

trial to incarceration to release? During this process, focus on whether the process is transparent 

and whether there are nodes in the system that would permit an individual to dispose of cases (or 

people) outside of the legitimate process and with little likelihood of detection. In most cases, 

this analysis will reveal significant structural weaknesses in the system in place. These 

weaknesses will likely involve both internal tracking within a court and the systems that connect 

them with both the police and the penal system. Once the weaknesses are identified, Judge 

Advocates should work through their command to seek the advice and assistance of 

professionals who have experience in developing administrative systems for courts in transitional 

or developing societies. 

Even worse than overlooking administrative needs is the instinct to apply the standards of 

highly developed nations to the administrative structure of courts in areas undergoing 

reconstruction. Thus, it is usually better to favor low-tech solutions, such as manual court 

reporting and paper filing systems. Major electronic improvements are likely to require 

substantial investment in both money and training, and they will operate at the mercy of the 

power grid, which itself is unlikely to be reliable in a post-conflict environment, a lesson learned 

by many recently deployed Judge Advocates. Furthermore, the labor-intensive nature of manual 

system is frequently a positive feature in environments where job creation itself can contribute to 

the restoration of civil authority.25 When it comes to administrative infrastructure, the clear 

lesson is that simplicity is key. 

Problems of Communication in East Timor 

Problems with communication can be substantially exacerbated by administrative 

burdens. In East Timor, for instance, problems arose with translation because 

United Nations Transitional Administration in East Timor (UNTAET) adopted 

four official languages for the new domestic Court system, a decision that created 

significant additional translation costs. 

Security 

The question of security for judges and other court staff is often a high priority. Security 

must be afforded to all those who serve in the legal system, including judges, prosecutors, 

defense attorneys, translators, court recorders, and witnesses alike. Without individuals prepared 

to serve in the criminal justice system, criminals and insurgents will continue to enjoy relative 

impunity. 

25 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 5-17 (15 Dec. 2006). 

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3. Police 

Rule of law operations involve policing at two separate levels. First, as the Dominate 

phase evolves into the Stabilize phase, combat forces previously engaged in high intensity 

conflict will shift over to a police role. Second, as the theater matures into one in which full-scale 

stability operations are underway, US forces are likely to participate in the reestablishment of 

civilian police functions. 

a) Conducting Police Operations 

The history of military deployments in the late 20th and early 21st Century is littered 

with examples of the military being tasked to perform policing functions.26 In Kosovo, for 

instance, military forces were tasked to perform investigative, detention, arrest and peacekeeping 

functions. MPs will take the lead in the police elements of rule of law missions.27 Commanders 

need to understand that the application of force in a police context is very different than in major 

combat operations, and they will need to recognize (often with the help of Judge Advocates) the 

point at which they need to change force models. Assuring that military forces receive adequate 

training, and that appropriate ROE are promulgated and understood by coalition military forces, 

is critical to successfully policing in the aftermath of high intensity conflict, and will be critical 

to developing both the good will of the populace and establishing the legitimacy of the legal 

rules that are being enforced. Both MPs and Judge Advocates may be central in helping shape 

the Soldiers and commanders’ thinking in such an environment. 

b) Re-establishing Host Nation Police Functions 

In addition to actually providing the security that police provide, US forces are will also 

be working to re-establish a civilian police capability. 

Police Force Composition 

The importance in recruiting and training an indigenous police force is paramount in all 

situations where security is compromised. The process of identifying, recruiting, and training 

police and related justice experts is often time-consuming, resulting in delays in deploying an 

effective police force.28 One solution in such cases is to import civilian police in the form of 

international police, which can be an effective and powerful short-term solution superior to retasking infantry and other combatant units to police duties. But, as with many aspects of rule of 

law operations, a 60% solution achieved by the local population is likely to be far more effective 

than attempting to impose a 100% solution by overseas forces. Indeed, the UN has tended to shift 

focus from importing their own international police force to focus primarily on the reform and 

restructuring of local police forces. Moreover, police forces should aim to be representative of all 

cultural aspects of society, not only assisting in the level of acceptance by the local population, 

but stressing the importance of equal treatment under the law. 

26 Report of the Panel on United Nations Peace Operations (The Brahimi Report), A/55/305 - S/2000/809 

(2000), available at http://www.un.org/peace/reports/peace_operations/docs/full_report.htm.
 27 The MP branch is currently producing training plans and is currently revising FM 3-19.10, Law and 

Order Operations, to include coverage of the police (and prisons) aspects of rule of law operations. 

28 See The Brahimi Report, supra note 26.
 

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One of the first decisions that will have to be made in any particular stability operation 

will be whether to retain (and retrain) an existing police force or simply to start from scratch. 

Whether recruitment from scratch is superior to reforming existing resources will be theater 

specific. A corrupt police establishment that provides a modicum of security may, in the short 

term, prove better than no police force at all. If, as experienced by the British Forces in Iraq, 

police units are central in serious human rights abuses it may prove necessary to effect complete 

reform.29 Whether starting from scratch or reforming an existing establishment, it will be 

necessary to vet30 both existing police and new recruits to assure that they are not disqualified 

from service due to past participation in human rights violations or other misconduct. 

As with other areas in rule of law operations, flexibility and sensitivity to local culture 

cannot be overstressed. Given the variety of policing arrangements in different countries, it may 

be necessary to have a local legal expert, or an entire advisory legal staff, if necessary, to help 

manage the formation of a new police force or the reform of an old one.31 For instance, as 

opposed to the model adopted in the US, in many nations, the use of police forces with close or 

formal ties to the military is common, for example the Italian Carabinieri32 and the availability of 

quasi-military models for police may be particularly appropriate for those seeking to police in 

non permissive environments. 

Training 

Although not all-inclusive, some of the important skills training that officer candidates 

receive should include: 

•	 interpretation and application of federal, provincial and municipal statutes, codes, 

and rules 

•	 apprehending violators 

•	 use of graduated force 

•	 proper treatment of detained individuals 

•	 interviewing and interrogating suspects 

•	 conducting investigations and effective documentation/collection of evidence 

•	 crisis management 

•	 weapons use, maintenance, and marksmanship 

•	 physical fitness 

29 See JAMES DOBBINS, ET AL., THE BEGINNER’S GUIDE TO NATION-BUILDING 50-51 (2007). 

30 For information on vetting public employees see OFFICE OF THE UN HIGH COMMISSIONER FOR HUMAN
 

RIGHTS, RULE OF LAW TOOLS FOR POST-CONFLICT STATES – VETTING: AN OPERATIONAL FRAMEWORK
 

(2006), available at http://www.ohchr.org/english/about/publications/docs/ruleoflaw-Vetting_en.pdf. For 

further information about the ICTJ research project on vetting and additional guidelines being developed 

see http://www.ictj.org/en/research/projects/vetting/index.html. 

31 Id. It may be necessary to employ persons with different areas of expertise, to include criminal law, 

civil law, human rights law, Sharia, etc.

32 The Carabinieri are a separate branch of the Italian armed forces. 

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•	 self-defense, and control/arrest tactics 

•	 operation of police equipment including vehicles, communication systems, and 

police computer systems 

•	 effective oral and written communication 

•	 first aid/CPR 

•	 defensive driving 

•	 participating in the judicial process with other members of the criminal justice 

system 

Improper arrest and detention issues are best addressed through successful completion of 

a comprehensive training program and by implementation of thorough standard operating 

procedures (SOPs). 

The Impact of Police on Both Criminal and Civil Courts in Iraq 

In many assessments, local Iraqi judges emphasized that the lack of police 

personnel and the lack of cooperation from police agencies had a direct impact 

upon the operations of the courts. The criminal courts cannot operate without the 

police to refer cases to them, carry out investigative functions and serve process. 

The police also serve legal process upon individuals in civil cases, such that lack 

of cooperation from the police in that function can gridlock the entire civil court 

system. The civil court judge in Ad Diwaniyah specified the lack of police 

cooperation in this regard as the major reason why there were no civil lawsuits 

being adjudicated in his court.33 

Progress has come slowly, but in 2008 the Council of Representatives in Iraq 

passed legislation for a disciplinary code and court system for the Iraqi police to 

conduct internal discipline. They have already been successful and are making 

great progress in training their new judges. 

4. Detention and Corrections 

All systems of justice must be able to confine and protect detainees. A state with no pretrial detention capability cannot hold trials, and one lacking long-term confinement facilities 

cannot punish convicts,34 and in neither case will the state have any reasonable prospect of 

instituting the rule of law. However, a state that systematically mistreats the incarcerated or fails 

to provide for their subsistence has no greater claim to the rule of law than one with no prisons at 

all. In post-conflict societies, it is likely that there will have been a recent history of poor 

conditions in detention facilities, as a matter of either intentional mistreatment (of both criminal 

and political prisoners) or simply as a matter of poverty. In Iraq, numerous assessments of the 

33 LTC Craig Trebilcock, Legal Assessment of Southern Iraq, 358th Civil Affairs Brigade (2003) 

[hereinafter Legal Assessment of Southern Iraq]. 

34 Throughout this section, this Handbook will use the terms “jail” and “prison” to refer respectively to 

short- and long-term detention facilities. 

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police and court systems identified the inability of criminal courts to commit sentenced prisoners 

to a specified prison term when such correctional facilities did not exist.35 

As is the case with policing, MPs are likely to take the lead with regard to the necessary 

reform.36 

a) Basic Facility Requirements 

There is a wide spectrum of considerations regarding what constitutes an adequate 

confinement facility, which will differ depending upon the circumstances in any given situation. 

For example, a temporary detainee holding area consisting merely of concertina wire, a sentry or 

guard, and a tent to provide shelter might be adequate in an austere environment. 

In more mature areas of operation, however, there are a number of characteristics to 

which many prison facilities either adhere or aspire to. Some features and facilities of most wellequipped prisons include:37 

•	 walls or other security enclosures that prevent both escape from the facility and 

infiltration from outside the facility38 

•	 an exercise yard or gymnasium 

•	 a chapel, mosque, synagogue or other area dedicated to religious observances 

•	 facilities for individual and group counseling 

•	 a healthcare facility 

•	 a segregation area, used to separate unruly, dangerous, or vulnerable prisoners 

from the general population. Incarcerated persons may be placed in segregation to 

maintain the safety and security of the institution or any person within the prison, to 

preserve the integrity of an ongoing investigation, or when no other accommodation 

is available.39 

•	 monitored safe cells, to protect certain detainees who pose a risk of harm to 

themselves
 

35 Legal Assessment of Southern Iraq, supra note 33. 

36 See the text accompanying note 27. 

37 This list is not intended to be all-inclusive. As always, the facilities listed above are subject to the 

resources available at the time and should not be construed as necessities unless required by domestic, 

international, or customary international law; humane treatment remains the standard by which facilities 

and personnel are ultimately judged. 

38 Prisons are normally surrounded by a number of barriers to prevent escape, which may include fencing, 

walls, berms, inaccessible geographical features, concertina wire, electric fencing, secured main gates and 

doors, guard towers, floodlights, motion sensors, working dogs, patrols, alarms, and countless 

combinations of these or other security measures. 

39 The term “segregation” should be distinguished from “isolation,” which is used by some institutions as 

a form of punishment for misbehavior by the detainee. Some types of detainees should be segregated 

from the general population, including persons accused of sex offenses (particularly against children) and 

informants. 

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•	 a library or book distribution program 

•	 visiting areas where detainees can meet with family, friends, clergy, or attorneys 

b) Human Rights 

Of all the considerations which must be addressed when running a confinement facility, 

few issues have more visibility to outside scrutiny than human rights. Within the broad spectrum 

of various human rights concerns, there are a host of issues to be considered. Although not a 

comprehensive list, several of these issues which must be addressed include: 

•	 housing that adequately protects detainees from the elements 

•	 adequate food and water (the provision of which should accommodate to the extent 

possible the detainee’s religious dietary practices) 

•	 care for detainees with dental and medical conditions (including pregnancy) 

•	 care for detainees with potential mental health conditions 

•	 handling juvenile and female detention and other segregation requirements 

•	 force-feeding hunger-striking detainees 

•	 detainee escape, recapture, and misconduct 

•	 press interviews with detainees 

•	 access to detainees by family, local medical personnel, and local court personnel 

•	 religious accommodation 

•	 detainee labor 

•	 use of force within the detention facility and maintaining good order and discipline 

Although many international agreements provide for differing forms of treatment of 

detainees based on status (e.g. prisoners of war, retained personnel, and civil internees), the 

standard baseline treatment for any detainee, regardless of status, is humane treatment.40 

40 Humane treatment is the standard under numerous authorities, including international law, customary 

international law, domestic law (in a majority of countries, to include the United States and most allied 

nations). See generally the Second, Third, and Fourth Geneva Conventions; AR 27-10; AR 27-100; AR 

190-8; AR 381-10; DODD 5240.1-R; Executive Order 12333; U.S. DEP’T OF ARMY, FIELD MANUAL 2­

22.3, HUMAN INTELLIGENCE COLLECTOR OPERATIONS (6 Sept. 2006); and The Detainee Treatment Act 

of 2005, Pub. L. No. 109-148, 119 Stat. 2739. Prisoners are specifically covered by certain international 

agreements, such as article 10 of the International Covenant on Civil and Political Rights. Other than the 

Geneva Conventions and other legal principles accepted as customary international law, many of these 

resources will not be applicable or may merely be advisory in nature, depending upon both the US’s and 

the host nation’s views regarding these international norms. For US forces, however, the Detainee 

Treatment Act of 2005 prohibits inhumane treatment without regard to the status or location of the 

detainee. See 42 U.S.C. 2000dd(a) (“No individual in the custody or under the physical control of the 

United States Government, regardless of nationality or physical location, shall be subject to cruel, 

inhuman, or degrading treatment or punishment.”). 

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The best way to ensure that proper treatment standards are being enforced is for Judge 

Advocates to personally review conditions of detention facilities and personally interview 

detainees on a random, unannounced basis. It is important to interview multiple detainees outside 

the presence of facility staff. Although it may be tempting to discount claims of abuse from 

individual detainees (particularly since detainees from some organizations are taught to routinely 

allege abuse), experience has shown that repeated and consistent detainee reports of abuse or 

mistreatment can be reliable indications of a problem and should be investigated further. 

Detainee conditions should also be reviewed by outside sources to promote legitimacy and 

transparency of the detention process. Several entities that routinely conduct such inspections 

include The International Committee of the Red Cross (ICRC), the Organization for Security and 

Co-operation in Europe, the United Nations’ Children’s Fund, Amnesty International, and 

various other human rights organizations. Of course, coordination with such outside entities is a 

matter that must be raised to and approved by commanders. 

5. Military Justice 

A state’s survival is often dependent upon a disciplined armed force capable of ensuring 

its sovereign independence. But an armed force without effective discipline is easily turned to a 

disruptive force, and overreaching by military forces is a prime example of the kinds of arbitrary 

state actions whose eradication is a primary component of the rule of law. In order to become 

disciplined, military forces have traditionally been subject to (and adhered to) their own internal 

military codes. 

One of the many tasks given to the military conducting rule of law operations includes 

the restructuring and training of the host nation’s armed forces. Recent examples of this practice 

include Iraq, Afghanistan, Sierra Leone and East Timor. Moreover, due to the ability to limit the 

number of variables during such missions, the military have enjoyed some success in this field. 

A justice system involving military courts may, however, be overly burdensome to a 

nascent system of military discipline. Such was the conclusion of those responsible for drafting a 

military discipline system for the newly established East Timorese Defense Force (ETDF).41 If 

the civilian court system is a strong one, and military commanders have little or no experience in 

exercising quasi judicial powers, ceding the power to administer military justice to civilian courts 

may be appropriate. If a separate system of military courts is adopted, trials should adopt 

standards of criminal procedure similar to those afforded to individuals tried in the civilian 

criminal justice system. 

The structure of military courts does not follow any universal standard. Many military 

courts are made up solely of military officers, while others are presided over by civilian judges 

with military personnel acting as the fact finding panel.42 In the European Union, for instance, 

41 Interview with Lt Col J. Johnston, British Army (ALS) (Oct. 2006) [hereinafter Johnston Interview]. 

42 British Courts Martial are presided over by civilian judge advocates. The judge advocates are judges 

appointed by the Lord Chancellor, the head of the Department for Constitutional Affairs who is 

responsible for the appointment of all civilian judges in all English Courts. An Army lawyer will 

prosecute while the defendant will be represented by a civilian barrister or solicitor. The fact finding body 

are comprised of military officers and warrant officers. For further guidance see the Army Act 1955 and 

the Courts Martial (Army) Rules (1997). 

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the necessity for civilian, as opposed to military, judges in courts-martial is considered a matter 

of human rights law, as confirmed by the European Court of Human Rights in several recent 

cases. The concern in such cases is that the central role of the civilian judge was an important 

factor in ensuring the impartiality of proceedings, and unlike in the US system, the court 

determined that a uniformed judge offered no such guarantees.43 

Although representation by military defense lawyers is taken as a given in the US system, 

the use of military defense lawyers is not universal. In the British courts-martial system, for 

instance, the ability of the military lawyers to represent the defendant has been curtailed by 

human rights legislation in order to foster the independence necessary for defense counsel to 

operate. Consequently, both British Army and Air Force courts martial no longer offer the 

opportunity for the defendant to be represented by military counsel.44 

The extent and scope of the jurisdiction of military courts and tribunals also varies greatly 

from nation to nation. Some systems follow the US model and allow for concurrent jurisdiction 

for offenses that violate both military and civilian law. Some military justice systems have 

jurisdiction for “on duty” offenses, and others are more limited still, dealing only with minor 

military matters and allowing the civilian courts to have exclusive jurisdiction over more serious 

offenses. 

Given the unique nature of military service, a number of military specific offenses45 may 

have to be included in any code of military discipline. Recent examples drafted by military 

lawyers practicing in this sphere include those used by the ETDF and Iraqi army.46 In the former, 

the challenges of converting a former guerilla force (the Falantil) into a regular army led to the 

decision to limit the number of offenses within the military criminal code and cede control of 

most offenses to the civilian courts.47 The reverse decision was taken in Afghanistan where, 

historically, the military and civilian criminal courts had almost become conjoined. A new 

system of military courts and non-judicial punishment ceded wider jurisdiction back to the 

military.48 

43 See Grieves v. United Kingdom, supra; Cooper v. United Kingdom, 39 Eur. H.R. Rep. 8 ¶ 104 (2004). 

44 Following Findlay v United Kingdom 3 C.L. 342, 24 Eur. H.R. Rep. 221 (1997), policy was adopted by 

the newly formed Army Prosecuting Authority that they would not offer representation to RAF 

defendants. 

45 Such offenses have no equivalent in domestic criminal law. For example, absence without leave may be 

deemed to be a matter between the employer and the employee resulting in termination of service but 

would not lead to criminal censure potentially leading to deprivation of liberty. 

46 See Creation of a Code of Military Discipline for the New Iraqi Army - CPA Order No 23. The offenses 

are set out in Section 3 of the order. The elements of the offenses are included in Annex A to the Order. 

http://www.cpa-iraq.org/regulations/20030820_CPAORD_23_Creation_of_a_Code_with_Annex.pdf. 

See also UNTAET/REG/2001/12 dated 20 July 2001 Regulation No. 2001/12 On the Establishment of a 

Code of Military Discipline for the Defense Force of East Timor. Section 4 sets out the military offenses 

deemed to be breaches of service discipline, the annex to the regulation details the elements of each 

offense. www.un.org/peace/etimor/untaetR/2001-12.pdf 

47 Johnston Interview, supra note 41. 

48 See Watts & Martin, supra note 9. 

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B. Civil Law Systems 

The term “civil law” is commonly used in two different meanings: First, to distinguish 

the law that applies to disputes between private individuals from the law that governs the 

relationship between individuals and the state (e.g. criminal law or constitutional law). Secondly, 

the term is used to describe a legal system distinguishable from common law systems. This 

section addresses the latter meaning. It intends to introduce JAs to the main characteristics and 

basic principles of the civil law system, with regard in particular to criminal procedure. This 

section will also draw comparisons between civil law and the common law systems typically 

more familiar to the JA. 

The civil law system is predominant in most of the world, in particular in continental 

Europe, South America, parts of Asia (including Iraq) and Africa,49 while the common law 

system, on the other hand, is found in the United States (except Louisiana), the United Kingdom, 

Canada (except Quebec) and other former colonies of the British Empire. 

The historical origins of civil law can be traced back to Roman law, especially the Corpus 

Juris Civilis of 534 as later developed through the Middle Ages by legal scholars. However, 

Canon law, local legal traditions, the philosophical developments of the Enlightenment, and 

elements of the Islamic legal tradition have likewise had a significant impact on its development. 

Civil law today is predominantly characterized by the legislative efforts of continental 

European states to transcend legal influences and customs into a modern, coherent, complete and 

entirely rational system of legal codification in the 18th and 19th century. The most influential 

codifications originated from France (Civil Code of 180450 and Code of Criminal Procedure of 

180851) and Germany (Civil Code of 189652)

53. These codifications became the basis for legal 

systems world-wide.54 However, it should not be assumed that the laws in countries belonging to 

the civil law tradition are largely similar or even identical. Rather, they share common 

methodological concepts and principles. 

Because of the influential legislative initiatives mentioned above, civil law systems are 

commonly associated with the concept of abstract codification. In contrast, common law systems 

are seen to rely more heavily on binding precedent and case law. However, as codification also 

occurs in common law systems and precedent, albeit generally not formally binding, is also 

known to civil law systems, these elements do not of themselves provide an adequate criterion 

49 See JOHN MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF
 

EUROPE AND LATIN AMERICA 2 (2d ed. 1985). 

50 Also referred to as ‘Code Napoleon’ or ‘Code Civil’.
 51 Also referred to as ‘Code d’instruction criminelle’ or ‘CIC’.
 52 The ‘Bürgerliches Gesetzbuch’ or ‘BGB’. 

53 The Code Civil of 1804 and the Civil Code of 1896 are still in force in France and Germany.
 54 It is noticeable that the spread did not singularly occur through military conquest but often occurred 

voluntarily in an effort at modernization, in particular in Asian countries. In many cases, the adaptation of 

the foreign code was almost identical to the donor system, while in other cases the codification added 

elements of the local legal traditions to the foreign body of law that was adapted.
 

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for distinguishing between the two systems.55 The differences are rather to be found in the 

methodological approach to law. 

1. The Civil Law Ideal of Separation of Powers 

The most important characteristic of the civil law system is its emphasis on complete 

separation of powers, with all lawmaking power assigned to a representative legislature. The 

idea of (complete) separation of powers was advanced by Montesquieu as part of the intellectual 

revolution taking place at the eve of the French revolution in 1789.56 

Although common law systems like the US system also accept the principle of separation 

of powers, their approach and philosophy in applying this principle differs from that in civil law 

countries. In both the US and the United Kingdom, the judiciary served as a progressive force on 

the side of the individual against abuse of power by the state.57 Experiences in civil law 

countries, on the other hand, where judges had often served as the extended arm of repressive 

governments, supported the idea of restricting judicial power by emphasizing the primacy of the 

legislative power.58 As a result of this emphasis, civil law systems consider any judicial 

lawmaking power as undemocratic and consequently illegitimate. Given this approach to judicial 

power, from the civil law perspective, a legal system that gives judges lawmaking power, 

violates the rule of law.59 

Thus, it is the ideal that codes reflect that distinguishes common from civil law systems. 

Contrary to the methodology of common law systems’ codifications, which make no pretense of 

completeness, codification in civil law systems, in the spirit of legal positivism, intends to 

regulate a legal field exhaustively and exclusively. In other words, to fulfill the goal of the 

separation of powers and to prevent any lawmaking function of judges, codes in civil law 

systems are theoretically supposed to leave no gap that a judge would need to close. At least in 

theory, there is no space for considerations of justice outside the codified law, even if the price is 

a decision that may seem unjust or unrealistic. Under the civil law system’s ideology, the 

requirement for judicial consistency and predictability requires a legislative predetermination of 

what is “just,” at least to the extent possible.60 

Judges in civil law systems are thus compelled to find a basis for their decisions within 

the code. This will often reflect in the style of legal opinions, which tend to be shorter and more 

55 See MERRYMAN, supra note 49, at 26.
 56 See id. at 15.
 57 See id at 16.
 58 Ironically, this idea of limiting judicial authority somewhat resembled the position taken by the
 

monarchical rulers which had likewise attempted to restrict judicial power by demanding strict adherence 

to their legislation. 

59 See TAMANAHA, supra note 1, at 124-25. 

60 The Prussian Landrecht of 1794 is the most rigid legislative attempt (and simultaneously the most 

spectacular failure) to predetermine the judicial resolution of all legal conflicts and to thereby curtail 

judicial competencies as it consisted of more than 17,000 articles, considered to cover any imaginable
 

legal situation that could arise along with a prohibition against judicial interpretation of the law. 

Subsequent legislation in civil law systems has taken a far more realistic approach and accordingly 

drafted significantly shorter and more abstract codifications. 

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formal in civil law systems as judges generally strictly limit their reasoning to the application of 

the wording of the code to the factual situation presented to them. 

This theoretical model, however, applies differently to criminal law than to “civil” law 

(in the first sense). While in both areas of law courts have to reason on the basis of a code, it is 

only in criminal law that a strict prohibition to apply analogies persists. In matters strictly 

between individuals, in contrast, judges will often draw analogies from statutory provisions to 

fill lacunae and to achieve coherence. By contrast, in most common law systems, “civil” cases 

are still frequently governed by caselaw, with statutes serving to provide specific rules in specific 

areas. 

While the theoretical models described above do generally apply for most civil law 

systems, one notable exception are modern constitutional courts, which act in many aspects more 

like common law courts than classical civil law courts. In Germany, for example, the 

constitutional court possesses the authority to declare void acts of the legislator for incoherence 

with the German constitution, the Grundgesetz, as interpreted by the court. 

2. Specific Aspects of Civil Law 

Sources of Law 

The methodology of civil law systems is based on the completeness of written, formal, 

and hierarchically organized law. Therefore, original sources of law are the constitution and laws 

passed by legislation, with the constitution overriding all contradicting legislation, and the 

legislation enjoying primacy over all acts of the executive branch of governance. 

Most civil law systems accept neither the principle of stare decisis61 nor custom as a 

primary source of law. Most civil law systems do, however, use court decisions and custom to 

greater or lesser degrees as sources of law.62 Moreover, precedents serve a persuasive role in 

most civil law somewhat analogous to the common law consideration of “persuasive authority.” 

In practice, judges are generally expected to follow or at least take into account decisions of 

courts of the higher or the same level. Although in most civil law countries this concept is not a 

legal obligation, judges will not risk having their decision overturned on appeal unless they are 

convinced that the precedent has been incorrectly decided and should be reconsidered. Where 

there is no possibility of appeal, some civil law systems require a court that wants to deviate 

from the decision of a superior court to transfer the case to a higher level.63 In other civil law 

systems, failing to adhere to constant jurisdiction opens at least the possibility of appeal.64 

61 Art.5 of the French Civil Code expressively prohibits the setting of precedents. Only very few civil law 

systems contain the concept of stare decisis, for example the Mexican civil law system. 

62 See MERRYMAN, supra note 49, at 83.
 63 This is the case for administrative courts in Germany if one Senate of the Federal Supreme 

Administrative Court wants to deviate from the decision of another Senate. See Section 11 VwGO. 

64 In Germany, for example, an administrative court needs formally to permit the appeal. But if it deviated 

from decisions of the Federal Supreme Administrative Court or the State’s Supreme Administrative 

Courts, it has to permit the appeal. See Section 124 VwGO. 

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Custom, which is frequently used in common law systems to give shape to both judge-made and 

statute law, can play a role in civil law systems, but only if expressly referred to in statute law.65 

Judges 

The French and German fear of a “government of judges” in the 18th and 19th century, 

and the prevalence of the dogma of the separation of powers, resulted in the power of civil law 

judges being dramatically restricted. With the role of judges limited to applying and “declaring” 

the law rather than creating it, their standing in society was likewise limited. While they certainly 

enjoy usually great respect in general, when compared to their common law brethren, civil law 

judges are not widely known, their judicial opinions are not studied outside the legal profession, 

and courts are viewed as faceless institutions. This may also be related in part to their 

recruitment process, as judges and prosecutors are usually not recruited from the ranks of legal 

practitioners but will be career civil servants that are hired out of law school and may advance 

through the judicial system during their career without ever working in private practice. 

Legal Science and Techniques 

Legal science in the civil law world is primarily the creation of German legal scholars of 

the nineteenth century.66 The concept of legal science rests on the assumption that the subjects of 

law can be seen as natural phenomena from whose study the legal scientist can discover inherent 

principles and relationships.67 Therefore, legal science emphasizes systematic values like general 

definitions, classifications, and abstractions, and uses formal logic as its primary procedure. 

This thinking directly influences the way the rule of law needs to be established in civillaw-descendant host nations. The foundation for a common law regime can consist of a few 

general rules, and the legal system can develop by applying those principles to cases as they 

arise, with the rulings in those cases serving as rules for future ones. In a civil law regime, 

though, a complete set of specific rules (a code) must be established before courts begin hearing 

cases, and the adaptation of the law to new circumstances has to happen through legislative 

rather than judicial action.68 This difference is important, as it influences not only the process 

that rule of law projects must follow, but also the people’s perception of the new or amended law 

in the respective country. 

The Division of Jurisdiction 

Most common law jurisdictions divide their courts between criminal and civil forums. In 

the civil law system, however, the courts are divided into “ordinary” courts (which include civil, 

criminal, and usually commercial courts), administrative courts, and a constitutional court. 

Following the French model, the highest level of the ordinary courts is usually the Supreme 

Court of Cassation. That court normally reviews only the legal determinations of lower courts; 

reconsideration of the facts of the case is usually excluded.69 The Court of Cassation will not 

usually decide a case and issue a judgment. If it decides that the lower court has made a mistake 

65 But see MERRYMAN, supra note 49, at 23 (recognizing the application of custom in many civil law 

countries).

66 See MERRYMAN, supra note 49, at 61.
 67 Id. at 62. 

68 Id. at 67. 

69 Id. at 87. 

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in interpreting the law, it states the correct interpretation and orders the lower court to reconsider 

the case. 

Civil Procedure 

As is typical in common law systems, most civil law systems include separate codes for 

criminal and civil procedure as they have separate civil and criminal courts. 

A typical civil proceeding in civil law countries is, however, divided into three stages: a 

brief preliminary stage, in which the pleadings are submitted and the judge is appointed; an 

evidence-taking stage, in which the judges take evidence; and a decision making stage in which 

the judges hear the arguments and render decisions.70 

In many of the civil law systems, judges put questions to witnesses (after one party has 

offered a witness as a proof) and generally play a much more active role in the proceedings than 

judges in adversarial proceedings, where the majority of questions are put by counsel 

representing the parties, with judges ensuring the compliance with procedural rules.71 

Some civil law systems do have juries in civil cases. Others will ensure popular 

participation through the use of lay judges in a panel of judges. 

Criminal Law and Procedure 

The questions of what constitutes a crime and how criminals should be punished are in 

principle similarly approached in both civil law and common law countries. Both systems share 

many similarities such as the strict separation between investigative and trial authority, the 

presumption of innocence, the right to remain silent or the general right to counsel. However, 

Judge Advocates should be aware of certain structural differences. 

For example, the separation of power ideal of civil law systems described above leads to 

a strict requirement for every crime and every punishment to be embodied in precise language in 

a statute enacted by a legislature prior to the action that is under investigation.72 Likewise, the 

criminal procedure is laid out in specific codifications. In contrast, although uncommon, 

uncodified crimes are not unheard of in common law systems; murder, manslaughter and 

perverting the course of justice have no statutory basis in England and Wales. 

Significant differences in criminal procedure between the two systems stem from the 

separate historical development in Great Britain and continental Europe. These differences have 

in different variations permeated in line with the spread of the respective legal systems 

throughout the world. On an abstract level it can be said that the purpose of the criminal 

procedure for the civil law system is the revealing of the material or absolute truth while the 

common law system considers it sufficient to establish the procedural or relative truth between 

the two parties in dispute. This distinction between the common law’s and the civil law’s 

approach to criminal justice has lost some of its significance due to similarities in the 

developments of the law in European States and the US over the last century. However, the 

70 Id. at 114. 

71 Id. at 115. 

72 In some civil law countries this principle, commonly referred to in Latin as nullum crimen, nulla poena
 

sine lege (no crime, no punishment without (written) law) is even codified in their constitutions; see, e.g., 

NETHERLANDS CONST., art. 16; GERMAN CONST., art. 103 (2). 

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criminal procedure in civil law systems, often described as inquisitorial73 in contrast to the 

common law’s adversarial or accusatorial process, still operates quite differently and still 

attributes somewhat different responsibilities to the actors of the process of criminal justice. 

Many of the procedural characteristics associated with the civil law system of criminal justice 

originate from the French Code of Criminal Procedure of 1808.74 Judge Advocates should, 

however, be aware that while certain commonalties permit to speak of a system of criminal 

procedure typical for civil law systems, most criminal justice systems in the world today will 

combine elements traditionally associated with either the civil law or the common law system 

and no two systems will be alike. 

Pre-Trial Phase 

One of the fundamental differences between the two systems is the operation of the pretrial proceedings and their relevance for the actual trial. In civil law systems, the pre-trial 

investigation is a part of the process of adjudication of criminal cases. The pre-trial phase, which 

will be primarily written and non-public, will often but not necessarily be separated into an 

investigative and an examining phase. During this, a governmental official (usually a judge, a 

judicial magistrate or a prosecutor) oversees or directs the police’s efforts to establish the facts of 

the case and collect evidence of the guilt or innocence of the suspect. Where the investigation is 

not overseen by a judge, a decision by an investigative judge will often be required for certain 

investigative activities such as detention or searches. 

The investigative efforts will eventually result in a complete written record containing all 

relevant evidence. If an examining judge subsequently evaluating the record concludes that a 

crime was committed by the accused, the case will be taken to trial, if not, the accusations will be 

dropped75. The investigative record and the evidence contained therein will often provide the 

basis of the trial judge’s decision76. The common law, in contrast, strictly separates between the 

investigation and the trial and allows only the evidence collected during the trial to be used as a 

basis for the judge’s decision. 

73 The term ‘inquisitorial’ is, however, rarely used in civil law countries themselves as it invokes 

somewhat misleading associations to the criminal justice process preceding the reform efforts outgoing 

from the intellectual and political revolution in continental Europe in the late 18th and early 19th century. 

To most civil lawyers the term “inquisitorial procedure” is associated with a procedure in which a) a 

single person initiates the criminal process, directs the investigation, conducts the trial and takes the 

decision and b) that is secret, solely in writing, uses strictly formalized rules of evidence and permits 

torture to force a defendant into self-incrimination under certain circumstances. They would consider their 

own system rather to be “mixed” or “hybrid” with inquisitorial elements. Likewise common law criminal 

procedure is not strictly “adversarial” given to the role of the police in gathering evidence both for and 

against the defendant.

74 Code d’instruction criminelle. 

75 Some civil law countries, such as Germany and Italy have diminished the role of the examining phase 

and transferred most of its responsibilities to the prosecution. 

76 The practical and legal relevance of the pre-trial results may vary widely between jurisdictions. For 

example, in the German system evidence, in principle, has to be fully introduced into the trial orally; a 

judge cannot base his decision solely on pre-trial records. 

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Accordingly, the pre-trial phase and its actors play a more significant role in the criminal 

process under the civil law system than in most common law systems.77 While arguably the 

investigative phase of the civil law system is more suitable to establish all relevant facts before a 

decision on the proceedings to the trial stage is taken, Judge Advocates should be aware that the 

traditional role of the pre-trial phase in civil law systems historically often meant that pre-trial 

proceedings were kept secret, substantially fewer rights were granted to the defendant, and pretrial proceeding were much more prone to abuse. The pre-trial phase may also delay the 

procedure significantly. In many states, significant developments over the last decades – in 

particular due to international human rights obligations – have been undertaken to remedy these 

potential weaknesses, and in many civil law countries suspects often have similar if not more 

extensive rights and safeguards than in common law systems. But some civil law systems Judge 

Advocates may encounter may not have undergone an equivalent evolution. 

Trial 

As a result of the thoroughness of the pre-trial phase(s), the trials in civil law and in 

common law systems differ significantly. Perhaps the most striking difference is that the 

investigative record is equally available to the defense, the prosecution, and the trial judge in 

advance of trial in civil law systems. The main function of a criminal trial is to present the case 

to the trial judge and, in certain cases, the jury, and to allow the lawyers to present oral 

arguments in public. 

During the trial phase, JAs should be aware of the different role of the judge. In civil law 

systems the judge “owns” the trial, in that he names and examines the witnesses, determines the 

beginning and the end of the trial, and reaches the decision on the basis of his personal 

conviction of the truth after a free evaluation of the evidence at his disposal. As a consequence, 

no cross-examination of witnesses takes place, confessions of a defendant are seen as evidence to 

be freely evaluated by the judge and, in principle, no plea bargaining takes place.78. Contrary to 

common law systems, the defendant can be questioned by the judge but may refuse to answer. 

He cannot be sworn, as that would be seen to conflict with his right not to incriminate himself 

and thus is procedurally protected in lying. The defendant’s refusal to answer, as well as any 

answer given, is taken into account by the court. 

Countries under the civil law system tend to have abolished or greatly reduced the role of 

juries, as bench trials by professional judges alone are often perceived to be more practical as 

well as more objective. However, bench trials occasionally ensure popular participation through 

a tribunal involving lay judges. 

Appeal 

77 The impact of the pre-trial investigation on the actual trial decision may have been what has caused the 

historically widespread perception of the civil law system lacking a presumption of innocence as trials 

initiated on the basis of the pre-trial record were more likely to lead to a conviction. 

78 However, some civil law systems have developed instruments that allow to a limited extent for the 

prosecution to suggest punishments that, if the defendant does not object to their application, permit the 

prosecution to drop the case and avoid trial. Those instruments, as the plea bargaining process does, 

always invoke questions with regard to credibility, equality and transparency of justice and require 

effective remedies and checks to ensure that consent to a punishment without trial is conscious and real. 

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Civil law systems tend to offer more possibilities of appealing a decision, as the notion of 

appeal is seen as a natural instrument of hierarchical court control and generally does not involve 

the challenge of overturning a jury decision. However, Judge Advocates should be aware that, 

unlike in common law systems, governmental appeals requesting a reversal of an acquittal or 

harsher punishment are often permitted. 

Civil Law Procedural Changes Can Drive Assessments 

Civil law systems often operate through a variety of investigative and trial 

chambers that may be located throughout its jurisdiction. It would be 

counterproductive to undertake reform in those courts without first understanding 

how civil law procedure affects how courts are organized. In order to learn about 

the locations of the various chambers and the types of cases that are heard before 

them, their physical location, and key personnel, you must first learn about how 

the prevailing legal system requires courts and court officers to be organized. 

3. Recommended Readings 

John Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition (3d ed. 2007). 

James G. Apple & Robert P. Deyling, A Primer on the Civil Law System, (Federal Judicial 

Center) available at 

http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf 

Mirrielle Delmas-Marty & J.R. Spencer [ed.], European Criminal Procedures (2005). 

C. Religious Legal Systems and Sharia Law 

The main religious legal systems of the world are Hindu law, Islamic law and Jewish law, 

but this Handbook will focus on Islamic law based on its major impact on secular legal systems 

in the world and the location of today’s ongoing stability operations. One of the fundamental 

features of modern Islamic movements is their call to restore the Sharia,79 which, as 

demonstrated by the Taliban’s80 rule in Afghanistan, can affect world politics. 

Islamic Law Systems and the Sharia 

In the 6th century, when the prophet Muhammad was born in Mecca, there were many 

different legal systems prevalent in the Near and Middle East. Justinian’s Digest had been 

completed three decades before, and the Jerusalem Talmud a century or two before. These 

sources of law were well known by Muslim jurists. Although the influence of these legal 

79 See WAEL B. HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW 1 (2005). 

80 On the Taliban, see THE MIDDLE EAST AND ISLAMIC WORLD READER 243 (Marvin E. Gettleman and 

Stuart Schaar eds., 2003). 

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traditions on Islamic law and legal science has been the source of controversy, the emergence of 

Islam meant a turning point in the Middle East’s legal tradition.81 

Muslims believe that God revealed his teaching to Muhammad, word for word, by 

revelation over a period of twenty-three years. These written revelations are contained in the 

Quran. The Quran does not contain much law in the secular sense; only around 500 of the 

approximately 6,000 verses of the Quran pertain to law.82 Further sources of Islamic law were 

later developed, each dependent on its predecessor, and each ultimately on the Quran. 

The totality of Islamic law is known as the “Sharia,” which means the path to follow. The 

substance of Sharia is found in the corpus of fiqh (Islamic jurisprudence), which is the work of 

the Muslim legal scholars or jurists to interpret the revealed sources of law (the Quran and the 

Sunna). The Sharia includes not only human relations, such as civil and criminal law, but also 

“religious” obligations such as etiquette, dietary, and hygienic rules. 

The Sharia is composed of four sources, although the identity of those four sources is a 

matter of some dispute between Sunni and Shiite Muslims.83 

Along with the Quran, the Sunna, the actions and sayings of the Prophet as a clear 

manifestation of God’s will, constitutes the second of the two primary sources of Islamic law. It 

was believed that the actions and sayings of the Prophet reflected the general provisions of the 

Quran, and also gave guidance on matters on which the Quran was silent.84 The content of the 

Sunna is found in the form of hadith,85 statements which have been passed on in a continuous 

and reliable chain of communication from the Prophet himself. Any single hadith contains two 

parts: the normative statement and the chain (isnad) of the tradition which can be traced back to 

the Prophet (or, for Shiites, to an Imam).86 Much early Islamic scholarship was devoted to 

determining the authenticity of the many reported hadith. Eventually the Sunnis settled on six socalled “canonical” or authoritative collections of hadith, while Shiites have their own collections 

based on the hadith of both the Prophet and the Imams.87 

Another source of law is ijma, which consists of a doctrinal consensus on specific issues 

among all the legal scholars). These may include issues such as the direction of daily prayer. 

Finally, the Sunnis use various forms of qiyas, or analogical deduction,88 to determine the correct 

legal ruling on matters for which there is no specific rule in the primary sources or for which 

there is no ijma. Shiites, however, use a broader range of logical analysis to apply to new legal 

problems, subsumed under the concept of aql, or intellectual reasoning. 

The consequence of Islamic law being derived from the two primary sources of the 

Quran and the Sunna is that violating Islamic law is tantamount to violating God’s instruction. 

81 There is some debate whether Muslim jurists chose to ignore existing law or if Islamic law is a pastiche 

of the law existing at the time. See H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 204 (2000). 

82 Id. at 172. 

83 HALLAQ, supra note 79, at 119. 

84 ELIE ELHADJ, THE ISLAMIC SHIELD 43 (2006). 

85 Hadith was originally not synonymous with the verbal expression of the Sunna. HALLAQ, supra note 

79, at 71. 

86 Id. at 103. 

87 See ELHADJ, supra note 84, at 46. 

88 See HALLAQ, supra note 79, at 115, 129. 

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Law and religion are inseparably connected in the Islamic tradition. That connection culminates 

in the Islamic doctrines of heresy and apostasy, which in their strictest application suggest that 

every unbeliever (kafir) should be fought, as should anyone wishing to leave the Islamic 

community.89 Islamic history at the time of the Prophet and thereafter does contain instances of 

pacts of protection between Muslims and non-Muslims, providing the non-Muslims are People 

of the Book (Jews and Christians), called “dhimmis,” a special status. The Ottomans, after they 

had conquered Constantinople, granted local autonomy to protected communities of Christians 

and Jews. A dhimmi had generally more rights than other non-Muslim subjects, but fewer rights 

than Muslim subjects. 

From the Western perspective, questions of constitutionalism, human rights and equality 

are central to legal thought. From the Islamic perspective, it is the recognition of God’s word that 

drives the legal system.90 These two approaches can often be difficult to reconcile in a single 

legal system. Consequently, Western countries conducting rule of law operations in Islamic 

countries must be particularly conscious of problems of imposing a Western legal point of view, 

since doing so is likely to create substantial resistance and will prevent the legal system from 

being internalized by a Muslim populace. Unlike the set of highly specific religious Christian 

laws, which are separate from state law, Islamic law is very broad and is therefore easily violated 

by an insensitively designed secular system. 

Qadi Justice and Mufti Learning 

The Qadi is a judge in the classical Islamic legal system. Classical Sharia dispute 

resolution is a kind of “law finding trial” not connected with the simple application of preexisting norms, or simple subsumption of facts under norms. The dispute resolution is a dynamic 

process, one in which all cases may be seen as different and particular. The “law” of each case is 

thus different from the law of every other case. The parties are seen as partners of the Qadi in the 

law-seeking process, which gives the procedure some similarities to mediation. The Qadi does 

not give written reasons for his decision, and cases are not reported. Precedent, therefore, is 

lacking. 

The Mufti (jurisconsult) plays a role similar to the scholar under civil law systems. 

Possessing immensely useful knowledge and great analytical ability, the mufti comes to be the 

most effective means of bringing law to bear on highly particular cases. The opinion of the 

Mufti, the fatwa, is often filed in court. 

It should be understood that even in the classical era, Sharia courts, along with qadis, 

were not the only legal systems operating in Muslim areas. The state had its own courts and 

procedures to deal with matters that fell outside the scope of the Sharia, although they were 

always subordinate to the Sharia. 

Substantive Sharia 

Family law in the Sharia is profoundly marked by the Arabic chthonic law which 

Muhammad encountered, and by his reaction to it. While it is the prevailing opinion that the 

89 There are more modest variations of these concepts stating that unbelievers have only to be killed if 

they denied essential elements of Islam and that only the formal conversion to another religion has to be 

sanctioned. See GLENN, supra note 81, at 207. 

90 See id. at 208. 

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Islamic law improved the status of women compared with the regulations of pre-Islamic law,91 

the principle of equality of men and women as represented by Western law systems is not 

dominant in Islamic law. The Quran contains some verses that have been used to suggest that 

men and women are not equal.92 

Gender Equality and Sharia 

Gender equality is likely to be an issue in any host nation in which Sharia is a 

strong legal influence. Not even the recent Iraqi constitution clearly resolves the 

potential conflict between Sharia and gender equality. While Article 14 of the 

Iraqi constitution states “Iraqis are equal before the law without discrimination 

based on gender, race, ethnicity ... .” Article 2 states “No law that contradicts the 

established provisions of Islam may be established.” The constitution may 

prohibit discrimination, but any ordinary law based on the principle of equality 

between men and women may contradict Islamic law. The contradiction at the 

very least opens the door to arbitrary decisions by Islamic clerics and judges in 

Iraq. 

Marriage is potentially polygamous, and divorce has historically been executed by the 

husband’s pronouncement. While before Islam divorce was complete upon its declaration by a 

husband, the Sharia introduced a waiting period imposed on divorced women. Reform of family 

law is a high priority among the strong and growing number of Muslim feminist scholars. 

Islamic law generally has granted women substantial rights and financial security. A 

daughter was granted a share of inheritance, and a woman could keep all property that she 

brought into a marriage or that she acquired during marriage.93 Shiite law generally provides 

greater rights for women within this field than does Sunni law. 

Civil and commercial law is influenced by the Quran, which generally prohibits 

speculation and the unfair distribution of risks. Thus, unlike in Western societies in which debt is 

fundamentally distinguished from equity by the allocation of risk, in Islamic countries, banks 

frequently assume a portion of the risk. As H. Patrick Glenn explains: 

[B]anks...cannot simply charge interest on loans but must acquire goods or take 

equity in the financially-supported enterprise, sharing the risk of loss and the 

possibility of profit. There are highly developed commercial vehicles for doing 

so, and here the law of partnership ... assumes crucial importance. Three forms of 

partnership (with banks) are most frequent, all with names perilously close to one 

another. For financing of sales, absent interest-bearing loans, there is murabaha, 

where the bank acquires property first and the sells to the eventual purchaser, at a 

markup. For general partnership, with both partners pooling resources (e.g. bank 

and an entrepreneur) and management stipulated for both or all, there is 

91 Although some writers proclaim that this is only a rumor put out by Islamic scholars. See ELHADJ, 

supra note 84, at 61. 

92 E.g., THE QURAN 2:228: “Women also have recognized rights as men have, though men have an edge 

over them;” id. 4:34: “Men are the masters (protectors, maintainers) over women ... . The righteous 

women are devoutly obedient ... .” 

93 HALLAQ, supra note 79, at 23. 

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musharaka, and even “diminishing musharaka,” where the bank’s share is reimbursed over time. Finally, for pure investment; there is mudaraba, resembling a 

musharak, but in which only one partner provides the funds and the other 

manages the investment.94 

Sunnis and Shiites 

The difference between Sunni and Shiite is a matter of tremendous geopolitical 

importance, but it is frequently poorly understood by Westerners. Although a complete treatment 

of the issue is beyond the scope of this Handbook, it is helpful for rule of law practitioners to 

understand the distinction, especially as is applies to law. 

After Muhammad’s death, Muslims discussed who should become the rightful caliph or 

Imam (leader of the community of believers). 

Sunni Muslims, who today represent approximately 85% of the world’s 1.25 billion 

Muslims95 (and are the majority in most Islamic countries except Iran, Iraq, Bahrain, Azerbaijan, 

Yemen, Oman, and Lebanon), eventually came to accept the hereditary succession for leaders of 

the state (caliphs). However, they also stressed the need for the caliphs to protect Muslim realms 

and to sustain the Islamic faith within those realms. 

Shiites96 were of the view that Muhammad had designated his cousin and son-in-law Ali 

as his rightful successor, and that only Ali’s descendants (the five, seven, or twelve Shiite 

Imams, depending on the branch of Shiism) have the legitimacy to become the leader of the 

Muslim community.97 

This originally political dispute has had a direct impact on Sunni and Shiite legal and 

political thought, resulting, for instance, in different Sunni and Shiite Hadith collections. Shiite 

Muslims reject the first three caliphs as usurpers of the caliphate from Ali, the husband of the 

Prophet’s daughter Fatima, and later the fourth caliph. Shiite Muslims consider that the Prophet’s 

companions who supported the intervening three caliphs are not reliable transmitters of 

tradition.98 Sunni collections, however, refer to the first three caliphs and their supporters, as well 

as to Ali. 

A further difference between Sunnis and Shiites is that the Hadith collections of the 

Sunnis record exclusively sayings and actions of the Prophet, while Shiites include the sayings 

and actions of the twelve (for the majority of Shiites) infallible Imams. 

Another important difference is that Sunnis do not accept broad-based forms of 

intellectual reasoning as a source of law. That is why for them methods of interpreting the Quran 

and the Sunna to form new opinions, apart from fairly limited reasoning by analogy, are 

unacceptable. Shiites, on the other hand, accept a wider scope of intellectual reasoning (aql) in 

interpreting the sources of the law. A Shiite legal scholar (called a mujtahid or faqih, among the 

most learned of whom may be called ayatollah or, at the top level, marja at-taqlid (“source of 

94 GLENN, supra note 81, at 183. 

95 ELHADJ, supra note 84, at 42. 

96 Shiites means “Ali’s partisans”. 

97 GLENN, supra note 81, at 197. 

98 ELHADJ, supra note 84, at 46. 

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emulation”) interprets the Quran and the Hadith. He is freer than his Sunni counterparts to 

change his rulings and opinions over time and to evolve religious law with the modern times.99 

Enmity between Sunni and Shiite Muslims has erupted periodically since the formative 

years of Islam, though Sunnis and Shiites have also often coexisted peacefully in many places. 

Today, some “radical” Sunni traditionalists consider Shiism to be heretical, as exemplified by the 

late Iraqi Sunni Jihadist Abu Musab Al-Zarqawi. According to Al-Zarqawi, Shiism is “the 

lurking snake, the crafty and malicious scorpion, the spying enemy, and the penetrating venom 

... Shiism is a religion that has nothing in common with Islam.”100 Referring to the Mongols’ 

destruction of Baghdad in 1258 and the Christian Crusades in the 12th and 13th century, such 

people believe that Shiites collaborated with both the Mongols and the Crusaders. 

Some Sunnis today discriminate against Shiites, though much of the discrimination has 

economic rather than religious or legal roots. 

Jihad 

The word jihad does not mean “war” but rather “effort” or “striving”. It means the 

obligation to spread the word of the Prophet and to defend the faith against outside aggression.101 

Today, those often referred to as “jihadists” try to justify their violent actions with several 

Quranic verses such as “Against them make ready your strength to the utmost, that you may 

strike terror into the enemies of God and your enemies...” (Verse 8:60) and “Fight those who 

believe not in God...” (Verse 9:29). However, jihad itself does not mean to kill unbelievers, but 

together with the Islamic doctrine of heresy it can adopt that meaning. Public schools and 

colleges in Islamic countries still teach jihad as a legal way of God and as the summit of 

Islam.102 Some radical Islamic movements proclaim violent jihad as an obligation for every 

Muslim,103 while many other Muslims stress its emphasis on personal striving to live according 

to the Sharia. 

D. Combined Systems 

In addition to civil law, common law, and religious systems, there are also mixed legal 

systems in much of the world. 

The family of mixed law systems consists mainly of two different mixtures of legal 

systems: the mixture of civil and common law systems and the mixture of civil law systems and 

religious legal systems. 

Systems representing a mixture of civil and common law systems include Botswana, 

Lesotho, the US State of Louisiana, Namibia, the Philippines, Puerto Rico, Quebec, Scotland, 

99 Id. at 135. 

100 Id. at 145. 

101 GLENN, supra note 81, at 216. 

102 In Osama Bin Laden’s native Saudi Arabia, for example, even after September 11, 2001, the public 

schools’ religious curriculums continue to propagate an ideology of hate toward the “unbeliever” and 

contain the religious obligation to fight against unbelievers in the way of jihad. See CENTER FOR 

RELIGIOUS FREEDOM OF FREEDOM HOUSE, SAUDI ARABIA’S CURRICULUM OF INTOLERANCE 13 (2006). 

103 See Charter of the Islamic Resistance Movement of Palestine (Hamas), 1988.
 

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South Africa, Sri Lanka, Swaziland, and Zimbabwe.104 The European Union, too, is something 

of a mixed common/civil system. Civil/religious mixed systems frequently involve Islamic law, 

including Algeria, Egypt, Indonesia, Iraq, and Syria.105 Iran claims to have an exclusively Shariabased legal system, but in practice it too is a mixed civil/Islamic system. 

Particularly relevant for the rule of law practitioner is that mixed systems are generally 

not organically developed legal systems. Usually, mixed legal systems are created when one 

culture, imposes its legal system on another culture, usually by conquest.106 Thus, the presence of 

a mixed system is a likely indication of some tension between the populace’s underlying norms 

and the legal system they live under. Frequently, however, the foreign legal system will have 

been internalized over time (e.g., in the case of India), rendering it legitimate in the eyes of the 

populace. 

E. Recognized Alternatives to the Court System 

Although lawyers tend to focus on courts, many other dispute resolution mechanisms are 

available for use in conducting rule of law operations. Some of them, like mediation and 

arbitration, have become part of the legal mainstream in developed countries, while others, 

including traditional clan-oriented remedies, have strong bases in some portions of the 

developing world. Others, like truth and reconciliation commissions and property claims 

commissions, are specific to the post-conflict environment. But whatever the environment, Judge 

Advocates should be aware of and consider the use of less traditionally legal dispute resolution 

mechanisms for their ability to engender legitimacy and avoid some of the problems likely to 

face attempts to establish a novel legal system. 

1. Mediation 

Mediation involves the participation of a third party in an attempt to resolve a dispute 

between two parties. Formal definitions of the process vary from simple efforts of encouraging 

to the two parties to resume negotiation to more active approaches bordering on conciliation, 

where the mediator is expected to investigate the facts of the dispute and advance his own 

solutions. 

Mediation is characterized by the consent of the parties to the process and the nonbinding nature of the proposed solutions. Thus, mediation can only be as effective as the parties 

wish it to be. It relies on the parties’ willingness to make concessions but the fact that 

communication is ongoing often assists in promoting an atmosphere of resolution. Mediation has 

the distinct advantage over more formal methods of dispute resolution of allowing the parties to 

retain control of the dispute. 

Non-governmental organizations are often willing to mediate over issues such as 

treatment of detainees. The ICRC, for instance, traditionally avoids involvement in any form of 

104 See William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 

LA. L. REV. 677, 679 (2000). 

105 Id. 106 Id. at 725. 

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political dispute in order to preserve its neutrality, however, it will often intervene or volunteer to 

mediate over questions involving the treatment of detainees raising humanitarian questions. 

Judge Advocates may not be the best placed person to act as the mediator given their 

seeming lack of independence and position within the military. But Judge Advocates may be in a 

position to recommend mediation and to use their skills to appoint the correct person or persons 

to act as mediator. 

2. Arbitration 

As opposed to mediation, arbitration provides for a solution that is both binding and 

enforceable.107 Arbitration allows for more a flexible and tailored solution to dispute resolution 

and traditionally tends to be limited in its application to commercial disputes, both domestic and 

international. 

Although arbitral awards are binding, the arbitration process itself is entirely defined by 

the parties. As such, there is no one method or practice of arbitration. Standing arbitral bodies108 

have detailed rules of procedure that are often adopted by parties in clauses dealing with dispute 

resolution. Historically, arbitration decisions were provided without reasoning, but today, most if 

not all arbitral awards come with a full written decision. 

The flexibility of arbitration allows for many perceived advantages over traditional forms 

of litigation. The parties are free to agree over what laws or procedures the panel will use in 

resolving the dispute, to ensure confidentiality (important in sensitive commercial matters) and 

to allow for finality by preventing further appeals from the decision of the arbitrators. 

When assessing the capacity of civil courts in any theater of operations, Judge Advocates 

should not underestimate the value of arbitration and its ability to reduce the burden on the 

domestic judicial system. Many national and regional arbitral bodies exist to resolve such 

disputes. They may have the advantage of maintaining the support of the local population as a 

locally/regionally based solution to any problem while maintain independence from (and 

impartiality toward) a contested government. 

3. Other Traditional Remedies 

Dispute resolution of non judicial or quasi judicial practice has long been practiced in 

many societies. Moreover, it is a resource which has often been overlooked in the recent UN 

sanctioned attempts to reconstruct effective and efficient judicial systems in former conflict 

109 zones.

107 Enforceability of arbitral awards outside the local nation was created by the Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2417, 330 U.N.T.S. 

38. 

108 For example the London Court of International Arbitration, the American Arbitration Association and 

The Middle East Center for International Commercial Law. 

109 In East Timor, for instance, criticism was made of the United Nations Transitional Administration in 

East Timor’s (UNTAET) failure to promote and develop customary legal structures. An East Timorese 

suggestion to incorporate such traditional methods into the new judicial structure was not acted upon, and 

may have been a lost opportunity to provide for dispute resolution at an appropriate level and an effective 

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Dispute resolution through traditional methods is particularly varied, making any 

systematic approach to it impossible. Although it can be particularly effective in restoring the 

rule of law, because it will frequently lack the formal structure that makes many legal systems 

transparent, it also presents risk of arbitrary or even discriminatory conduct by appointed 

authorities. Judge Advocates are wise to consider traditional dispute resolution methods, but they 

must be approached with particular caution and a very strong awareness of the social and cultural 

context in which they will operate. 

Traditional Remedies in Sierra Leone 

Traditional remedies are often characterized as local forms of dispute resolution 

headed by a village chief or tribal leader. In Sierra Leone, for example, some 149 

chiefdoms make up the lowest tier of government in the country. Each chiefdom 

benefits from an elected leader and an elected council of elders from local 

villages. Moreover, the chiefdoms serve as the basic jurisdictional area for the 

local or customary courts. These courts cover 80% of the cases in the provinces 

and provide an effective, efficient, and perhaps most importantly, local method of 

dispute resolution. The Sierra Leonean customary courts deal with largely minor 

land, family or petty trade issues, they also have jurisdiction to deal with minor 

crimes of violence. Appeal from the decisions of the customary courts lies to the 

Magistrates court. While such systems do not offer a panacea to all problems they 

are often well supported and trusted by the local population. 

4. Truth and Reconciliation Commissions 

Although not a part of the regular legal dispute resolution process, Truth and 

Reconciliation Commissions (TRC) have been used with increasing frequency in post-conflict 

settings as a method for helping society move past a period of past governmental abuses as part 

of the restoration of the rule of law. The concepts underlying the process of TRCs are by no 

means new. Society has regularly adopted such practices and procedures in an attempt to come to 

terms with dark chapters of their history. After the de-nazification of Germany, the process of 

Vergangenheitsbewältigung allowed for individuals to admit the horrors of the former regime, 

attempting to remedy as far as possible the wrongs while attempting to move on from the past. 

Since the mid-1970s, an unprecedented number of states have attempted the transition to 

democracy. One of the significant issues many of these states have had to deal with is how to 

induce different groups to peacefully co-exist after years of conflict. Particularly since the early 

1990s, the international human rights community has advocated TRCs as an important part of the 

healing process. Indeed, they have been suggested as part of the peace process of virtually every 

international or internal conflict that has come to an end since.110 

Long-term conflicts often involve such widespread criminality of a heinous nature that 

the domestic legal systems would become overburdened by any attempt to bring to justice those 

method of reducing the burden on a nascent legal system. See Kings College London – International 

Policy Institute, East Timor Post Operation Report, http://www.ipi.sspp.kcl.ac.uk/rep006. 

110 Twenty-seven nations have adopted such an approach since 1970. On TRCs generally, see the US 

Institute of Peace web site, which has an extensive library on TRCs, 

http://www.usip.org/library/trush.html. 

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who participated in such activity. That said, TRCs do not provide impunity for all. Those deemed 

to be responsible for organizing or orchestrating the violence are frequently tried while the vast 

majority of others may be granted amnesties if they participate in TRC process and thereby 

accept their actions. The balance between individual criminal responsibility and national 

reconciliation is a fine one that is not easily achieved. 

The Role of Truth and Reconciliation 

One form of truth and reconciliation was undertaken by the Special 

Representative to the Secretary General (SRSG) in Afghanistan. Complaints have 

been made of serious crimes committed by the Northern Alliance during the 

military campaign in which the Taliban regime was removed from power. These 

serious allegations possibly implicated senior members of the current regime. The 

unwillingness of the UN to conduct a thorough investigation into such allegations 

was based on jurisdictional concerns but was heavily swayed by the risk of 

undermining the current transitional administration. The SRSG concluded, on 

balance: “(O)ur responsibility to the living has taken precedence over justice to 

the dead.”111 

In an attempt to promote the political stability, investigations into allegations of 

previous offenses were limited. The concept, while at first blush may seem 

abhorrent to most legal officers, is not at great variance with the TRCs established 

in several nations in an attempt to bring dispute and friction to an end. 

TRCs are far from a panacea for the post-conflict society. It can take TRC many years to 

hear evidence from a wide number of witnesses before typically producing written reports. Some 

feel that the publication of such reports, many years after events, tend not to serve to heal 

wounds, rather re-open them. 

5. Property Claims Commissions 

Like TRCs, property claims commissions are another exceptional form of dispute 

resolution in post-conflict societies. If large portions of land and property were expropriated 

from individuals in the course of a conflict, property claims commissions can be an important 

process in promoting equality amongst citizens who suffered. 

Such a body was set up by the CPA112 in Iraq and has as of October 2005 distributed $36 

million to those who were wronged. The commission is quasi legal in nature, but, while not a 

court of law per se, it can be a powerful tool in rectifying past injustices and can do so in a way 

that is consistent with rule of law values. 

111 United Nations Special Representative of the Secretary General, Jean Arnault. 

112 See Coalition Provisional Authority Regulation 8, as amended by Regulation 12. http://www.cpairaq.org/regulations/20040114_CPAREG_8_Property_Claims_Commission_and_Appendix__.pdf and 

http://www.cpairaq.org/regulations/20040624_CPAREG_12_Iraq_Property_Claims_Commission_with_Annex_A_and_
 

B.pdf. 

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F. The Implications of Gender for Rule of Law Programs 

Gender issues can play an important role in the rule of law and consequently in rule of 

law operations. 

First, measures to provide for the protection of basic human rights and fundamental 

freedoms will likely include some provisions to eliminate discrimination against women. Women 

and women’s issues are often marginalized in societies subject to US rule of law programs and, 

therefore, likely to require some degree of reform in order to bring the host nation law into line 

with basic international human rights norms, as discussed in chapters II and IV. Such substantive 

rights are a matter of considerable cultural sensitivity and are likely to be addressed by senior 

civilian leaders, leaving little room for Judge Advocates to engage in substantive gender 

discrimination reform. 

But there is a second way in which Judge Advocates may become directly involved in 

gender-related issues in the conduct of rule of law operations. Importantly, Judge Advocates 

should not overlook the role of women in the establishment of the rule of law. Although 

women’s inclusion and equal participation can be a source of resistance in some cultures, the 

participation of women in government and the reconstruction process can also be a tremendous 

opportunity. In many post-conflict societies, the ranks of qualified men will be dramatically 

limited, either through long-running warfare or by their having had principal roles in a previous, 

illegitimate regime. Moreover, it is difficult to reverse longstanding discrimination against 

women and other human rights violations without the participation of many previously 

disenfranchised segments of society in the establishment and development of a legitimate and 

capable government, including women.113 The role of women as key players in sustaining viable 

peace in many post-conflict societies is well documented. Where the legal and social framework 

of the country has allowed women the opportunity to participate fully, women have sustained 

critical sectors such as agriculture, education, and local commerce.114 Moreover, as household 

leaders, women are frequently opinion-shapers, and therefore need to be specifically targeted in 

efforts to establish the legitimacy of the host nation’s legal system. 

In 2000, Security Council Resolution 1325 put women onto the international agenda for 

peacemaking, peace-keeping, and peace-building for the first time.115 It called for attention to be 

given to two separate concepts: gender balance in negotiation processes for societal 

113 See Robert Orr, Governing When Chaos Rules: Enhancing Governance and Participation, 25 WASH. 

Q. 139 (2002). According to Winie Byanyima, director of the United Nations Development Program’s 

gender team, “We have overwhelming evidence from almost all the developing regions of the world that 

[investment in] women make better economics.” Anthony Faiola, Women Rise in Rwanda’s Economic 

Revival, WASH. POST, May 16, 2008, at A01. 114 See Faiola, supra note 113 (citing examples from Rwanda, Bangladesh, India, and Brazil). 

115 See, e.g., UN Security Council Resolution 1325 (2000). (“Reaffirming the important role of women in 

the prevention and resolution of conflicts and in peace-building, and stressing the importance of their 

equal participation and full involvement in all efforts for the maintenance and promotion of peace and 

security, and the need to increase their role in decision-making with regard to conflict prevention and 

resolution”). 

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reconstruction116 and gender mainstreaming in the terms of the agreements reached and their 

implementation. The latter concept – gender mainstreaming117 – can be particularly useful in the 

development and implementation of rule of law operations. 

In order to permit practical involvement by women in rule of law and other development 

programs, proactive steps may be needed at the outset to compensate for entrenched gender 

disparities in rights, education, and resources.118 Activities should aim at leveling the playing 

field to redress gross inequities.119 

116 Gender balance is the inclusion of both women and men at all stages and in all roles within such 

processes, for example as members of the parties' negotiating teams, as mediators, as members of contact 

groups or as "friends of the Secretary-General" assisting in the process, as advisors or consultants, and in 

any civilian or military implementing body. See Christine Chinkin, Gender, Human Rights, and Peace 

Agreements, 18 OHIO ST. J. ON DISP. RESOL. 867 (2003). 

117 Gender mainstreaming is: 

the process of assessing the implications for women and men of any planned action, 

including legislation, policies or programmes, in any area and at all levels. It is a strategy 

for making women's as well as men's concerns and experiences an integral dimension in 

the design, implementation, monitoring and evaluation of policies and programmes in all 

political, economic and social spheres so that women and men benefit equally and 

inequality is not perpetuated. 

Christine Chinkin & Florence Butegwa, GENDER MAINSTREAMING IN LEGAL AND CONSTITUTIONAL 

AFFAIRS 12 (2001). 118 Elaine Zuckerman & Marcia Greenberg, The Gender Dimensions of Post-Conflict Reconstruction: An 

Analytical Framework for Policymakers,” 12 GENDER AND DEVT. 70 (2004), available at 

http://dx.doi.org/10.1080/13552070412331332330 (last visited August 12, 2008). 

119 The Geneva Centre for the Democratic Control of Armed Forces has a series of assessment tools 

devoted to gender issues in security sector reform, available at 

http://www.dcaf.ch/publications/kms/series_gssr-toolkit.cfm?nav1=5&nav2=6. 

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Increasing Women’s Political Participation: 

Quotas or Capacity-Building 

Many post-conflict countries have taken steps to increase women’s political 

participation. In order to redress deficits and disparities that have occurred in 

Afghanistan because of the previous regime’s fundamentalist religious culture, a 

quota was adopted allowing women to occupy at least 25 per cent of lower 

parliament seats. This resulted from pressure by Afghan women’s groups and the 

international community. The dominant parties in South Africa (ANC), 

Mozambique (Frelimo), and Namibia (Swapo) established women’s quotas on 

candidate lists. Other regimes have focused on women’s ability to run for office 

and hold office effectively. When the national council in Timor Leste, rejected 

quotas, women’s networks sought UN funding to train women to compete 

effectively in elections. Women now comprise 26 per cent of elected constituent 

assembly members. In Rwanda, where women comprise over 60 per cent of the 

post-genocide population, women captured 49 per cent of parliamentary seats in 

fall 2003 elections. Rwanda now has the largest female parliamentary 

representation worldwide.120 

Because so much of discrimination is de facto rather than de jure, effects-oriented metrics 

are critical to any rule of law program intended to enable women to participate in the political 

process. Legal reform alone may lead to little change in participation by women if the ability to 

exercise their legal and political rights is limited by societal or cultural obstacles. Activities 

could encourage, for example: the creation of gender focal points in key ministries; capacity 

building for women candidates, judges, educators, and other professionals; activities addressing 

the specific societal or cultural obstacles hindering the full participation and empowerment of 

women,

121 such as their equal right to own property or to receive an inheritance; programs 

addressing violence against women by state security forces, as well as by private actors; or media 

initiatives that highlight women’s contributions to society, emphasize human rights, and present 

role models for women.122 

120 Id. 121 Id. 122 For links to reports describing other activities taken in various countries and regions of the world to 

promote women’s roles in advancing peace and security, see www.peacewomen.org (last visited Sept. 4, 

2009). 

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Rule of Law Handbook 

Enhancing Economic Development through Female Empowerment: Rwanda 

In the 14 years since the genocide, when 800,000 people died during three months 

of violence, Rwanda has become perhaps the world’s leading example of how 

empowering women can fundamentally transform post-conflict economies and 

fight the cycle of poverty. Reports indicate that women showed more willingness 

than men to embrace new farming techniques aimed at improving quality and 

profit. Moreover, while women make up the majority of borrowers, only one out 

of five defaulters is a woman. This success never would have happened had 

reforms not been passed in Rwanda after the genocide enhancing the legal status 

of women, which, for example, finally enabled women to inherit property. Today, 

forty-one percent of Rwandan businesses are owned by women.123 

Focus may also be needed on incorporating or promoting gender initiatives within the 

security forces. For example, even if a country’s legal system prohibits violence against women, 

the legal system may inadvertently discourage women or girls from reporting such violence. 

Activities could include gender-sensitive training for law enforcement agencies; special units 

staffed by women trained to deal with such crimes; increasing the number of female law 

enforcement officers; providing temporary shelter; or creating victim-friendly counseling and 

courts. 

In societies where the armed forces have a history of engaging in sexual violence against 

women and children or recruitment of child soldiers, additional programs should be considered 

to combat impunity and tolerance for such crimes. Activities to address such issues could focus 

on promoting changes to the organizational culture within the security forces wherein 

commanders prevent, identify, halt and punish sexual and other exploitation; the development of 

selection guidelines in order to prevent the worst offenders from staying or integrating into the 

new armed forces; or providing explicit guidelines on what is and what is not permitted 

behavior.124 Community reconciliation and trust-building measures could also be carried out to 

address legacies of fear and to build popular confidence in the security forces. 

123 Faiola, supra note 113. 

124 Training for Peace Support Operations (PSO) can provide an entry point to raise issues such as sexual 

exploitation, using the UN Code of Conduct for Blue Helmets. 

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Examples - Responsive Policing Initiatives 

Law enforcement processes can often be traumatizing for victims, making them 

reluctant to come forward and report crimes. In an increasing number of reform 

efforts, special police units are created to assist the victims and witnesses of 

crime. In Namibia, a Women and Child Protection Unit was created within the 

police force to address the problem of domestic violence. It includes counseling 

by social workers and the provision of temporary shelter. A more victim-friendly 

court system was established as the cross-examination process was found to be 

traumatizing to victims. They are now able to testify behind a one-way mirror so 

they do not have to see their assailant while testifying.125 

In Sierra Leone, female victims had also been reluctant to come forward and seek 

help from police. The UN Mission in Sierra Leone helped create a Family Support 

Unit within the police department that included the presence of female police 

officers. This more compassionate environment for victims to report crimes 

resulted in 3,000 reports of sexual and physical violence in 2003-- 90% of these 

victims were women and girls.126 

In Nicaragua, the GTZ project “Combating Gender-Specific Violence” partnered 

with a GTZ program that advised the Nicaraguan police on the “Roles and Rights 

of Women in the Nicaraguan Police.” A manual on Gender specific violence and 

public safety was developed in cooperation with the Security Sector Reform 

Advisory Program for targeted groups within the police and a media recruitment 

campaign was launched to increase the number of female officers. The project 

included a four-week regional course on “multipliers- training in security and 

gender” for women police officers from Central America and the Caribbean This 

program approach was so well-received it was adopted by the Commission of 

Central American and Caribbean Police Chiefs to integrate gender equality into 

their institutional reform efforts in the region.127 

G. Civil Society 

Civil society can be defined as the political space between the individual and the 

government that is occupied by NGOs, social groups, associations, and other social actors, such 

as non-profit and for-profit service providers. Civil society organizations (CSOs) include 

organized NGOs, community-based organizations, faith groups, professional and interest groups 

such as trade unions, the media, private business companies, bar associations, human rights 

groups, universities, and independent policy think tanks. 

The involvement of civil society in rule of law programs is important for wider and more 

inclusive local involvement in rule of law operations and, ultimately, their sustainability. CSOs 

125 Iivula-Ithana, Peace Needs Women, and Women Need Justice, New York Gender Justice Conference: 

UNIFEM/ILAC, 2004.

126 “Policing with Compassion, Sierra Leone,” Women as Partners in Peace and Security 

www.un.org/womenwatch/osagi/resoures. 

127 http://www.gtz.de/en. 

121 Chapter V - Context 
Rule of Law Handbook 

have an important role to play owing to their potential to give voice to the interests and concerns 

of the wider population, to encourage reforms that are responsive to popular security and justice 

needs, and to actually perform the work of reconstruction and social support that leads to 

increased stability and recognition of the rule of law. 

Too often, rule of law programs are focused primarily on government and fail to 

adequately engage civil society. While short-term progress may be possible by working solely 

with state institutions, longer-term effectiveness requires the development of a popular and 

vibrant semi-public constituency for social progress. CSOs have a critical role to play in rule of 

law as service providers, as well as beneficiaries, informal overseers, partners, and advocates of 

reform. Judge Advocates need to be aware of ongoing efforts and partnering opportunities and to 

ensure that related military initiatives are compatible with credible CSO efforts in their sector. 

Political legitimacy of the law – the ultimate goal of every rule of law project – can only come 

with the kind of broad social involvement that civil society represents. 

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

•	 Increase the capacity of civil society to monitor government policy and practice on 

security and justice issues. 

•	 Strengthen the legal and regulatory framework within which civil society can 

operate. 

•	 Build trust and partnership between governments and civil society on security and 

justice issues. 

•	 Improve the research capacity of CSOs and their role in representing the views of 

local communities. 

•	 Develop CSOs’ technical capacity to provide policy advice and provide security and 

justice services 

•	 Build wider constituencies in support of rule of law through increasing media 

coverage and raising public awareness. 

•	 Facilitate the emergence of a broader and more representative civil society. 

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

These are some specific strategies that the rule of law practitioner can use to help 

leverage the impact of the CSOs operating in the host nation. 

Police reform. CSOs can play a valuable role in working to minimize distrust between 

communities and the police. For instance, community-based policing forums should be explored 

as a way to build confidence and help tackle crime. 

Human rights and access to justice. CSOs play an important role in advocating for 

human rights and increasing access to justice. Many bar associations, independent lawyers 

groups and NGOs work to promote human rights through training of security forces, 

campaigning for legislation, monitoring allegations of abuses, and providing legal and paralegal 

assistance. Work in these areas is particularly important in countries with a repressive state or 

countries emerging from violent conflict and political transitions where rights are often not 

respected. 

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Peace processes. Civil society can play a central role in peace processes and sometimes 

even in peace negotiations, as was the case in Guatemala during the 1990s. Their active role 

could be used to press for the inclusion of relevant rule of law provisions in peace agreements. 

National development plans. Governments and international actors are wise to consult 

civil society in the development of poverty reduction strategies and country assistance plans. 

This creates an opportunity to hear the views of CSOs on security and justice issues, providing 

them with a chance to help set development priorities, have direct input into policy-making, and 

mobilize local and national ownership in the process. 

Delivering justice services. In many countries, CSOs deliver essential justice services that 

the state fails to provide and have a significant impact in advancing justice by addressing 

grassroots needs. Common examples are those of lawyers, paralegals, legal aid centers, victims’ 

support groups and refuges from domestic violence, which deliver services on a pro-bono basis 

or for a relatively small fee. 

Public education programs. In many countries, ongoing public education programs 

focusing on the rule of law (from human rights to the proliferation of small arms) are run by 

CSOs. 

Oversight of the security system. CSOs can help inform, influence and assess the 

performance of formal civilian oversight bodies and security system institutions. 

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Providing Legal Aid in Kirkuk 

One of the key challenges to promoting the rule of law in Iraq is ensuring public 

education about and access to the legal system. While developing a plan to 

improve public access to the legal system, the PRT rule of law team in Kirkuk 

learned of an organization of Iraqi attorneys in the area with similar goals: the 

Kirkuk Jurist Union (KJU). The KJU, which is an organization of Iraqi lawyers 

and other legal professionals which operates somewhat like a bar association, had 

also identified the problem of public education and access to the legal system and 

was doing what it could (with very few resources) to address the issue, including 

publishing pamphlets and brochures to increase public awareness. 

The PRT attorneys decided to put aside their original project and to work with the 

KJU to develop a project proposal that would build on the ongoing efforts of the 

KJU. Working with the US Agency for International Development (USAID) 

partners, the team developed a program to expand the KJU’s publication of 

pamphlets and brochures, increase its distribution, fund legal assistance lawyers 

within the KJU offices, and eventually open offices in each of the districts. The 

project not only provides face-to-face legal consultations, but also funds 

informational workshops for both laymen and legal professionals to increase their 

awareness of the legal system. This proposal, at a total cost of less than $150,000, 

was quickly approved for funding under USAID’s Civil Society Conflict 

Mitigation program.128 The end result was a project that met the needs of the Iraqi 

public and was consistent with the goals of both the Government of Iraq and 

Coalition Forces. 

3. Conducting a Baseline Assessment in this Sector 

Rule of law programs should include a firm analysis of the context, role and position of 

CSOs, since their capacity, effectiveness and space to engage varies greatly from country to 

country. Civil society assessments must take into account the range of local actors beyond those 

approved by the state and identify those that genuinely focus on improving the human security of 

the poor, women, and other groups often excluded from security debates. The following are 

example questions for civil society assessments, potentially useful as a starting place for a set of 

intelligence requirements to be submitted to the G-2 for additional collection and analysis. 

Baseline Assessment for roles of Civil Society in Rule of Law129 

Context 

What are the political, social, and legal frameworks (e.g., social pressures, legal 

restrictions, and history) in which civil society operates? 

128 Civil Society Conflict Mitigation funds are a component of USAID’s Iraq Rapid Assistance Program. 

These funds can be used for activities that build stronger bridges between the government and civil 

society. USAID’s Iraq programs are described at http://www.usaid.gov/iraq/. This project is discussed in 

greater detail in section XI.C. 

129 See also section VI.C on Assessments for direction on how to conduct the assessment and how to use 

these questions as measures of effectiveness to monitor progress. 

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Is there a national NGO network that provides coordination and support for 

CSOs? 

When does government take an adversarial or a partnering relationship with 

CSOs? 

Which CSOs work on security and justice issues and how credible are they? What 

is their relationship with the government? 

Accountability and Oversight 

Which CSOs help oversee the security and justice systems? 

Which mechanisms exist to ensure that CSOs are equally accountable to their 

populations and their external partners? 

Capacity 

Which CSOs are the possible agents of change in the security system? What are 

their key sources of influence? Are they effective and efficient? 

Have certain CSOs demonstrated a capacity to engage security-related issues? 

What capacity do CSOs have for research, advocacy, training and policy advice? 

Management 

How strong are the internal managerial systems of relevant CSOs? 

Do they handle budgeting activities competently and transparently? 

Coordination with other parts of the security system 

Which CSOs have connections to security and justice actors? 

What institutional mechanisms exist for CSOs and state security and justice 

sectors’ interaction? 

What state or coalition activities can be used as a vehicle for engaging with civil 

society? 

Are members of CSOs put at a security risk by interacting with the security 

sector? 

External Partners Engagement 

What is the relationship between CSOs and international NGOs and external 

partners? 

Is there primarily a need for programmatic or institutional support to CSOs, or 

both? 

How can sustainability be built among targeted CSOs? 

Are there any potential risks involved in interacting with specific CSO groups? 

What is the likely impact of external partners’ involvement or assistance on the 

local conflict dynamics? How can negative impacts be avoided or, at least, 

minimized? 

125 Chapter V - Context 
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Is there a risk that external support may endanger members of CSOs and how can 

they be protected from human rights abuses? 

4. Common Challenges and Lessons Learned to Guide Implementation 

Support capacity development. Building the capacity of CSOs requires a long-term 

perspective in program planning, particularly when civil society is weak or under-developed. 

Consider the role of International CSOs in capacity-building. International CSOs can 

help strengthen their equivalents in the partner countries by assisting in creating political space 

for engagement with their governments on security and justice issues, as well as providing moral 

support, protection, and security. International NGOs can also provide important technical and 

capacity-building support through, for example, skills development and training programs. 

Ensure transparency of engagement with CSOs. It is important that governments and 

international actors are transparent in their dealings with CSOs to avoid misperceptions. Opaque 

engagement risks the population or other CSOs growing suspicious of the relationship between 

governments and CSOs and national governments becoming distrustful of the relationship 

between external actors and local CSOs. 

Coordinate assistance. Coordination with other local and international actors is essential 

to avoid duplication, to pool resources, and to concentrate efforts in supporting CSOs, while 

fostering their independence and sustainability. 

Institutional funding and sustainability. In countries with emerging CSOs acting in the 

security and justice arena, it is important to ensure provision for core institutional funding. 

Although practice demonstrates that external partners are more disposed to support project-based 

activities, this limits CSOs’ ability to engage in the longer-term and to develop or seize emerging 

opportunities in domestically driven security reforms. On the other hand, openness towards 

longer-term funding must be balanced with concerns of sustainability. There is a requirement for 

CSOs to develop balanced sources of funding in order to sustain their independence and avoid 

both donor fatigue and the appearance of dependence on a particular interest group (including 

foreign nations and the national government itself if it is a source of CSO funding). This can be 

done, for example, through harnessing the support of the private business sector and charity 

campaigns. 

Support regional and international networks and partners as a bridge to the national 

level. In many countries it may be difficult for CSOs to engage directly in security and justice 

issues at the national level. Participation in security-related discussions and mechanisms at the 

regional level tends to be a good means of exerting indirect pressure on the national level as local 

CSOs are normally seen to have more credibility if they are members of regional or international 

networks or have international partners. 

Build media capacity to report on rule of law and include media strategies into 

programming. The media is one of the main channels to help raise public awareness on issues 

pertaining to the rule of law. In many countries, especially post-conflict ones, the media is underdeveloped and journalists lack the capacity and knowledge to effectively cover security and 

justice issues. CSOs can play an important role in helping to develop these skills and developing 

the capacity of CSOs to effectively engage with the media can be an important area for 

assistance. 

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Train the trainers. Experience shows that this form of cascade training, in which 

representatives of leading CSOs train others, can be very effective. It helps in building local 

training capacity, ensures that contents are relevant and sensitive to local contexts, and 

maximizes the outreach to community level. 

Support research institutions. Developing the capacity of academic and research 

institutes can help generate a better understanding of the context, situation, relevant actors and 

challenges faced in a given country. Law schools, for instance, are a critical element of the civil 

society infrastructure supporting the rule of law. 

Beware of any lack of domestic legitimacy. Supporting CSOs without broad domestic 

legitimacy may jeopardize reforms with the government and alienate wider civil society. Some 

CSOs are more closely connected to national elites and external partners than to local 

communities. 

The tension between role as watchdog and partner. When CSOs move from playing a 

watchdog role and start to participate in actually helping to implement the rule of law, their 

domestic audience may perceive them as no longer being neutral. On the other hand, 

governments may not trust them as partners if they are being publicly critical. Some 

compromises will have to be made and training in how to raise sensitive issues without being 

overtly confrontational may be essential for CSOs performing advocacy roles. For example, both 

in the Democratic Republic of Congo and Liberia, civil society became party to the peace 

agreement ending the conflict, taking up seats in transitional parliament and management of 

government-owned industries. This had implications for perceptions of its neutrality. 

Be aware of potential negative role of some civil society groups. Violent conflict often 

engulfs, politicizes and splinters civil society. Some organizations, which may be considered to 

have played a negative role in the conflict, could act as a spoiler to peace processes. 

Ensure the security of NGO and CSO partners. In many contexts NGOs are targeted with 

violence by belligerent factions or insurgents, and they are almost invariably ill-prepared to 

provide their own security in a non- or semi-permissive environment. Security failures that affect 

CSOs can devastate reconstruction efforts, including rule of law operations. Deployed Judge 

Advocates need to be aware of the security risks that CSOs face and to either work to provide 

security or, if the situation is untenable, help to arrange for their exit from the AO. 

H. Non-State Security Providers 

Non-state security providers encompass a broad range of security forces with widely 

varying degrees of legal status and legitimacy. Government regulated private security companies 

(PSCs) and some neighborhood protection programs are examples of legitimate services; some 

political party militias are acceptable in certain countries, while for the most part guerilla armies, 

warlord militias, and so-called “liberation armies” are generally illicit and counterproductive to 

any peace process or stabilization effort. The key characteristic that all of these non-state actors 

share, however, is that they provide some form of security to someone. While private security 

forces can and do provide critical, legitimate security functions, unlike traditional police they do 

not serve the general public. In attempting to bring them and their actions within the rule of law, 

the role of private actors in providing security services has to be recognized and addressed. Nonstate actors provide many different types of security services: 

127 Chapter V - Context 
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Military Services 

Military training/consulting 

Military intelligence 

Arms procurement 

Combat and operation support 

Humanitarian de-mining 

Maintenance 

Security Services 

Physical security (static/transport) 

Close protection (body guarding) 

Rapid response 

Technical security 

Surveillance service 

Investigative services 

Risk assessment and analysis 

The “private security sector,” as distinct from other types of non-state security actors, is 

generally defined as those commercial companies directly providing military or security-related 

services (of a more protective nature) for profit, whether domestically or internationally. The 

number of PSC personnel and the size of PSC budgets exceeds public law enforcement agencies 

in many countries, including South Africa, Philippines, Russia, US, UK, Israel, and Germany. 

The private security sector is rarely addressed in any systematic way in rule of law programming 

or assessment. As a result, there is a considerable lack of practical experience for practitioners to 

draw on. 

It is tempting to ignore non-state security actors or treat them as a host nation problem. 

However, if the sector is neglected in broader rule of law programming, it may come to represent 

an essentially parallel and largely unaccountable sector in competition with state justice and 

security provision. Without effective regulation and oversight, the PSCs are often narrowly 

accountable to clients and shareholders, rather than democratically accountable to public law, 

and over reliance on PSCs can reinforce exclusion of vulnerable populations and unequal access 

to security. Unaccountable non-state security actors can facilitate human rights abuses or 

inappropriate links between the private security sector and political parties, state agencies, 

paramilitary organizations and organized crime. 

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Security Contractors 

The role of private security contractors (PSCs) in areas of combat operations has 

received significant public attention, due largely in part to a number of highprofile incidents in Iraq, including the September 2007 incident in Nisour Square, 

Baghdad involving Blackwater in which 17 Iraqis were killed. Since then, one 

contractor has pled guilty to manslaughter and five others are being tried for the 

shootings in federal court. The incident brought several critical issues to the 

forefront, including the nature of the Iraqi licensing regime; the extent of 

contractor immunity under Iraqi law; the question of US jurisdiction; the 

appropriate rules for the use of force for PSCs in a war zone; etc. The incident led 

to numerous improvements in the oversight and accountability measures 

implemented by DOS and DOD in Iraq, and the degree of USG communication 

and cooperation with the Iraqi authorities. As part of the 2008 Security 

Agreement, the Iraqi government insisted on a provision providing for Iraqi 

jurisdiction over such cases. 

1. Assessing the Role of Non-State Security Providers 

A professional, accountable and well-regulated private security industry can complement, 

rather than undermine, the state’s ability to provide security. A healthy private security sector 

can allow scarce public resources to be usefully redirected for other purposes, including the 

public provision of security to those who cannot afford it by private means. Within this context, 

the issues that may need to be addressed can be summed up as follows: 

•	 Clarifying the roles of the private security sector and its relationship with public 

security agencies, and increasing cooperation 

•	 Clarifying the legal status of PSCs, and how it may change depending on factors 

such as nationality, type of services offered, and clients 

•	 Statutory regulation and government oversight, perhaps through licensing 

•	 Professionalism and voluntary regulation 

•	 Transparency, accountability, and oversight 

•	 Training for private security staff in human rights and humanitarian law, use of 

force and firearms, first aid, and professional operating standards 

•	 Integration of private security sector reforms into broader Security Sector Reform 

(SSR) programs. 

Recognizing that non-state security actors can potentially provide a valuable function, it 

is important to understand the development cycle of the private security industry that can lead to 

more effective control of all non-state security forces. In general, regardless of the context, as 

host nation governance is restored and strengthened, a relatively unregulated and rapid 

proliferation of non-state security providers is often followed by a period of consolidation and 

professionalization, in which a more sophisticated domestic control regime is established and the 

most questionable operators are marginalized. A baseline assessment should include viewing the 

varying roles of non-state security providers as a sector, and analyzing the existing governance 

or regulatory framework in which they exist. At the same time, it is critical not to view the sector 

129 Chapter V - Context 
 

 

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as one undifferentiated mass; there might be great variety among private security providers. 

Several factors – including nationality, mission, and for whom they are working – can affect the 

legal status of any particular provider. 

Context 

What are the factors contributing to supply of and demand for private security 

services and other non-state security providers? 

Who are their clients and what security threats are they hired to protect clients 

from? How many work on behalf of host government entities, foreign 

governments or militaries, foreign-funded reconstruction entities, international 

organizations, purely commercial companies, etc.? 

How does the public perceive them? 

Is there demand for reform of the sector from government, civil society, client 

groups, or from legitimate PSCs? 

To what extent are PSC employees affiliated and identified with former armed 

groups (e.g. militias), ex-combatants, and arms trafficking? 

What is the impact of non-state security providers, including the private security 

sector, on public law enforcement services, crime levels, public safety, human 

rights, and business confidence? 

Regulation and Oversight 

What laws and regulations – both domestic and foreign – are in place to govern 

the private security sector and the use of firearms by civilian corporate 

entities? 

How do those laws and regulations apply differently depending on the nature of a 

given security provider? 

Which government agencies or ministries are involved in the control and 

regulation of PSCs? 

What procedures and criteria exist for licensing and registering PSCs? What 

systems and standards exist for vetting and licensing private security 

personnel? 

Have PSCs or other non-state security actors or their personnel been implicated in 

crime, and have incidents led to trials or prosecutions? 

What voluntary codes of conduct, industry bodies and standards exist, if any? Do 

enforcement mechanisms exist? 

Do procurers of private security services have selective procurement criteria or 

report information on the companies or individuals that they employ? 

Where foreign militaries or governments procure private security providers, what 

oversight and accountability measures have they put in place? How do these 

entities communicate and cooperate with the host government? How effective 

is the host government’s ability to regulate PSCs employed by foreign forces? 

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Capacity 

What is the size and profile of the private security industry operating in the 

country and overseas (e.g. size and number of companies, number of 

personnel, annual turnover)? 

What services can they offer and which do they provide? 

What is the capacity and coverage of private security provision compared with the 

police and public providers? 

Management 

What is the ownership structure of the private security industry (e.g. national, 

international, subsidiaries of international companies)? 

What kind of training is provided to staff? Is there a code of conduct? Is it 

enforced by the companies on their staff? 

What are the human resource and recruitment policies and practices? 

Do they vet recruits for criminal convictions, disorderly conduct or in postconflict situations, for human rights abuses? 

What are the command and control arrangements for staff while on duty? 

How are small arms and ammunition controlled, stored and managed by PSCs? 

Coordination with Other Parts of the Security System 

What affiliations and relationships do companies have with government officials, 

law enforcement agencies, military, intelligence agencies, political parties, 

criminal groups, and militias? 

What is the functional relationship and division of responsibilities between public 

and private security providers? 

How are state security providers involved in training, licensing and support of 

private security providers? 

Donor Engagement 

Do existing SSR programs contain a private security component? 

Have donors undertaken a security or conflict assessment prior to their SSR 

interventions and if so, was the private security sector considered as a factor? 

Do international actors operating in-country, such as humanitarian and donor 

agencies, procure private security services, and what are their procurement 

criteria? 

2. Ten Lessons Learned 

(1) Avoid creating a security vacuum. Non-state security actors may be the only providers 

of security in areas or sectors where state provision of security is weak. To avoid creating a 

security vacuum, it may be necessary to strengthen state security provision and capacity for 

oversight as a precondition for effectively regulating the private security sector. 

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(2) Control the activities of personnel wherever they are working. This is essential to 

ensure that they are accountable for all wrongful acts wherever they are committed, particularly 

when the domestic regulatory environment is weak. Especially in areas of active combat, 

however, it must be recognized that there are substantial challenges to designing and enforcing 

effective and fair accountability measures. For example, security concerns may prevent the 

return of investigators to the scene of a firefight. 

(3) Clarify the roles and functions of private security providers and their clients. Issues 

include private sector involvement in law enforcement or military operations, procedures for 

reporting to the police, and the role of the police in enforcing private security sector legislation. 

Also, especially where PSCs are working on behalf of a foreign government or military, that 

entity should have adequate oversight and accountability controls to control such PSCs, and to 

ensure proper communication and cooperation with the host government. 

(4) Establish transparent licensing criteria. Licensing criteria might include adherence to 

standards related to vetting and training, equal employment practices, recording and reporting 

operations, oversight and management structures, responsibilities to the public, and relations 

with public service providers. 

(5) Do not overlook criteria for licensing host nation security providers who operate in 

other countries. Regulation should include whether the company or its proposed activities are 

likely to pose a threat to law and order, undermine economic development, enhance instability 

and human suffering, increase threat perceptions in neighboring countries, contribute to or 

provoke internal or external aggression; or violate international embargoes or sanctions. 

(6) Be cautions of immunity agreements that insulate outside PSCs. International private 

security providers may acquire immunity agreements from HN governments to prevent 

prosecution under national laws. These agreements are often a condition of undertaking work on 

behalf of governments, particularly in conflict or post-conflict situations. Despite their apparent 

utility, these agreements can weaken the rule of law in the host nation, often at a time when 

establishing and enforcing it is essential to the provision of security. If such immunity is granted, 

it is important to ensure effective alternative accountability measures. 

(7) Prescribe basic PSC training. Regulatory authorities should establish and oversee 

training for private security providers that, in addition to ensuring proper training on use of force 

law and policies, give personnel a good grounding in human rights and humanitarian law, first 

aid and gender issues. 

(8) Assure accountability extends to owners, not just employees, of PSCs. In post-conflict, 

a thorough assessment of the ownership and command and control structure of PSCs is essential 

in order to ensure that they do not operate based on previous or on-going affiliations with 

criminal groups, armed combatants, or political parties and that they are not ethnically or 

religiously exclusive in their recruitment of personnel or areas of operations.130 

130 For information on vetting public employees see OFFICE OF THE UN HIGH COMMISSIONER FOR 

HUMAN RIGHTS, RULE OF LAW TOOLS FOR POST-CONFLICT STATES – VETTING: AN OPERATIONAL 

FRAMEWORK (2006), available at 

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(9) Address the links to DDR. Disarmament, demobilization and reintegration (DDR) 

programs may need to specifically include private security personnel, who are often recruited 

locally and may have played an active role in conflict. Former combatants may provide a 

recruitment pool because they frequently possess specialized military skills but lack alternative 

economic opportunities. This can lead to problems if former combatants are not adequately 

vetted and trained. If not carefully monitored, PSCs in a post-conflict environment can contribute 

to insecurity through maintaining command structures and legitimizing weapons possession 

under the guise of legitimate private security provision. 

(10) Remember that PSCs are part of the broader civil society. Where possible, align 

efforts to deal with the problem of non-state security providers with civil society and community 

safety initiatives. In addition to the involvement of CSOs, community safety programs are also 

useful tools that can help increase the oversight of the private security sector by local authorities 

and community groups. They do so by encouraging dialogue between communities and all 

security providers, and encouraging local cooperative agreements between security providers and 

communities that outline the roles and practices of the different actors in maintaining local 

security, law, and order. At the same time, encourage the host government and civil society to 

educate the public about the role and authorities of PSCs, to align expectations and reduce 

miscommunications. 

http://www.ohchr.org/english/about/publications/docs/ruleoflaw-Vetting_en.pdf. For further information 

about the ICTJ research project on vetting and additional guidelines being developed see 

http://www.ictj.org/en/research/projects/vetting/index.html. 

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Chapter V - Context 134 
 

VI. Planning for Rule of Law Operations 

Mission planning does not occur in a vacuum. It is subject to the demands of available 

resources, time, and the operational goal to be obtained. Planning for the rule of law mission is 

no different. Hindsight and analysis of past post-conflict operations suggest that there must be a 

thoughtful, systematic, and phased rule of law planning strategy. That planning effort, in turn, is 

driven by military and interagency planning methodologies with which Judge Advocates must be 

familiar in order to successfully support or lead rule of law operations. 

This chapter begins with an overview of the Military Decision Making Process (MDMP) 

designed to familiarize Judge Advocates in rule of law operations with this common military 

planning methodology. Drawing on the MDMP, the chapter provides some substantive, albeit 

general, guidance on how to plan for deployment as a rule of law practitioner, to assess the state 

of rule of law, and measure progress in rule of law operations. The State Department’s Office of 

the Coordinator for Reconstruction and Stabilization (S/CRS) has promulgated a framework for 

interagency reconstruction and stability operations, and the chapter discusses that framework 

along with the ongoing implementation of that framework in Army doctrine. 

A. The Military Planning Process 

Frequently, Judge Advocates find themselves responsible for rule of law operations with 

little previous experience or training in Army or Joint planning methodology. But no operation 

exists in a vacuum; it must be carried out as part of a set of operations undertaken by a particular 

unit. Consequently, the rule of law operations that Judge Advocates either support or lead must 

advance through the same planning process as the other operations the unit is currently 

undertaking, even competing with other operations and priorities for scarce resources both within 

the unit and to be obtained from outside resources. The military has a methodology for planning 

and assigning priority to operations, and Judge Advocates must understand that methodology 

well enough to intelligently participate in the planning process that will necessarily accompany 

any rule of law operation.1 

1. Why Planning is Important 

“Begin with the end in mind.” This popular maxim should guide the Judge Advocate 

involved in planning for rule of law operations. The rule of law environment in COIN and 

stability operations is likely to be complex and uncertain. The mission of creating or enhancing 

the rule of law presents the rule of law practitioner with an “ill-structured” problem – one where 

no clear formulation of the problem appears possible, one without all the required information, 

one with multiple solutions and one requiring multiple solutions applied concurrently or 

sequentially.2 The Judge Advocate in the field will be presented with complex rule of law 

challenges and many ideas and solutions that compete for military support and resources. The 

1

 A training program in the Military Decision Making Process is available to Army Judge Advocates 

online through JAG University. Go to https://jag.learn.army.mil and enroll in the “JATSOC Elective”. 

MDMP is the sixth module in the course. 

2

 U.S. DEP’T OF ARMY, FIELD MANUAL 5-0, ARMY PLANNING AND ORDERS PRODUCTION para. 2-22 (20 

Dec. 2005). 

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military planning process provides a systematic and analytical process that helps to make 

decisions about military support to rule of law programs. 

Utilizing the military planning process will help to ensure that the commander’s rule of 

law vision is properly informed, that effort and resources are devoted to those programs that will 

create the desired effects, and that military rule of law operations are integrated and 

synchronized with our host nation and interagency partners. Utilizing the military planning 

process will allow the Judge Advocate to focus the commander and staff on rule of law issues in 

the same manner as other military operations and prevent rule of law operations from becoming 

“something the Judge Advocates do.” The effective Judge Advocate will be an active participant 

in the military planning process by informing the process with a thorough knowledge of the rule 

of law aspects of COIN and stability operations and a thorough understanding of the process the 

commander and staff use to make decisions and plans. The military planning process will 

provide the Judge Advocate in the field with a system to address complex, uncertain, and 

challenging rule of law issues with synchronized, integrated and efficacious military support of 

rule of law programs. 

The concept of planning for military support of rule of law operations should not be 

interpreted as meaning that the military operations in the rule of law arena are independent of 

host nation, coalition and interagency participants in the rule of law mission. An important aspect 

of the military planning process is that information is received from and coordination made with 

the other actors in the rule of law area. 

Coordination in OIF-1 

During OIF-1, the legal reconstruction effort in southern Iraq was disjointed, as 

the Judge Advocates operating in each province did not have the communications 

capabilities to coordinate with each other and there was confusion within the 

chain of command structure. Further, some Judge Advocates had unclassified 

email access, some had only classified email access, and others had none at all. 

Initial planning deficiencies that failed to consider the chain of command, 

reporting, and communications issues led to two months of duplicated effort and 

lack of regional coordination that unnecessarily delayed restoring courthouse 

operations across the southern region by several months in some instances.3 

2. What is Planning? 

Planning is the means by which the commander envisions a desired outcome, lays out 

effective ways of achieving it, and communicates to his subordinates his vision, intent, and 

decisions, focusing on the results he expects to achieve (FM 3-0). The outcome of planning is a 

plan or an order that: 

• Fosters mission command by clearly conveying the commander’s intent 

• Assigns tasks and purposes to subordinates 

3

 CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ: VOL. II, FULL SPECTRUM OPERATIONS 254 (2006). 

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•	 Contains the minimum coordinating measures necessary to synchronize the 

operation. 

•	 Allocates or reallocates resources. 

•	 Directs preparation activities and establishes times or conditions for execution4 

Planning for rule of law programs in COIN and stability operations will present the rule 

of law practitioner, commander, and staff with a complex and unfamiliar situation. Planning in 

these environments is best done using the analytic decision making process. (FM 5-0, para. 1-20) 

Analytic decision making approaches a problem systematically. Leaders analyze a problem, 

generate several possible solutions, analyze and compare them to a set of criteria, and select the 

best solution. The analytic approach aims to produce the optimal solution to a problem from 

among those solutions identified. This approach is methodical, and it serves well for decision 

making in complex or unfamiliar situations by allowing the breakdown of tasks into recognizable 

elements. It ensures that the commander and staff consider, analyze, and evaluate all relevant 

factors. (FM 5-0, para. 1-20) As one rule of law practitioner in Iraq explained, “the military 

decision making process (MDMP) detailed in FM 5-0 applies as much to a rule of law advisor as 

to any staff officer.”5 

3. The Military Decision Making Process 

The military decision making process (MDMP) is the analytic decision making approach 

that Army commanders and staffs use to plan operations at most levels of command. The 

military decision making process is described in detail in FM 5-0, Army Planning and Orders 

Production. The Marine Corps Planning Process (MCPP), described in Marine Corps 

Warfighting Publication (MCWP) 5-1, Marine Corps Planning Process, is an analogous 

planning methodology. The Joint Operation Planning Process (JOPPS) is the related joint 

analytic decision making process for joint operations, and is described in JP 5-0, Joint Operation 

Planning, ch. III. The planning steps in the three systems are closely related. Because most 

readers of the Handbook will conduct planning in tactical and operational units that utilize 

MDMP and joint operations planning, this chapter will reference primarily the concepts 

contained in the Army and joint methodologies, but this description should generally apply with 

minor translation to the MCPP as well. 

4

 FM 5-0, supra note 2, at para. 1-2. 

5 See also generally NORMAN M. WADE, THE BATTLE STAFF SMARTBOOK (2d rev. ed. 2005), a practical 

guide for staff planning. 

137 Chapter VI - Planning 
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FM 5-0, fig. 3-1, The Military Decision Making Process 

It is important to note that the MDMP assumes full staff involvement. It will be 

impossible for the Judge Advocate to carry out the MDMP in isolation. Thus, it is critical that the 

Judge Advocate planning rule of law operations form good working relationships with the other 

cells in the commander’s staff. 

a) Step 1: Receipt of Mission 

The rule of law practitioner plays a key role in the MDMP for rule of law programs from 

the very first step in the process. As soon as the unit receives the mission, the staff gathers the 

tools needed to conduct the mission analysis. This process will include the orders or plans of the 

higher headquarters. Both the Joint Campaign Plan for Iraq and the Joint Campaign Plan for 

Afghanistan include a Rule of Law Annex, and that should be the case for any well-developed 

theater, but it may not always be the case. 

Regardless of the stage of the campaign, though, the Judge Advocate should be careful to 

avoid the tendency to act as though he or she is the first one to operate in this area. This initial 

step of gathering existing plans will afford the rule of law practitioner the first opportunity to 

integrate programs with interagency, coalition, and host nation partners. Existing assessments of 

the rule of law environment may exist within USAID, host nation commissions or ministries, 

non-governmental organizations, civil-affairs teams, predecessor units, and offices within the US 

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mission. Embassies in both Iraq and Afghanistan have a Rule of Law Coordinator charged with 

coordinating USG rule of law programs within the country and Provincial Reconstruction Teams 

have embedded rule of law professionals. Gathering information from such sources will be a 

good way to meet the other rule of law practitioners in your area of concern and plant the seeds 

for an integrated and synchronized rule of law effort. 

In this stage of the process the rule of law practitioner should be focused on learning what 

is known and, of at least equal importance, what is not known about the rule of law environment 

in his area of concern. Identifying what is not known will serve an important function in later 

steps as critical information requirements are identified and intelligence products requested. 

The goal of the rule of law practitioner in this step should be to collect the information 

about the rule of law operational environment to give the commander and staff situational 

understanding. Operational environments are a composite of the conditions, circumstances, and 

influences that affect the employment of capabilities and bear on the decisions of the commander 

(JP 3-0 and FM 3-0, para 1-1)). While they include all enemy, adversary, friendly, and neutral 

systems across the spectrum of conflict, they also include an understanding of the physical 

environment, the state of governance, technology, local resources, and the culture of the local 

population. For example, are the criminal courts trying insurgent cases, and if not, why not? Is 

the population choosing to use the court system of the government to resolve its disputes, and if 

not, why not? Do the police have the confidence of the population, and if not, why not? In 

collecting the existing information concerning the rule of law operational environment, the rule 

of law practitioner should collect any information that explains the difference between the 

desired rule of law condition and the current conditions. In identifying problem areas, the rule of 

law practitioner should seek to identify the root cause of the problem, not merely the symptoms. 

(FM 5-0, para 2-26) Systems analysis should be used to understand the systems of systems that 

compose the rule of law environment.6 

During this phase of MDMP, the rule of law practitioner should develop a broad and 

comprehensive understanding of what the rule of law consists of in the particular environment. 

How complex a system is it? How does it link with the rest of society, government, and the 

economic system of the country? Unlike most MDMP problem sets, rule of law will involve 

institutional and societal dynamics that go beyond the normal physical or geographical 

understanding of a military operational environment. In this step, reconsider how the definition 

of rule of law and its effects relates to the mission that you are receiving from your higher 

headquarters. 

Awareness of cultural and political issues and conditions within the host nation may be 

critical to a proper understanding of the rule of law environment. Therefore, the gathering 

information phase may include contacting sources outside traditional rule of law entities, to 

include intelligence entities and host nation sources. 

Although it is only part of the first step in the MDMP, assessment is going to be a major 

part of any rule of law program. Assessment products can also help to visualize the Rule of Law 

6

 On the “systems perspective” and its place assessing the environment, see JOINT CHIEFS OF STAFF, 

JOINT PUB. 5-0, JOINT OPERATIONS PLANNING III-16 – III-19 (26 Dec. 2006). 

139 Chapter VI - Planning 
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system or environment and ensure that you consider all aspects of the system. Section VI.C 

addresses assessment in greater detail. 

b) Step 2: Mission Analysis 

The primary purpose of mission analysis is to understand the problem and purpose of the 

operation and issue appropriate guidance to drive the rest of the planning process. (JP 5-0, para. 

III-12) A detailed diagram of the mission analysis step is found at Figure III-4, JP 5-0. The rule 

of law practitioner has an important role in this step in assisting the commander and staff to 

understand the rule of law challenges, identify the root causes of those challenges and articulate 

the purpose of the rule of law operation. Careful analysis informed by proper assessments is the 

key to success in this step, and therefore the success of mission analysis is dependent in large 

part of the quality of the initial assessment, whose contents in turn must be driven by the needs 

of the mission analysis. 

Understanding the root causes of the impediments to creating or enhancing a rule of law 

environment is critical to mission analysis in rule of law operations. Absent a careful analysis of 

root causes, commanders and staff are likely to default to strictly institutional projects such as 

building courthouses or training judges, which may or may not have anything to do with 

remediating the impediments to enhancing the rule of law. 

The mission analysis must include analysis of the human factors that will affect the rule 

of law mission. Incorporating human factors into mission analysis requires critical thinking, 

collaboration, continuous learning, and adaptation. It also requires analyzing local and regional 

perceptions. Many factors influence perceptions of the enemy, adversaries, supporters, and 

neutrals. These include: 

• Language 

• Culture 

• Geography 

• History 

• Education 

• Beliefs 

• Perceived objectives and motivation 

• Communications media 

• Personal experience 

Assessments that address primarily infrastructure and institutions will necessarily blind the 

mission analysis to the real issue – do the people believe that the legal system is legitimate and 

trust it to accomplish the effects discussed in Chapter II. 

Commanders and staffs at the BCT and division levels may be familiar with the ASCOPE 

approach to assessing civil considerations that comprise the rule of law operational environment. 

Civil considerations reflect how the man-made infrastructure, civilian institutions, and attitudes 

and activities of the civilian leaders, populations, and organizations within an area of operations 

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influence the conduct of military operations.7 Commanders and staffs analyze civil 

considerations in terms of the categories expressed in the memory aid ASCOPE: 

Areas 

Structures 

Capabilities 

Organizations 

People 

Events8 

Civil considerations help commanders develop an understanding of the social, political, 

and cultural variables within the area of operations and how these affect the mission. 

Understanding the relationship between military operations and civilians, culture, and society is 

critical to conducting full spectrum operations.9 These considerations relate directly to the effects 

of the other instruments of national power. They provide a vital link between actions of forces 

interacting with the local populace and the desired end state. 

The assessment process should result in identifying the centers of gravity for the rule of 

law operations. A center of gravity is the set of characteristics, capabilities, and sources of power 

from which a system derives its moral or physical strength, freedom of action, and will to act. (JP 

5-0, page IV-8) In the context of a COIN operation, the essence of the operational art lies in 

being able to produce the right combination of effects in time, space, and purpose relative to an 

insurgent center of gravity to neutralize, weaken, defeat, or destroy it. In contingency operations 

like COIN and stability operations, the center of gravity is often an intangible, not a physical 

location or mass of enemy forces. (JP 5-0. Fig IV-2) Intelligence assets should be utilized to 

identify adversary and friendly centers of gravity. (JP 5-0, page IV-10) The planning effort will 

then seek to target insurgent centers of gravity and protect friendly centers of gravity, such as 

local goodwill. 

An important by-product of the assessment process is identifying what information is not 

known that is critical to the decision-making of the staff and commander. This information is 

identified as Commander’s Critical Information Requirements (CCIRs). CCIRs comprise 

information requirements identified by the commander as being critical to timely information 

management and the decision-making process that affect successful mission accomplishment. 

(JP 5-0, page III-27) The information needed may be about friendly forces (critical friendly force 

information) or about other forces or conditions (priority intelligence requirements). Identifying 

CCIRs will allow the commander to direct the staff to find the critical information and will guide 

the intelligence assets in the Intelligence Preparation of the Battlefield process (IPB). The rule of 

law practitioner must also ensure that the IPB considers more than the bilateral friendly/threat 

7 See generally U.S. DEP’T OF ARMY, FIELD MANUAL 6-0, MISSION COMMAND: COMMAND AND 

CONTROL OF ARMY FORCES (11 Aug. 2003). 

8 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS para. 5-36 (27 Feb. 2008). 

9

 The civil-military relationship is, of course, at the core of the Civil Affairs discipline, and is covered 

extensively in JOINT CHIEFS OF STAFF, JOINT PUB. 3-57, CIVIL-MILITARY OPERATIONS (8 July 2008) and 

U.S. DEP’T OF ARMY, FIELD MANUAL 3-05.40, CIVIL AFFAIRS OPERATIONS (29 Sept. 2006). 

141 Chapter VI - Planning 
 

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equation. In rule of law, stability, and COIN operations, the role of the populace and sometimes 

even the role of the regional or international community can be decisive in the success of 

building legitimacy and defeating insurgent or other drivers of conflict. Therefore, IPB that 

supports this kind of planning must be more expansive and flexible. Rule of law practitioners 

must articulate this to the intelligence experts on the staff and work with them to build a proper 

model for analysis. 

Careful analysis of the mission will address the proper role of the military within the rule 

of law effort in the area of concern. Ideally, the military rule of law efforts will be in support of 

efforts of our host nation and civilian interagency partners. However, the security environment 

may limit the ability of civilian agencies to operate. Thus, while others may have the lead, US 

military forces must be prepared to carry out all aspects of stability operations.10 US military 

planners should also understand the institutional perspectives of our interagency and 

international partners. Sometimes agencies are limited in authority or fiscal constraints and can 

adopt a correspondingly limited outlook on what the host nation’s rule of law system includes. 

Understanding whether military rule of law efforts will be supporting or in the lead will guide the 

commander and staff in developing lines of operation or lines of effort that complement and 

reinforce partner efforts. 

Because commanders typically visualize stability and COIN operations along lines of 

effort,11rule of law operations will generally be planned as lines of effort. A line of effort links 

multiple tasks and missions using the logic of purpose – cause and effect – to focus efforts 

toward establishing operational and strategic conditions. Commanders use lines of effort to 

describe how they envision their operations creating the more intangible end state conditions. 

These lines of effort show how individual actions relate to each other and to achieving the end 

state. Lines of effort are particularly helpful to operational design when positional references to 

an enemy or adversary have little relevance, as in many stability operations, including rule of law 

operations. In operations involving many nonmilitary factors, lines of effort may be the only way 

to link tasks, effects, conditions, and the desired end state. They are a particularly valuable tool 

when used to achieve unity of effort in operations involving multinational forces and civilian 

organizations, where unity of command is elusive, if not impractical. (FM 3-0, para. 6-66) 

The rule of law practitioner should also ensure that the planning principle of nested 

concepts is followed. “Nested concepts” is a planning technique to achieve unity of purpose 

whereby each succeeding echelon’s concept of operations is embedded in the other. (FM 5-0, 

para. 1-62) Successful rule of law programs are integrated and synchronized with the programs 

of other rule of law actors in the area of concern. Consequently, this concept will require not 

only that the unit understand the rule of law concept of operations of its higher headquarters, but 

also that the unit understands the concept of rule of law operations for host nation, coalition, and 

interagency partners conducting rule of law operations in the area. The goal is unified action, 

which is the synchronization, coordination, and/or integration of the activities of governmental 

10 See Chapter III.

11 FM 3-0, supra note 8, at para 6-69. Moreover, stability operations have corresponding Department of 

State post-conflict technical sectors, see id. at paras. 3-88 – 3-95, and commanders may consider linking
 

primary stability tasks to the DOS sectors. 

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and nongovernmental entities with military operations to achieve unity of effort. (See FM 3-0, 

para 1-45) 

A critical component of the mission analysis is understanding the purpose of the mission. 

The Judge Advocate has a vital role in this process. The Judge Advocate must understand and be 

able to articulate to the staff and commander the purpose of the rule of law operations in COIN 

and stability operations. Much of this book discusses the relationship between COIN, stability 

operations, and rule of law programs, but it is important to be able to align the effort to the 

doctrinal definitions and purposes of COIN and stability operations. In COIN, host-nation forces 

and their partners operate to defeat armed resistance, reduce passive opposition, and establish or 

reestablish the host-nation government’s legitimacy.12 Legitimacy of the host-nation government 

and its legal system is key. Similarly, in stability operations the goal is a stable civil situation 

sustainable by host nation assets without foreign military forces. (FM 3-0, para 3-73) The 

objectives of the Justice and Reconciliation Sector of Stability Operations are to establish public 

order and safety and provide for social reconciliation. The host nation aims to establish selfsustaining public law and order that operates according to internationally recognized standards 

and respects human rights and freedoms. (FM 3-0, para. 3-91) 

A successful COIN strategy may include the following rule of law attributes: 

Insurgents punished in host nation courts (FM 3-24, para. D-15) 

Public perceives insurgents as criminals (FM 3-24, para. 1-13, D-15) 

Public not motivated by revenge and resentment (FM 3-24, para. 1-128) 

Former insurgents rehabilitated and not part of the fight (FM 3-24, Table 1-1) 

Host nation government seen as legitimate (FM 3-24, para. 1-123) 

As the foregoing list suggests, military rule of law practitioners will be concerned 

primarily with the criminal justice component of the rule of law environment. There is much 

more to the rule of law environment than police, courts, and prisons, however. Because a goal of 

stability operations is to establish self-sustaining public law and order, the rule of law 

practitioner should not overlook programs that will develop the rule of law culture and support 

an indigenous, self-sustaining demand for the rule of law. Such programs may include support to 

civil society groups that inform the public about legal rights, to bar associations, to groups that 

monitor the court system for accountability, and to groups that represent the under-privileged in 

the legal system. The Judge Advocate should advocate for such programs as part of the mission 

analysis. The tendency of the commander and staff may be to put such programs off until later 

phases of the operation. However, when the goal is self-sustaining public law and order, long 

term success may well be found in supporting efforts that create an indigenous demand for and 

popular investment in the rule of law rather than merely developing the institutions and capacity 

to supply the rule of law. 

Part of the mission analysis process is developing mission success criteria. (JP 5-0, page 

III-27) Although creating or enhancing the rule of law is an ongoing mission, it is important to 

identify those measures with which the command and staff can assess the progress toward the 

12 Id. at para 2-55. See also U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY (15 Dec. 

2006). 

143 Chapter VI - Planning 
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desired end state. Such assessments are done with measures of performance and measures of 

effectiveness. 

As important as understanding the mission is, selecting the correct measures of 

performance to evaluate whether the mission is succeeding is also important. Measures of 

effectiveness are criteria used to assess changes in system behavior, capability or operational 

environment that are tied to measuring the attainment of an end state, achievement of an 

objective, or creation of an effect. (JP 5-0, page III-61). Simply put, measures of performance 

address whether we are doing things right, measures of effectiveness address whether we are 

doing the right things. Measures of effectiveness typically are more subjective and may be 

difficult to quantify with regard to rule of law efforts. However, the rule of law practitioner must 

be careful to avoid allowing the commander and staff to adopt measures of performance as the 

assessment metrics for rule of law operations. The readily quantifiable measures of performance, 

also known as output indicators, such as number of judges trained, square feet of courthouse 

space built, or number of laptops computers supplied to police stations assess the efficiency of 

actions of our forces to accomplish certain tasks. The critical assessment however is not whether 

we are accomplishing those tasks, it is whether those tasks are advancing the rule of law 

environment to create the desired effects. Because legitimacy of the legal system in the minds of 

the population is a critical desired effect, some ways to assess the public’s perception of the legal 

system must be included in any measure of effectiveness in the rule of law arena. Frequently, the 

only real option is through public opinion polls, which have been used extensively in Iraq. 

The importance of choosing the correct metrics cannot be overstated. Once put in place, 

the rule of law program will “work to the metric,” meaning that an incorrect metric will 

hopelessly derail any project. Consequently, metrics should be carefully designed to serve the 

longer-term outcomes of programming – not to demonstrate short-term success. Furthermore, all 

metrics are based on an assumption – stated, or implicit – that there is a connection between what 

is being measured and the desired outcome. Since these assumptions may prove to be incorrect, 

the development of metrics should not be seen as a one-time event; rather, the metrics 

themselves should be evaluated periodically to ensure their validity and utility. 

The successful rule of law practitioner will ensure that the commander and staff complete 

the mission analysis with a thorough understanding of the rule of law challenges informed by a 

comprehensive assessment and a sound grasp of the purpose of rule of law operations. 

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Example: Rule of Law Mission Analysis 

Your division commander has received the mission to improve the rule of law in 

his AO. Intelligence resources and your communication with the host nation and 

interagency rule of law partners in the region all indicate that the popular 

perception is that the justice system and police are sectarian in their 

administration of justice. This popular perception is fueled by insurgent leaders 

and insurgent propaganda. The current state is that most of the population does 

not trust the criminal justice system, views the judges and police as controlled by 

sectarian influences, and seeks protection and justice through local militias of 

their own sect. 

The center of gravity that must be defeated is the popular perception that the 

judges are police are corrupt because they are motivated by sectarian influences 

instead of following the law. A CCIR will be developed to determine whether 

there is a factual basis for the popular perception. If there is no factual basis for 

the popular perception, then the commander and rule of law practitioner are faced 

with a public information challenge. If there is a factual basis for the popular 

perception, then the problem is more challenging. 

The staff and commander decide to assess their progress with measures of 

performance that will include the number crimes reported to the police by the sect 

not in power, and measures of effectiveness including periodic interviews with 

community and tribal leaders concerning the legitimacy of the police and courts, 

and periodic informal surveys of opinion leaders in the community. 

This example shows how the commander and staff sought to understand the 

underlying problems concerning the rule of law operational environment, 

identified a center of gravity, identified critical information needed for further 

decision making, and developed some measures that relate to their progress in 

achieving the desired rule law end state. The next step in the process is to develop 

various ways to create the desired end state. This next step is known as course of 

action development. 

c) Step 3: Developing Courses of Action 

As the result of the first two steps, the commander and staff will understand the current 

operational environment with regard to the rule of law and will understand the desired end state. 

The next step in the process is to develop various ways to get from the current condition to the 

desired end state, known as course of action (COA) development. 

Based on the commander’s guidance and the results of step 1, the staff generates options 

for COAs. A good COA will create the desired effects and end state. Brainstorming is the 

preferred technique for generating options. It requires time, imagination, and creativity, but it 

produces the widest range of choices. The staff should remain unbiased and open-minded in 

evaluating proposed options. Staff members quickly identify COAs that are not feasible due to 

factors in their functional areas. They also quickly decide if a COA can be modified to 

accomplish the requirement or should be eliminated immediately. (FM 5-0, para 3-124) 

145 Chapter VI - Planning 
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In developing COAs, staff members determine the doctrinal requirements for each type 

of operation being considered, including doctrinal tasks for subordinate units. (FM 5-0, para. 3­

125) The rule of law practitioner will be invaluable in this process. Unlike kinetic operations, 

there is no well established doctrine that informs rule of law operations. The rule of law 

practitioner must be both well-read in stability operations doctrine, COIN doctrine, and past rule 

of law programs and must be creative in devising new programs to accomplish the desired 

effects in the operational environment. 

Creative thinking is critical. Creative or innovative thinking is the kind of thinking that 

leads to new insights, novel approaches, fresh perspectives, and whole new ways of 

understanding and conceiving things. (FM 5-0, para. 2-14) Creative thinking is not a mysterious 

gift, nor does it have to be outlandish. Innovation and creative thinking are required as the 

commander and staff operating in the rule of law arena may be operating in an arena in which 

they have little training or experience. But working outside of the comfort zone encompassed by 

subject matter one has been thoroughly trained in is a requirement for all military officers, and it 

will be nothing new to your fellow staff officers. Collaboration with host nation resources and 

interagency partners is essential in brainstorming possible courses of action. 

Armed with the comprehensive situational understanding and sound grasp of the desired 

end state derived from the mission analysis, the innovative rule of law practitioner can help the 

staff in developing alternative ways to accomplish the desired effects. 

Staffs developing COAs ensure each one meets these screening criteria: 

Feasible. The unit must be able to accomplish the mission within the available time, 

space, and resources. 

Acceptable. The tactical or operational advantage gained by executing the COA must 

justify the cost in resources, especially casualties. This assessment is largely 

subjective. 

Suitable. A COA must accomplish the mission and comply with the commander’s 

planning guidance. The rule of law practitioner should ensure that the staff does not 

lose sight of the desired end state – a legal system that is perceived by the population 

to be legitimate. Therefore, it is important not to overlook public education and 

information operations components of any course of action. 

Distinguishable. Each COA must differ significantly from the others. This criterion is 

also largely subjective. 

Complete. A COA must show how: 

The decisive operation accomplishes the mission. 

Shaping operations create and preserve conditions for success of the decisive 

operation. 

Sustaining operations enable shaping and decisive operations. (FM 5-0, para. 3­

113) 

After developing COAs, the staff briefs them to the commander. A collaborative session 

may facilitate subordinate planning. The COA briefing includes: 

An updated IPB. 

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Possible enemy COAs (event templates). 

The unit mission statement. 

The commander’s and higher commanders’ intent. 

COA statements and sketches. 

The rationale for each COA, including— 

Considerations that might affect enemy COAs. 

Critical events for each COA. 

Updated facts and assumptions. 

Recommended evaluation criteria. 

After the briefing, the commander gives additional guidance. If all COAs are rejected, the 

staff begins again. If one or more of the COAs are accepted, staff members begin COA analysis. 

The commander may create a new COA by incorporating elements of one or more COAs 

developed by the staff. The staff then prepares to wargame this new COA. (FM 5-0, para. 3-148) 

d) Step 4: Course Of Action Analysis (Wargaming) 

COA analysis allows the staff to synchronize the battlefield operating systems for each 

COA and identify the COA that best accomplishes the mission. It helps the commander and staff 

to: 

Determine how to maximize the effects of combat power while protecting friendly forces 

and minimizing collateral damage. 

Further develop a visualization of the battle. 

Anticipate battlefield events. 

Determine conditions and resources required for success. 

Determine when and where to apply force capabilities. 

Focus IPB on enemy strengths and weaknesses, and the desired end state. 

Identify coordination needed to produce synchronized results. 

Determine the most flexible COA.13 

Wargaming stimulates ideas, highlights critical tasks, and provides insights that might not 

otherwise be discovered. It is a critical step in the MDMP and should be allocated more time 

than any other step. 

Wargamers need to: 

13 See FM 5-0, supra note 2, para. 3-152. 

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Remain objective, not allowing personality or their sensing of “what the commander 

wants” to influence them. They avoid defending a COA just because they personally 

developed it. 

Accurately record advantages and disadvantages of each COA as they emerge. 

Continually assess feasibility, acceptability, and suitability of each COA. If a COA fails 

any of these tests, they reject it. 

Avoid drawing premature conclusions and gathering facts to support such conclusions. 

Avoid comparing one COA with another during the wargame. This occurs during COA 

comparison. 

14 

The Judge Advocate can play an important role in the course of action analysis and 

wargaming step by ensuring that the staff avoids “groupthink.” Groupthink is a common failing 

of people or groups who work together to make decisions or solve problems. It is a barrier to 

creativity that combines habit, fear, and prejudice: 

Habit – the reluctance to change from accepted ways of doing things. 

Fear – the feeling of agitation and anxiety caused by being uneasy or apprehensive 

about: both fear of discarding the old to adopt the new and fear of being thought of as 

a fool for recommending the new. 

Prejudice – preconceived opinion formed without a rational basis or with insufficient 

knowledge. 

Groupthink refers to a mode of thinking that people engage in when they are deeply 

involved in a cohesive group. It occurs when members, striving for agreement, override their 

motivation to realistically evaluate alternative courses of action. The group makes a collective 

decision and feels good about it because all members favor the same decision. In the interest of 

unity and harmony, there is no debate or challenge to the selected solution. (FM 5-0, para. 2-16­

17) Judge Advocates have professional training that aids them in approaching problems in 

innovative ways and in expressing divergent opinions. The staff and commander will benefit 

from the Judge Advocate’s candor and analytical skill in avoiding groupthink. 

e) Step 5: Course of Action Comparison 

The COA comparison starts with all staff members analyzing and evaluating the 

advantages and disadvantages of each COA from their perspectives. Staff members each present 

their findings for the others’ consideration. Using the evaluation criteria developed before the 

wargame, the staff outlines each COA and highlighting its advantages and disadvantages. 

Comparing the strengths and weaknesses of the COAs identifies their advantages and 

disadvantages with respect to each other. The staff compares feasible COAs to identify the one 

with the highest probability of success against the most likely enemy COA and the most 

dangerous enemy COA. The selected COA should also— 

14 See id. at para 3-153. 

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Pose the minimum risk to the force and mission accomplishment. 

Place the force in the best posture for future operations. 

Provide maximum latitude for initiative by subordinates. 

Provide the most flexibility to meet unexpected threats and opportunities.15 

The rule of law practitioner provides an important function in this step of the MDMP by 

ensuring that the courses of action are evaluated critically with regard to the desired rule of law 

effects. The rule of law practitioner must be vigilant that the staff remains focused on the end 

state and does not stray away into “bricks and mortar” or other overly simplistic capacity 

building projects that are readily quantifiable and subject to logical, sequential planning but not 

decisive to addressing the underlying legitimacy challenges in the rule of law environment. 

f) Step 6: Course of Action Approval 

COA approval has three components: 

The staff recommends a COA, usually in a decision briefing. 

The commander decides which COA to approve. 

The commander issues the final planning guidance.16
 

After completing its analysis and comparison, the staff identifies its preferred COA and 

makes a recommendation. If the staff cannot reach a decision, the chief of staff/executive officer 

decides which COA to recommend. The staff then delivers a decision briefing to the commander. 

The chief of staff/executive officer highlights any changes to each COA resulting from the 

wargame. The decision briefing includes— 

The intent of the higher and next higher commanders. 

The status of the force and its components. 

The current IPB. 

The COAs considered, including— 

Assumptions used. 

Results of staff estimates. 

Summary of wargame for each COA to include critical events, modifications to 

any COA, and wargame results. 

Advantages and disadvantages (including risk) of each COA. 

The recommended COA. 

After the decision briefing, the commander selects the COA he believes will best 

accomplish the mission. After selecting a COA, the commander issues the final planning 

15 See id. at para 3-189 – 3-190. 

16 See id. at para. 3-194. 

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guidance. The final planning guidance includes a refined commander’s intent (if necessary) and 

new CCIR to support execution. 

g) Step 7: Orders Production 

The staff prepares the order or plan by turning the selected COA into a clear, concise 

concept of operations and required supporting information. The concept of operations for the 

approved COA becomes the concept of operations for the plan. 

The MDMP and Interagency/Coalition Efforts in Iraq 

In May of 2008 Multi-National Force-Iraq (MNF-I) and United States MissionIraq (USM-I) convened the 4th Annual Rule of Law Conference in Baghdad’s 

International Zone. The conference brought together over 150 attorneys, advisors, 

and other professionals working rule of law programs across the Iraqi Theater of 

Operations. The conference provided a forum for USM-I agencies, military 

personnel, United Nations, and NGOs to report on their efforts and achievements 

across the spectrum of rule of law projects. 

Military participants in the conference noted with special interest the role of 

formal military planning in the interagency / intergovernmental arena of rule of 

law programs. The detailed plans and guidance produced by MDMP is a critical 

gap in the rule of law mission. While rule of law is mentioned within the plans at 

all levels of command within the military forces, to date there has not been a 

comprehensive plan that structures the efforts and projects of the civilian agencies 

and non-governmental organizations. This gap was identified and discussed at the 

Rule of Law Conference and renewed efforts are underway to address the issue. 

4. Conclusion 

By utilizing the MDMP, the commander, staff, and rule of law practitioner analyze the 

complex rule of law environment in a systematic way that is familiar to the commander and staff. 

This planning tool establishes procedures for analyzing a mission, developing, analyzing, and 

comparing courses of action against criteria of success and each other, selecting the optimum 

course of action, and producing a plan or order. Through the MDMP, the rule of law practitioner 

can take a mission as complex and ill-defined as “ improve the rule of law in this region” and 

convert that mission into a concept of operations that represents the best way to achieve the 

desired rule of law effects. 

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Planning Rule of Law Operations Internal to the Force: 

Hypocrisy Helps the Enemy 

The primary focus of planning for rule of law operations in this section has been 

on activities external to the US forces. However, the rule of law practitioner must 

be aware of any conduct of our forces, allies, partners or contractors that will 

damage our credibility to promote the rule of law. Conduct by our forces or those 

acting with us that appear to be contrary to the rule of law will not go unnoticed 

by our host nation partners and will be exploited by our enemies. this was readily 

demonstrated by the effects of cases like Abu Ghraib on our mission in Iraq or the 

ill will created by the September 2007 shootings by US security contractors in 

Nisour Square, Baghdad. US forces must reflect the rule of law in their actions. 

Our response to crimes committed by US forces will be scrutinized by the host 

nation population as well as the international community. The investigation and 

disposition of these cases must be transparent and communicated effectively to 

the local citizenry and the world.17 

The effective rule of law practitioner will obtain the commander’s guidance on 

training to minimize the possibility of any criminal, negligent, or culturally 

insensitive acts and will plan for the mitigation of any adverse consequences 

when any such acts do occur. 

B.	 Practical Planning Considerations Specific to Rule of 

Law Operations 

Experience has shown the benefit of breaking the planning phase of rule of law missions 

into three distinct timeframes. In each of these phases, the nature of the planning will necessarily 

be different, as the conditions confronting the Judge Advocate planner will vary. Accordingly, 

this Handbook divides planning for rule of law missions into the following phases: 

• Pre-deployment (-180 to -30 days prior to deployment) 

• Initial deployment (-30 to +90 days of arrival in the area of operations) 

• Sustained deployment (+91 days to indefinite) 

There is nothing set in stone about these suggested timeframes. They will vary depending 

upon the nature of the conflict, the manner of entry into theater, the nature of the mission 

(whether occupation or permissive), and whether this is an initial entry into the area of operations 

(AO) or a follow-on rotation. If a unit is performing an initial entry into a nation with significant 

infrastructure damage, the duration of the initial deployment phase, as described below, may 

extend well beyond 90 days. If a unit is part of a follow-on rotation into a semi-stable 

environment, where Judge Advocate personnel can benefit from the experience of their 

predecessors, the duration of the initial deployment phase might be a few weeks, instead of 

months. 

17 FM 3-24, supra note 12, at 1-24. 

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Regardless of the exact duration of these planning periods, their relevance is that the 

nature of the planning for the rule of law mission and the measure of its success (metrics) varies 

significantly from phase to phase. The three phases provide a general compass to planning that 

should be considered as the mission evolves. The discussion below is to emphasize the tools 

required at each stage of planning for the rule of law mission, but is not intended to be an exact 

road map, as planning for any operation will be situation specific. 

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

Pre-deployment planning for the rule of law mission may begin before operations are 

imminent. In the case of a major natural disaster, a unit might have only days to plan before 

arriving in the theater of operations. Operations over the past two decades (Haiti, BosniaHerzegovina, Desert Storm, and Operation Iraqi Freedom (OIF)) have repeatedly shown that 

there is often a substantial period of diplomatic and other political activity that provide signals to 

the Judge Advocate that informal planning for a rule of law mission should begin well in 

advance of receipt of a warning order. Even where available time is short, as was the case with 

Operation Enduring Freedom (OEF), the principles of pre-deployment planning for the rule of 

law mission remain the same – they are simply packed into a shorter timeframe. 

a)	 Understand the Level at which you will be Operating within the Command 

Structure. 

The nature of the mission that will be assigned to rule of law practitioners will 

necessarily influence planning in the pre-deployment phase. There will be significant planning 

differences depending upon from where the JA personnel will be operating. This may be a 

centralized location at a division or joint task force headquarters, as is often the case with Judge 

Advocates from a division SJA office, versus Judge Advocates operating in a Civil Affairs (CA) 

unit, who are frequently dispersed across the breadth of the area of operations in one-person JA 

detachments. 

At the most fundamental level, knowing whether the Judge Advocate will be working in 

a centralized headquarters environment with other Judge Advocates or by him/herself with a 

tactical unit impacts planning for: 

•	 the numbers of sets of legal resources (manuals/cds, computers) that must be taken 

•	 communications capabilities (phones, email, and technical reporting channels) 

•	 chain of command issues, such as whether the solo Judge Advocate assigned to a 

provincial or other remote location works for the tactical unit commander or is a 

representative of higher headquarters co-located with the tactical unit 

b)	 Know the Foreign Legal System. 

To rebuild a legal system one must understand the legal system. This might sound like an 

obvious truism, but the fact is that many units that ultimately became responsible for restoring 

the legal system in Iraq went into the mission with very little understanding of the Iraqi civil law 

system and no copies of the Iraqi laws whatsoever.18 The pre-deployment phase provides the best 

18 LTC Craig Trebilcock, Legal Assessment of Southern Iraq, 358th Civil Affairs Brigade (2003). 

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opportunity to gain the general, but invaluable, understanding of the legal system of the nation 

where operations will occur. Understanding which organization or element within the justice 

system is supposed to do what, as well as understanding the lines of accountability, prior to 

arrival in theater will enable more effective pre-deployment planning concerning how to engage 

that system in a reform effort. 

There are several steps toward understanding the foreign legal system to consider during 

planning in the pre-deployment phase: 

Step 1. Take into account the political and historical context. This step helps identify 

events that shape the environment, such as a recent conflict or the creation of a new state. It also 

develops information on the country’s legal traditions and the origins of its current laws. 

Step 2. Understand the roles of major players and political will. This step helps 

identify the roles, resources, and interests of those who might potentially support reform as well 

as those who stand to benefit from retaining the status quo. It also guides an assessment of the 

strength of political will and options for capitalizing on it, strengthening it, or working around its 

absence. 

Step 3. Examine program options beyond the justice sector. This step broadens the 

assessment beyond the justice sector to the overall state of the polity and its legitimacy. It helps 

determine whether conditions are ripe for direct rule of law programming, or whether 

programming should support precursors to the rule of law, such as political party development or 

legislative strengthening. 

Step 4. Assess the justice sector. This step provides for a structured assessment of each 

essential element in terms of the two components of the justice sector, the legal framework and 

justice institutions. Assessments are discussed in greater detail in section C below. 

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Capitalize on USG and JA Resources 

For mature theaters, it is virtually certain that your predecessors will have 

developed a briefing on the host nation’s laws. For instance, the MNC-I rule of 

law office has a briefing available on Iraq that it has transmitted to the Rule of 

Law Program Director at the US Army Civil Affairs and Psychological 

Operations Command (USACAPOC), Ft. Bragg, for use in their RoL Conferences 

for deploying JAs.19 An obvious source of information about not only the mission 

but the context for the rule of law is the unit you are replacing. 

During contingency operations, the Staff Judge Advocate responsible for 

operations in a foreign country should develop a country law study as part of the 

staff estimate process. 

Also, the Law Library of Congress can provide assistance in this area. The Law 

Library has a librarian assigned to numerous regional law collections. In addition 

to appointments with the librarian and Judge Advocates assigned at OTJAG, the 

OTJAG-IO Pre-Deployment Preparation (PDP) Program can facilitate this 

process by obtaining copies of relevant materials and providing them to the field 

for use. 

c)	 Plan for Coordination with other Agencies Having an Interest in the Rule of 

Law Mission 

Rule of law operations in Iraq and Afghanistan have repeatedly demonstrated that rule of 

law practitioners who seek to coordinate efforts, funding, and resources with other agencies and 

organizations yield the most effective results. The Judge Advocate who tries to do everything 

himself may expend significant effort, but over the long run not significantly impact reform. It is 

frequently the case that during initial-entry into a non-permissive environment, the Judge 

Advocate will indeed be alone, with only other military operators such as Military Police and 

Civil Affairs personnel, in attempting to assess and improve justice sector operations. The nonpermissive environment makes it a virtual certainty that NGOs and IOs will not be present. 

Consequently, the practitioner will likely have to rely on other military assets during the initial 

phase of rule of law operations, and so the coordination activity must at the very least include 

other military agencies that will be extensively involved in reconstruction, such as Military 

Police, Engineers, and the G-3. Setting up a rule of law working group at the division level early 

in the planning process is an outstanding way to help ensure that rule of law and other 

reconstruction efforts will be unified ones. 

However, as hostilities come to a close other USG agencies such as DOS, USAID, DOJ, 

IOs, and NGOs will arrive in theater. Regional, state-based economic and security organizations 

such as the Gulf Cooperative Council or the Organization for Security and Cooperation in 

Europe (OSCE) may have a presence. The United Nations may, depending upon the operation, 

have a presence, as may nongovernmental agencies with an interest in human rights and justice. 

Each of these organizations is a tool and potential force multiplier for the rule of law Judge 

19 Rule of Law Lessons Learned, MNC-I Rule of Law Section, Operation Iraqi Freedom 05-07 (Dec. 10 

2006). 

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Advocate to maximize the effect of his or her efforts. Having awareness during the predeployment stage of the number and nature of such organizations, the capabilities they bring, and 

the availability of potential funding streams from these sources, will permit more meaningful 

planning for future operations during the pre-deployment phase. This knowledge will also enable 

the rule of law practitioner to exchange contact information with these other field representatives 

through the chain of command (back to the interagency and intergovernmental coordination in 

Washington) and through local organizations (like the Humanitarian Operations Center, Joint 

Interagency Coordination Group, or other similar mechanisms). 

Civil Affairs Soldiers who have been engaged in government support missions over the 

past two decades often state that they know they have reached a level of success in their 

operations when they have “worked themselves out of a job” by handing off future support 

operations to host nation, nongovernmental organizations or international organizations. In 

mission planning, the JA rule of law planner should likewise consider in planning whether 

success will be measured by continuing to oversee the successful operations of a host nation 

justice sector agency (e.g., a court) or by reaching the stage where the Judge Advocate is no 

longer needed. 

d) Priorities for Justice Sector Programming 

Because rule of law establishes conditions on which democracy depends, there are 

inherent priorities among the essential elements. Providing security while acting in ways that 

reinforce legitimacy are the highest priority because doing so establishes democratic legal 

authority and has the most immediate impact upon reducing violence. Impartiality and lack of 

evident bias are the second priority because they not only strengthen legitimacy, but also serve to 

guarantee rights. Efficiency and access are the third priority, because they improve the provision 

of justice services. These “priorities” should not be confused with mandatory sequencing. 

Country conditions, revealed through the assessment, may not permit addressing the highest 

priorities first. Nevertheless, the links to the rule of law that these priorities represent are 

important to keep in mind. When addressing a lower priority first, programming should set the 

stage for later work at a higher level. 

e) Anticipate and Plan for Linguist Assets 

Be aware of the need for translators and interpreters, including awareness that within a 

single country several languages or dialects may be spoken. In planning for and working with 

linguists, always be aware of cultural/sectarian divisions within the AO that might impact the 

effectiveness of your translator. For example, a Serbian born translator who speaks SerboCroatian might not be effective in interviewing Croat civilians about their views on legal reform 

due to long-term ethnic tensions between the Serbs and Croats. Often a rule of law team will not 

have their free choice of translator assets, but awareness that the cultural/social background of 

your translators may impact the level of their effectiveness and your ability to gather information 

essential for mission success is important to consider in planning the scope of the team’s 

activities. Finally, remember that a linguist with a lay background offers different capabilities 

than one with a legal background or training. 

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f)	 Tactical Considerations 

The scope of this Handbook is not to comprehensively discuss the myriad tactical 

equipment issues that will affect the daily lives of those engaged in the rule of law mission. 

However, the reality on the ground is often that those engaged in rule of law missions must be 

mobile, able to communicate across distances ranging from a few kilometers to dozens of 

kilometers, and must be competent to provide much of their own security. The stereotype of the 

JA officer bearing only a holstered sidearm hopefully has finally been put to rest in OIF and 

OEF. 

A rule of law team that deploys without the ability to defend itself during convoy 

operations is a team that will be largely ineffective in a non-permissive environment, as they will 

be unable to move beyond the wire of the base camp out of which they operate. Accordingly, 

decisions made at home station about weapons, training on handling of weapons, and other 

tactical considerations may have a large impact on subsequent success in coordinating a rule of 

law mission once in theater. 

Judge Advocates have historically been hampered in movement within an area of 

operations by a lack of organic transportation capability. Civil Affairs units, in contrast, often 

deploy with their own transportation capability. If possible, find out who will be the CA assets in 

your area during the period of your deployment and make preliminary contacts (with the 

battalion or brigade International Law Officer) to build rapport for the future when you may need 

to coordinate convoy operations with CA Soldiers to move about within the AO. 

g)	 Conduct Briefings to Make Commanders Aware of Rule of Law Impact on 

Mission Success 

Judge Advocates can shape their battlefield just as commanders can. One way this is 

done in the rule of law context is by educating commanders, operations officers, and staff 

planners prior to deployment upon how rule of law issues will impact security and stability 

following the end of high intensity conflict. One cannot presume that war fighting battalion and 

brigade commanders will appreciate how something as intangible as the foreign citizenry’s 

attitude toward their legal institutions will have a direct impact upon the commander’s ability to 

secure and stabilize his assigned geographic area. Pre-deployment briefings that succinctly 

educate how the rule of law has operational benefits will assist your commander in including rule 

of law issues in his planning priorities once in theater. Judge Advocates must understand how 

rule of law nests within the elements of stability operations and COIN in order to make these 

briefings relevant for commanders and their staff. Operating courts, effective police, quiet 

prisons, and the reduction of street violence reduce operational effort substantially, and 

familiarizing the commander with the impact of the rule of law will help the commander 

appreciate the need to make the rule of law a planning and resource priority. 

h)	 Pre-Deployment Resources 

Begin developing a library of local national legal materials during the pre-deployment 

stage, which will continue to grow and expand upon reaching the area of operations. The core 

materials should include (in English): 

the foreign state’s constitution 

criminal code 

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criminal procedure code 

civil code 

civil procedure code 

administrative law 

citizenship law 

property laws 

laws on organization of the government in general and courts in particular 

laws on organization of the police and prisons 

This effort should begin with the DOS resources dedicated to the host nation, such as the 

DOS country team. However, if regular channels are unable to provide the necessary materials, 

these resources may often be found in English translation through: 

The Library of Congress 

law school libraries (domestic and foreign) 

large civilian law firms20 

In addition to obtaining the black letter law of the concerned state, the JA rule of law 

planner can avail himself of years of experience in post-conflict rule of law planning by other 

nonmilitary agencies including: 

USAID (State Department) Justice/Rule of Law guides 

Office of the United Nations High Commissioner for Human Rights (www.ohchr.org) 

US Department of State Regional and Global Bureaus 

US Embassy Country teams in the expected area(s) of operation 

The ability with which the Judge Advocate preparing for a rule of law mission is able to 

openly solicit information on a foreign nation’s legal system is necessarily tied to operational 

security considerations. 

20 Firms engaged in international business may have treaties/civil codes for foreign nations. Many such 

firms also have Judge Advocate reservists or former Judge Advocates employed who are often willing to 

be of assistance to direct you to source materials. 

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The Pre-Deployment Preparation (PDP) Program 

In January 2009, The Judge Advocate General established the Pre-Deployment 

Preparation (PDP) Program to identify and coordinate resources for deploying 

Judge Advocates, paralegals, and warrant officers. The program, which falls 

under the International and Operational Law Division of OTJAG, is a source of 

invaluable information in all aspects of deployed legal practice, including rule of 

law. Deploying Judge Advocates are encouraged to contact the PDP Program for 

timely information on how rule of law and other OPLAW missions are being 

carried out downrange.21 

i) Pre-Deployment Questions 

Because of the variety of situations in which Judge Advocates will confront rule of law 

issues, it is impossible to provide a roadmap to rule of law. At the same time, the sheer number 

of considerations can be overwhelming. Below is a list of questions that is the result of several 

sessions, both during a conference on the rule of law held at Georgetown Law Center in 

Washington, D.C.22 and during the 2009 Rule of Law Short Course held at The Judge Advocate 

General’s Legal Center and School.23 What follows cannot be comprehensive, but it does 

provide a starting place for those facing rule of law assignments to ask questions before they are 

in theater and is based on the experience of many who have deployed. This list is designed to 

uncover information about rule of law programs more so than the nature of the host nation’s law, 

and because it was developed in 2009, during a time at which most military rule of law 

deployments were to mature theaters, it heavily emphasizes gaining information on existing 

programs, which will not be the case for initial entry deployments, such as OIF-1. We have 

included some substantive legal questions, but that topic is given more detailed coverage in the 

sample Assessment Framework contained on pp. 176–181 below. 

Host Nation (HN) Rule of Law Structure 

What is the nature of the formal legal system in place? 

Do they follow a civil or common law model? 

To what degree are the rule of law effects described in FM 3-07 realized under the 

HN system as it is operating? 

Where can English copies of the HN’s laws be obtained? 

What does the current JA wish s/he would have brought with him/her; what 

resources are needed? 

What is the governmental structure for rule of law institutions in host nation? 

(i.e. What HN agencies control which elements of the rule of law?) 

21 The PDP Program may be contacted at pdp@conus.army.mil or (703)588-8459. 

22 The Fourth Annual Samuel Dash Conference on Human Rights: Rule of Law in the Context of Military
 

Interventions, March 19-20, 2009. 

23 Suggestions for additions or deletions are welcome. Please email them to the Center for Law and 

Military Operations’ email addresses listed at the front of this book. 

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What contacts exist with and for the local legal system? 

What is the role of traditional / informal dispute resolution systems? 

Does the traditional system differ from the formal host nation legal structure and
 

law? 

Is there a local bar association / legal centers / legal clinics? 

Who are the local officials with whom you meet? 

What is the HN legal training infrastructure? Are there any law schools? 

HN Criminal Justice 

What is the capacity of the HN criminal justice system? 

Is there a police force? What is the structure of the police force? Does the HN 

military have a role in law enforcement? Is there a secret police? 

How do evidentiary rules differ from the US model? How are hearings 

conducted? 

Plans 

What is the higher headquarters plan? 

Get the plan for the next two higher military headquarters (e.g. Joint Campaign 

Plan) and focus on the intent. 

What is the host nation plan? (For example, consider the Afghan National 

Development Strategy) 

What is the USG plan? (Focus on obtaining plans from interagency personnel to 

include DOS / USAID / DOJ) 

Do the above referenced plans include rule of law? 

Is there a Rule of Law Annex? 

Are there any specific FRAGOs that address or modify the base order or plan? 

What are the foundation documents for the intervention?
 

What is the authority for US military presence in the host nation? 

Are there any applicable UNSCRs? 

Are there any international agreements (e.g. SOFA)?
 

What are the significant planned events in the coming year? 

What are the critical events in the USG plan? 

Are there significant HN events that are not part of the plan (e.g. elections)? 

Rule of Law and Detention 

Who is operating detention facilities, US or HN forces (or others)? 

Are there detainee facilities available to the US, where are they located and what 

condition are they in? 

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Are there jails? Do they need to be expanded? 

Under what authority are detentions being conducted and how can a copy of that 

authority be obtained? 

Who is responsible for apprehending and detaining HN nationals? 

Projects 

(Past) What rule of law projects has your unit attempted or completed?
 

What plans were successful? 

Why did projects fail?
 

(Current) What rule of law projects are currently going on? 

What is the status of the projects? 

Who has the lead for each project? 

What is the transition plan? 

What is the estimated completion date for the project? 

What are the next steps that need to be planned, funded, or executed to complete 

each project? 

(Future) What projects are you planning?
 

What are the next steps in those plans?
 

What projects do you anticipate transitioning to my unit? 

What are the fiscal authorities (to the extent they differ from the standard ones) used for 

rule of law? 

Are there any formats necessary to request a project? 

What is the process for obtaining approval? 

Structure 

What is the rule of law coordination structure? 

What is the structure among military units? 

What is the relationship horizontal relationship between military and civilian rule 

of law practitioners? 

What is the relationship vertically (two HQ up) between military and civilian rule 

of law practitioners? 

How does information flow along these channels?
 

Is there a PRT or ePRT in the area? 

Do the rule of law practitioners hold meetings?
 

What is the frequency of these meetings?
 

Where are these meeting held? 

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Who attends these meetings?
 

Is there a briefing responsibility for the JA? If so, what is the format for the
 

briefing responsibility? 

Who, practically, is calling the shots in rule of law and how does that flow work? 

What information is regularly requested and collected from you and by whom? 

What other USG agencies are currently in your sector doing rule of law? 

What other countries are in place, what is their mission? 

What NGOs are in place? 

What foreign government agencies are in place? 

What IOs are in place? 

What projects do these agencies have ongoing? (What contractors are the various 

agencies using to identify them with agency?) 

USAID 

INL 

DOJ/ICITAP 

DOJ/OPDAT 

DEA 

US Marshals 

ATF 

FBI 

US Embassy 

NGOs 

IOs 

USIP 

UN 

Rule of Law POCs 

name / email 

location / agency 

phone numbers 

Collect the above information for all of the agencies listed above under the 

structure questions. 

Is there a HN lawyer or Bilingual Bicultural Advisor (BBA) associated with your 

unit? 

Who is the Contracting Officer at the higher headquarters? 

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Current assessment 

Obtain a copy of the current rule of law assessment. 

What are the metrics currently being used for rule of law? 

Are the metrics effective? 

Some sources outside home organizations that can be consulted in answering many 

questions about the culture, society, and laws of many nations and the law applicable to US 

operations in many countries: 

Center for Law and Military Operations 

International and Operational Law Dept., The Judge Advocate General’s Legal 

Center and School 

CIA World Factbook 

DOS country desk 

USAID website 

Subject-matter experts at universities, USMA, TJAGLCS, etc. 

Law libraries with international collections 

Comparative law review articles 

US Embassy FAO 

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

The initial deployment period begins prior to arrival in the country where operations will 

occur. Several weeks of this time is often spent in mobilization stations or intermediate staging 

bases (ISBs), where access to the same planning resources that were available at the home station 

diminishes. 

The period from -30 days before arrival (D day) in the host nation is often occupied with 

the logistical details of mobilizing. Soldier Readiness Processing, preparing equipment for 

shipment, medical screening, personal issues (particularly for reservists wrapping up civilian 

commitments) and countless mobilization administrative requirements will render significant 

planning for the rule of law mission difficult in the -30 to D day timeframe. Accordingly, it is 

unrealistic to consider the rule of law pre-deployment planning window to run up to the point at 

which operations begin. While plans may always be tweaked to some extent at the last minute, 

the plan that the rule of law practitioner has at 30 days prior to arrival in country will largely be 

the plan on arrival at the ISB. 

During transition through an ISB,24 reliable information concerning current developments 

within the host nation will be haphazard at best. The S2 section of the ISB may be a resource for 

current information that will allow revisions to planning during the initial deployment period. 

However, while a unit transitions though an ISB, the focus often remains upon movement issues 

and the tactical preparation for entry into the area of operations. 

24 E.g., Hungary for Joint Endeavor; Saudi Arabia for Desert Storm; Kuwait for OIF. 

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Upon arrival in the area of operations, the planning cycle again goes into high gear. 

Frequently, the nature of the expected assignment changes upon arrival, and command and 

reporting relationships anticipated during the pre-deployment stage are altered to meet the reality 

on the ground. Further, and most significantly, the rule of law team planners now come into 

contact for the first time with the infrastructure and personnel (country nationals, coalition allies, 

other USG agencies, NGOs, and IOs) with whom they will be directly conducting the rule of law 

operation. There is a veritable hose-feeding of new information available within a very short 

period of time that frequently renders portions of the pre-deployment plan irrelevant, or at a 

minimum, in need of major revision. This phase of planning requires an immediate and current 

assessment of the host nation’s legal system. 

Upon arrival in the host nation, the JA rule of law practitioner will begin the initial 

hands-on work of restoring the rule of law. Every day, through that on-the-ground experience, 

the Judge Advocate will in turn gain more information and insight into the workings of the host 

nation’s legal system, and thereby will be creating the planning foundation from which sustained 

deployment planning will begin to develop. 

The Nature of Initial Deployment Planning. 

The action plan during the initial deployment phase: 

Identify short-term goals, activities, and strategies to provide quick successes that will 

generate political support in post-conflict settings where conditions are evolving. 

Assign responsibilities, designate timelines, and provide performance benchmarks for 

both the initial deployment phase and the longer term sustained deployment phase. 

a) Provide for Small, Early Successes in the Rule of Law Operation 

In the initial days following the close of armed conflict or on the heels a natural disaster, 

initial perceptions are extremely important to securing the confidence and support of the foreign 

population. The most intelligent, ambitious, and strategically oriented plan to restore the rule of 

law may quickly become irrelevant unless some simple “quick wins” are front-loaded into the 

plan to create an atmosphere of progress and a return to normalcy. 

Early Successes in OIF-1 

In southern Iraq during OIF-1, many of the major provincial courthouses suffered 

damage during looting by local nationals following the fall of Saddam Hussein. 

While it would take months to repair the courthouses, merely cleaning up the 

broken glass and garbage and reopening the doors of those facilities so local 

nationals could come ask questions created the first fledgling appearance of a 

return to normalcy, which bought time in the public’s attitudes for more ambitious 

projects to occur. Also, many outlying magistrate level courts did not suffer 

significant damage at all. These courts were the first to resume operation, creating 

a “quick win” that sent a message to the locals that there was once again a legal 

system in operation. 

There will be many difficult and time intensive tasks that must be accomplished before 

the rule of law is restored in a devastated country. In your planning priorities, front-load a few 

quick and simple tasks to build rapport and confidence with the locals. The intent is not to 

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perform a superficial or meaningless task, but to quickly defuse flash points for renewed 

violence by demonstrating some level of justice mechanisms are functioning within the society at 

the earliest opportunity. Be prepared to use these kinds of projects throughout the operational 

effort in order to maintain momentum and continually reinforce positive perceptions. 

b) Create Mechanisms for Locals to positively Interface with their legal system 

Strive to increase the opportunities for the people to access and see transparency in the 

rule of law in order to foster popular demand for and investment in the rule of law. In many 

authoritarian states, the judicial system and the police are tools for a regime to keep the 

population under control. The laws are often unknown to the man in the street and being in a 

courthouse or police station is a moment of terror, not an opportunity to learn about their 

government. By planning mechanisms for positive interaction, such as manning an “information 

table” staffed by local government employees or creating informational flyers, the legal system 

can be made more transparent and thereby trustworthy. Merely posting copies of laws or changes 

to the law in the native language in a publicly accessible location can be a positive step in 

creating an atmosphere where the citizens begin to believe they have a meaningful role in their 

legal system. 

c) Monitor and Mentor Local Officials and Professionals 

Particularly in an occupation environment, the physical presence of a JA rule of law 

practitioner in almost daily contact with local justice officials is necessary for progress toward 

the rule of law to occur. A system that has been historically politicized or corrupt will not readily 

change or improve where contact with the US Judge Advocate is sporadic. Frequent, in-person 

contact, in the form of oversight, mentoring, and instruction is absolutely necessary to make any 

change in the system. 

The Resilience of Old Practices in Iraq 

In OIF-1, Iraqi judges would frequently and enthusiastically accept all of the 

guidance or instructions from Coalition Judge Advocates up until the moment the 

Judge Advocate departed the courthouse facility. They then immediately returned 

to doing business in the way that was familiar to them, including permitting proBaathist judges who had been dismissed by the Coalition to sneak back onto the 

courthouse and occupy their former offices. It required continuous physical 

presence by Judge Advocates in the courthouse to make change take root. 

d) Plan Security for Justice Sector Personnel 

Foreign judges who have survived under an authoritarian, corrupt, or politicized legal 

system will not readily embrace the more democratic traditions of the rule of law if it means their 

death at the hands of those who have a vested interest in seeing judicial reform fail. The success 

of the rule of law mission depends upon judicial personnel being secure, so they need to be 

protected in the same manner that any other mission essential asset is protected. While the point 

may seem superficially obvious, protection of judges is frequently a low to nonexistent priority 

in rule of law efforts following directly on the heels of major combat operations. 

Several years after our initial entry into Iraq and Afghanistan, many rule of law projects 

are currently being undertaken to establish secure “major crimes courts,” an effort to provide the 

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security to the judicial branch that should be provided immediately upon US forces taking over 

the role of security provider. 

Protection of Judges in Early Rule of Law Efforts in Iraq 

Lack of funding and personnel was most often cited by the Coalition Provisional 

Authority as a reason for leaving Iraqi judges, who were cooperating with the 

coalition, to protect themselves from anti-coalition elements. The consequence of 

this lack of security planning was the subsequent murder of many pro-coalition 

Iraqi judges and their family members, including the Chief Judge of Najaf, by 

criminal and insurgent forces. The result was a chilling effect on other Iraqi 

judges and their willingness to embrace rule of law reforms.25 

e) “Plan B” 

On the battlefield, communications are frequently unreliable and operational 

contingencies arise rapidly. Therefore, it is critical to not only have a plan for operations in cases 

in which the rule of law team is in regular contact with higher headquarters, but also to have a 

back-up plan of what to do if operational contingencies and limitations on communications gear 

render the team unable to communicate on a regular basis. 

f) Coordinate with NGOs/IOs, but Recognize their Limitations. 

Because they are plentiful and their capabilities are frequently unknown, it is easy to 

become overly optimistic in reliance during planning upon expected support from IOs and 

NGOs. Such organizations are frequently either unable or unwilling to maintain a presence in 

post-conflict AOs, especially those subject to active insurgencies. For instance, many IOs that 

had begun reconstruction assistance in Iraq withdrew in 2003 after the UN headquarters in 

Baghdad was car bombed. Any plan for the initial deployment period should be realistically 

premised upon the capability of the unit to accomplish goals without outside agency assistance. 

If additional outside support becomes available, incorporate it into the existing plans, but it is 

important for the deployed Judge Advocate to remain cautious of building the foundation of the 

rule of law mission during the initial deployment stage upon civilian resources that may arrive 

late or not materialize at all due to a non-permissive environment. 

3. Sustained Deployment Planning (+91 to indefinite) 

The necessary focus for rule of law planners during the initial deployment stage is on the 

tangible infrastructure, such as the existence and operating condition of courthouses, police 

stations, prisons, and upon the availability of personnel. If one does not have the physical tools 

and personnel to implement plans, the more sophisticated aspects of the rule of law mission 

cannot be accomplished. 

However, it is important to recognize that, as the rule of law mission enters the sustained 

deployment phase, planning, assessments, and metrics that continue to focus primarily upon 

tangible resources like infrastructure and do not progress to a more complex, effects-oriented 

understanding of the rule of law mission, will miss the ultimate goal of creating a system of law 

25 LTC Craig Trebilcock, Justice Under Fire, ARMY LAW. (Nov. 2006). 

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that is viewed as legitimate, relevant, and trustworthy in the eyes of the local population. Built 

upon the assessment process discussed in section VI.C below, a well-conceived plan during the 

sustained deployment phase should reflect a vision of justice (a vision that will be determined at 

the highest levels) and present a plan to achieve that end state. A tyrannical and unjust legal 

system may be well-funded by a despot and have significant institutional resources. Such an 

illegitimate legal system, viewed purely through the lens of infrastructure metrics, might well 

yield superficially impressive statistics concerning number of courthouses operating, the number 

of judges hearing cases, and the number of cases being adjudicated. All of the standing court 

buildings in a nation mean little to the stability operations mission, however, if the citizenry does 

not seek to access the system to resolve grievances and instead, due to mistrust, continues to rely 

upon violence in the streets for resolving disputes. 

The concept of the rule of law within a society is an intangible that the infrastructure 

metrics, so important during the initial deployment phase, do not capture. Accordingly, the savvy 

rule of law planner must recognize when it is time for the mission to evolve from the 

infrastructure-focused initial deployment phase to the effects-focused sustained deployment 

phase. Failure to recognize the need for transition in planning can lead to a cycle of repeatedly 

counting and reporting of the number of operating courthouses, etc., while failing to qualitatively 

analyze whether the existence of those facilities is making a positive impact upon the perceived 

legitimacy of the legal system in the eyes of the population. 

The narrow focus that necessarily controls the initial phase of a rule of law 

mission must evolve into a broad-based, effects-driven plan that considers both 

justice and political factors within a society in order to have long-term success in 

establishing the rule of law.26 

As such, the rule of law planner must recognize that the nature of planning will 

necessarily become more sophisticated and complex from a social and political viewpoint during 

the sustained deployment phase, even as the emergency conditions that dominated the initial 

deployment phase (rebuilding of destroyed infrastructure, for example) are ameliorated. 

Rule of Law Planning Objectives 

Each rule of law mission will have differing needs and priorities due to the unique nature 

of the society in which it occurs, including the history and legal traditions of that culture. 

However, in creating a sustained deployment plan, rule of law practitioners should consider 

whether the following actions, which have yielded success in prior operations, will positively 

impact current mission objectives: 

Law school curriculum reform. 

The establishment of community based legal services clinics sponsored by local bar 

associations or law schools to provide legal help to the indigent. 

Creating or strengthening professional associations for attorneys and judges that provide 

instruction on issues supportive of the rule of law. 

26 See Rachel Kleinfeld, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW 

ABROAD: IN SEARCH OF KNOWLEDGE 31, 61-62 (Thomas Corothers ed., 2006). 

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Attendance at international or regional legal conferences for judges and leaders in the 

legal system that will expose them to international norms of justice. 

Seek support for legal resources such as books and equipment from friendly neighboring 

countries that have a vested interest in restoration of security and stability on their 

border. For example, the Kuwait Government sponsored a Humanitarian Operations 

Center (HOC) in Kuwait City during OIF-1 that provided support to print and 

distribute the Iraqi laws and procedural codes, as many of the hard copy Iraqi 

resources for the law had been destroyed during looting. 

Encourage coalition building between host nation government legal organizations and 

law-related NGOs. For example, the American Bar Association conducts rule of law 

programs in many developing countries, including several former Soviet republics. 

Develop meaningful oversight mechanisms, such as ombudsman offices or judicial/police 

inspection offices to discourage corruption or misuse of government resources for 

private gain.27 

Consider crime prevention, with community involvement in problem solving, planning, 

and implementation, as an effective way to reform police. Civilian policing programs 

reorient the police away from a focus on state security (protecting a regime) to 

personal security (protecting the average citizen). 

Disarmament/weapons buyback programs. 

Constitutional drafting processes. 

Evaluation of pay scales for judicial and other legal system personnel. Underpaid 

officials may be more susceptible to corruption. 

Oversight and citizen awareness of court programs, including public awareness programs 

and judicial outreach and education programs designed to familiarize citizens with the 

work of the courts. Citizens that understand the process can become an advocate for 

the legitimacy of the judicial branch. 

Interim Measures 

Immediate interim measures are often needed to jump-start a criminal justice system in 

the wake of widespread violence. When short-term measures are used, they should, if at all 

possible, be performed under a mantle of authority consistent with the preexisting criminal code. 

It will be easier to move to longer term reform if the emergency measures initially relied upon 

have some grounding in the host nation law. Adherence to a legal code at each step of the rule of 

law reform process strengthens, rather than undermines, the legitimacy of actions in the eyes of 

the population. 

27 Particular care needs to be exercised in setting up oversight organizations, since they can themselves 

become corrupt and improperly use their oversight positions as a platform from which to exert a coercive 

or corrupting influence over the courts. 

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C.	 Practical Approaches for Conducting Assessments within 

Rule of Law Operations 

An assessment is the factual foundation upon which effective planning for the rule of law 

mission occurs. It is a study of conditions existing within the area of operations at any given 

time. Civil Affairs officers often generate assessments of a foreign nation’s courts, prosecutors, 

police, and detention facilities as well as the public health capability, agriculture, economics, 

government capabilities, and utilities in developing plans to assist in stabilizing an area. The 

Judge Advocate engaged in the rule of law mission must become comfortable with creating and 

reviewing assessments of foreign nations’ legal systems, including courts, private legal 

organizations, police, and prisons. An assessment may be informal or formal in nature, ranging 

from a couple of pages of hastily created observations upon initial entry into an area of 

operations to thorough studies that are dozens of pages long during the sustained deployment 

phase. 

Assessments are a living document that should always be evolving to reflect changing 

conditions on the ground. If assessments are not updated on a regular basis to reflect changes in 

the country’s legal system, planning will likewise be out-of-step with the reality on the ground. 

A current and accurate assessment assists in keeping the focus upon whether the actions being 

taken in pursuit of establishing the rule of law are making a difference. 

Too often, mission activities and priorities are established without the benefit of a 

systematic assessment that looks at all elements, their context, and options. In the absence of 

such an assessment, tools become ends unto themselves. Example: A JA planner could plan and 

spend substantial funds and effort creating a sophisticated plan of legal instruction for judges in a 

particular province. Such an initiative might well look impressive in reports to higher authority. 

But, if the assessment reveals that lack of security and lack of funding are causing those 

provincial courts to limit operations, the legal training mission might be better delayed until, 

after the more immediate needs of security and funding are provided. 

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Assessment Fatigue and Assessment Coordination 

Many redeploying JAs have identified “assessment fatigue” – repeated 

assessments from different agencies or multiple levels of headquarters – as a 

major problem in conducting development operations. Multiple assessments can 

result in various agencies gathering slightly different information that does not 

allow them to synchronize their activities. Further, when different USG agencies 

ask for duplicative or similar information, it demonstrates to their HN government 

counterparts that there is no single plan or coordination in rule of law efforts. 

When HN personnel conduct their relationship with the USG through a particular 

individual (in the rule of law arena, frequently a PRT rule of law advisor or 

Brigade Judge Advocate), multiple confusing assessments can erode the 

professional and personal trust so essential to successful development programs. 

Consequently, it is critical to coordinate assessments with all levels and agencies 

operating in the rule of law arena and to the extent possible, rely on information 

already collected; each new assessment imposes costs, both seen and unseen, on 

the rule of law program. Similarly, anyone deploying to a theater with an ongoing 

rule of law program should become aware of the existing assessments before 

devising new ones. 

Mirroring the planning stages discussed above, there are three major time junctures 

where assessments will need to occur – Pre-deployment, Initial Deployment, and Sustained 

Deployment. 

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

Assessments during the pre-deployment stage should focus upon general country 

conditions including legal institutions, the nature of the disruption that has led to the absence of 

the rule of law, the geographic area and characteristics of the AO in which the rule of law team 

will operate, and the major players and trends impacting the legal institutions of the nation that 

will be the subject of the rule of law mission. 

If a unit is fortunate enough to be following a predecessor into the theater of operations, it 

should seek to benefit from the predecessor’s experience by obtaining its assessments while still 

at home station. However, the ability of the newly deploying unit to conduct its own highly 

detailed assessments is necessarily constrained by the fact it is not in immediate contact with the 

situation on the ground. As such, JA planners preparing to deploy for a rule of law mission 

should recognize that, while pre-deployment planning is invaluable in order to be prepared to 

engage in the mission as soon as possible, the process has limitations. Attempting to engage in 

too highly detailed an assessment from home station may consume energy better focused on 

other aspects of pre-deployment planning. 

a) Assess the History and Traditions of the Legal System 

One critical but often overlooked contextual factor is the tradition on which a country’s 

legal system was founded. That tradition affects the basic structural arrangements and functions 

of the judiciary and related institutions. For example, judiciaries in some civil law systems are, or 

169 Chapter VI - Planning 
 

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may recently have been, part of the executive branch, and dependent upon the ministry of justice. 

The prosecutor may have a very dominant or very weak role compared with that of the judge.28 

Although structural arrangements have changed over the years in most civil law countries to 

enhance judicial independence, they often still differ in fundamental respects from those found in 

common law countries. In most cases, countries considering structural reforms will look to other 

countries with a similar legal tradition for models.29 Accordingly, one might look to French legal 

reforms as a model for progress toward the rule of law in a former French colony, as opposed to 

relying upon the British/US common law tradition. 

b) Understand the Roles of Major Players and Political Will 

This step develops information on the roles, resources, and interests of leaders and others 

whose support is necessary for rule of law reforms. Those working within justice sector 

institutions, the rank and file as well as the leadership, will always be important actors. They can 

either support a reform program or sabotage it. Other bureaucrats and political figures may also 

have a significant role that needs to be understood, such as a ministry of finance that frequently 

controls the funds necessary for justice sector institutions to operate. During pre-deployment, the 

ability to gather detailed information about important, but lower level players within the foreign 

nation’s bureaucracy may be limited, especially if the mission is a non-permissive initial entry. 

However, as a theater becomes more mature and follow-on rotations begin, coordination with 

predecessor units will provide this information as well. 

In addition, major players may exist outside of the government bureaucracy. These can 

include tribal or religious leaders who engage in informal justice systems, NGO and IO staffers, 

and neighboring foreign officials with an interest in the progress toward the rule of law of their 

neighbor. It is virtually inevitable that the quality of specific information available to the rule of 

law planner will increase with arrival in the area of operations. Accordingly, more suggestions 

concerning the types of players to include within an assessment continues in the initial 

deployment phase below. The importance of the pre-deployment assessment is that it enables the 

subsequent, more detailed information gained in-country to be placed into a broader context and 

lessens the time involved in assimilating that information into a usable resource once the unit hits 

the ground. 

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

Assessments during the initial deployment stage will take on a greater level of detail than 

in the pre-deployment stage. For example rather than a general study and list of names, titles, and 

relationships, which was adequate at home station, the Judge Advocate must now know exactly 

how to find and communicate with these personnel, including the various commercial numbers, 

email addresses, and addresses or grid coordinates where they can be located. 

28 The Latin American civil law tradition features a strong investigative judge and a weak prosecutor; by
 

contrast, under communist legal systems, the prosecutor (or procuracy) completely dominated procedures. 

Reforms in both regions have sought to bring about greater balance in both roles while respecting other 

aspects of the civil law tradition. 

29 USAID, GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE RULE OF LAW STRATEGIC FRAMEWORK 

12 (2008). 

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a) Identify Who the Players Are 

Initial assessments should include contact information for: 

Judges 

Court clerks and administrative personnel (who make the judicial system work) 

Law enforcement officers 

Prosecutors and defense counsel 

Private attorneys (including bar association or legal union leaders) 

Religious leaders and other core opinion makers (who may have an influential 

role upon the local population and its perception of the law) 

Prison and jail officials 

Police academies 

Judicial training centers 

Coalition partners and host nation militia exercising police powers 

In addition to identifying the national bureaucrats, officials, and staff, the assessment 

needs to analyze whether legal institutions (including police, courts, and prisons) have the 

personnel, resources, and systems to handle the current and near-future caseload. The most 

ambitious plans for reform can be undermined by the simple fact that the host nation personnel 

needed to perform the tasks are not available due to pre-war understaffing, civilian casualties, or 

refugee movements. 

Engage Host Nation Judicial Hierarchy 

Initial site visits should focus on identifying and meeting key judicial personnel 

and to conduct a visual assessment of the physical structure. When meeting with 

the local judicial officials, try to develop an understanding of the organizational 

structure of the court. Initial visits can be used to explore the inter-relationship of 

the courts such as the hierarchy of judges, the supervision of lower court 

chambers, the appellate process and the administrative functions of the court such 

as the scheduling of cases and the management of court records and dockets. 

Follow on efforts should be coordinated to the extent possible with the chief or 

senior judge of the court. This coordination will demonstrate proper respect for 

the senior judge. Further, you can request that the judge inform lower judges and 

their staff that you will be visiting their chambers. Absent such coordination, 

some lower chamber judges may be resistant to meeting at all unless they are 

confident that their superiors are aware of the meeting. 

Other than the host nation personnel carrying out the justice mission on a daily basis, 

external organizations will also impact justice reform. Coordination with such entities will often 

bring additional funding, personnel, or other resources to supplement military efforts. 

Accordingly, an initial assessment of the justice sector should include a complete listing of: 

NGOs (e.g., human rights organizations, national bar associations) 

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IOs (e.g., United Nations, ICRC) 

Victim’s associations 

Coalition partners 

Educational institutions, especially law schools 

Other host government officials who impact rule of law issues (e.g., interior ministry, 

finance ministry) 

Neighboring country agencies and personnel with a positive interest in rule of law issues 

in the AO 

USG civilian personnel acting in a supporting or oversight capacity with US military 

forces 

Media organizations 

All such listings should include when, where, and how can these personnel be contacted by 

name, addresses, grid coordinate, phone & fax numbers, and email. 

An assessment is not merely a list of agency and personnel contacts. An assessment 

should provide information and analysis of the capabilities and inter-relationships of the various 

participants in the rule of law process. It should also assess for agencies and personnel: 

What influences are their personnel subject to? (positive and negative) 

Where do their loyalties lay? (tribal, ethnic, religious, bureaucratic, financial) 

Where do their obligations lay? (tribal, ethnic, religious, bureaucratic affiliations, 

financial) 

What influences adverse to establishing the rule of law exist? (corruption, poverty, 

foreign influences, crime, fear, insurgency, lack of education) 

b) What are the Capabilities and Needs on the Ground? 

An initial assessment should also reveal what capabilities and tools are available within 

the host nation to conduct justice sector operations and reform. Such an assessment should 

reveal: 

The number and physical capacity of courts, law enforcement & detention facilities – by 

number, location (grid), and an assessment of structural condition. 

The status of supplies and equipment, if any – furniture, office equipment and supplies, 

utilities, legal texts, including both materials already in place and those being brought 

by other agencies. 

Be aware that the mere existence of equipment without a plan for how to utilize it 

effectively in support of rule of law operation is not necessarily a positive or relevant factor the 

rule of law mission. Donor nations and organizations often want to contribute what they have, 

rather than what the distressed country actually needs. 

The Judge Advocate conducting the rule of law assessment must rely upon his own 

judgment and expertise, as well in culling through requests for assistance from host nation 

officials. 

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c)	 Assess who Controls Funding in the Host Government 

Justice agencies will not continue to operate without funds to pay staff and judges or to 

replace destroyed equipment. The rule of law Judge Advocate must become familiar with the 

local nations budget process and allotments, accounting procedures, and where the choke points 

exist within the bureaucracy that may delay funds from reaching the agencies that need them. 

There should also be an assessment as to whether preconditions exist to access host 

nation funds, which might reveal corruption controlling the process. 

d)	 Assess who has Custody of Prior Legal (criminal, civil judgments), Property, 

and Vital (marriage, divorce, births, and citizenship) Records 

In the period following the cessation of the rule of law caused by natural disaster or war, 

local citizens may need to reestablish their entitlement to certain social benefits or possession of 

property. Where a civil war or sectarian violence has occurred or there has been the presence of 

hostile foreign troops in the country the ability for an individual to prove that he has legal status 

to be in a nation can be a matter of life and death. Locating and securing legal records proving 

status and property rights should be a major initial priority of the initial deployment assessment. 

In looking for a potential “quick win” in terms of reforming a justice sector organization, 

bringing simple organization principles to record keeping can be a significant improvement. For 

example, when a court institutes a transparent case tracking system, it becomes very difficult to 

alter or steal case files, a relatively common method of changing the outcome of cases in many 

courts systems. 

e)	 Juvenile Justice 

Children, and especially orphans, are particularly vulnerable following a period of unrest. 

They are liable to find themselves before the judicial system under a variety of circumstances 

including theft, vagrancy, and as victims of sex or labor exploitation. Gaining an awareness of 

how the host nation legal system handles child offenders and victims and assessing the capacity 

of the system to do so following a conflict is an important component of establishing a popularly 

recognized justice system within the society. The United Nation’s Children’s Fund (UNICEF) 

has developed training and monitoring tools for juvenile justice systems. 

3.	 Assessments During Sustained Deployment (+90 D day to indefinite) 

The nature of planning in the sustained phase moves beyond the short term focus of 

helping a battered legal system back up onto shaky legs. There will be elements of the initial 

deployment phase operations still underway, such as courthouse or other infrastructure 

improvements, but the horizon for planning now moves to thinking in terms of months and years, 

as opposed to days and weeks. The focus also shifts from merely accounting for available 

facilities and personnel (an infrastructure focus important during the initial deployment phase) to 

an effects-oriented view that considers how best to employ the available assets to accomplish the 

long term reestablishment of the rule of law. 

Rebuilding often involves not just re-tailoring or changing existing functions, but 

supplanting them with new ones. The assessment must answer if – and how much – such 

replacement is possible or desirable. It requires political scientists and conflict management or 

organizational specialists to work alongside indigenous experts, especially those excluded from 

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pre-conflict power structures, to complement the usual cadre of judges, prosecutors, and other 

legal consultants involved in rule of law assessments.30 The effects focused assessment serves 

two basic purposes: (1) providing a systemic perspective for rule of law planning and reform; 

and (2) creating avenues for local involvement and participation in reconstruction. 

In pursuit of these longer term goals the sustained deployment assessment should develop 

information regarding:31 

•	 Sovereignty issues. Where applicable, this includes the relationship between US, other 

international forces and local sovereignty and institutions. If the US is acting as an 

occupation authority, its ability to control the timing and nature of reform is much 

different than if it is present as the guest of a sovereign government. 

•	 Security and capacity gaps. The level and nature of ongoing disorder (such as organized 

crime, looting, weapons/drug smuggling, and trafficking in persons) and the kind of 

mechanisms in place, if any, to address it 

•	 “Applicable law.” The formal legal framework that was in place prior to the conflict or 

that is considered to be valid in the country, including any interim laws that are being 

applied pending the passage of permanent legislation 

•	 Formal justice.32 The extent to which formal institutions remain intact or functional, and 

the availability of qualified professionals to staff them 

•	 Informal justice. The informal justice and dispute resolution mechanisms that citizens are 

using – such as tribal justice mechanisms – how they relate to each other and to the formal 

justice system, how they might relieve pressure on the formal justice system, and the 

extent to which their traditional practices reflect or violate human rights standards 

•	 Stakeholder opinions and expectations. How key stakeholders feel about systematic 

rule of law rebuilding components (e.g., human rights, institutional redesign, legal 

empowerment, and reconciliation efforts) and how the intervention process can help 

manage their expectations. Key stakeholders include host country public and private 

sector counterparts, political and opposition leaders, NGOs, other civil society 

organizations (such as professional associations, business alliances, and community-based 

groups), previously marginalized populations (such as women, ethnic groups, the poor, 

and youth), and donors. 

•	 Potential private sector reform partners. Civil society, business, and human rights 

actors who are likely to play a leadership role in advocating for reform or in overseeing 

and reporting on efforts to rebuild the formal sector as they take shape. (It is important to 

30 US AGENCY FOR INTERNATIONAL DEVELOPMENT, REBUILDING THE RULE OF LAW IN POST-CONFLICT 

ENVIRONMENTS 12 (2007 draft) [hereinafter REBUILDING THE RULE OF LAW].

31 See id., at 12-13. 

32 The terms “formal” and “informal” justice have been used consistently in order to avoid confusion and 

to maintain distinction between two systems. The terms do not necessarily accurately describe the 

systems and mechanisms of justice. The term “formal” justice refers mostly to state justice institutions 

and processes. The term “informal” refers loosely to a variety of mechanisms and processes that include 

non-state mechanisms, traditional practices, and customary law; the term does not imply procedural 

informality. 

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assess the past histories of local NGO leaders before giving them unqualified support, as 

some may be associated with the former regime or, for other reasons, may not necessarily 

be committed to democratic principles.) 

•	 Potential public sector and political champions. Government officials, politicians, and 

others at various levels who were neither part of the patronage system nor participants in 

corruption or oppression, and could serve as internal champions for rule of law reform. 

(These types of resources exist in some post-conflict countries. Examples include 

members of opposition parties, younger civil servants, and regional government 

representatives. Such individuals may not have actively opposed the prior regime, but in 

principle would support reform.) 

•	 Potential for mutual donor leveraging. The degree to which the US rule of law effort 

can enter into mutually beneficial relationships with other rule of law participants. 

Assessments regarding potential funding are necessary in the sustained deployment stage. 

But where time and the nature of the mission permits, funding considerations should be a prime 

consideration during pre-deployment assessments and planning as well. It is simply easier and 

more time efficient to utilize the extensive resources and domestic telephone contacts available 

at home station rather than trying to coordinate new funding streams once deployed to an austere 

environment with minimal communications capabilities. This is particularly true for follow-on 

rotations once the long term nature of the mission has become clearer and OPSEC concerns may 

be somewhat diminished. 

In addition to the guidance on assessments provided above, the Office of the United 

Nations High Commissioner for Human Rights has put together a very detailed and useful 

manual suggesting methods for assessing progress in rule of law operations, titled Rule-of LawTools For Post-Conflict States, Mapping the Justice Sector (2006).33 

Control the Scope of Your Assessment 

As with any project, placing a realistic scope upon the breadth of an assessment is 

important. An assessment that focuses upon a few disjointed factors will be of little utility in 

planning, while an assessment that seeks to capture every nuance of a legal system will become 

so bogged down by its level of detail and the burden of collecting information that it can be as 

equally useless as a superficial product. A detailed description of optimal assessment scope is 

beyond the scope of this Handbook; such determinations have to be driven by the peculiar facts 

and goals in a particular area of operations. However, listed below is a menu of assessment 

issues suggested by USAID that address the high-priority areas of security, impartiality, 

efficiency, and ultimately legitimacy. Although not suited to every situation, this list of questions 

is likely to assist the JA rule of law planner in assessing some of the important aspects of the host 

nation legal system issues in the sustained deployment phase. This list is intended to further 

thought: 

33 Available at: www.ohchr.org/english/about/publications/docs/ruleoflaw-mapping_en.pdf. 

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Assessment Framework34 

Security 

Legal Framework 

Is a cease-fire or peace accord working? 

Are the constitution or other basic laws in effect? 

Is society under martial law or other exceptional law (e.g., laws of foreign 

occupation, UN Security Council Resolution)? 

If constitutional order is effective, how effective are the criminal code and 

criminal procedure code? 

Do police and prosecutors have sufficient legal authority to investigate and 

prosecute crime, including complex cases such as organized crime, drug and 

human trafficking, and financial crimes? Is there a modern criminal code that 

conforms to international standards and provides a sufficient basis for dealing 

with most types of crime? 

Institutional Framework 

Is there an effective police force? 

Are the missions or mandates of the police forces codified or mandated in 

statutory law? 

What is the role of the military in internal security and how is it distinguished 

from that of the police, and from paramilitary forces? 

What are the rules and procedures of triggering a military response to internal 

security crisis? How do the military and other elements of the security system 

cooperate in such situations? 

Are there prosecutors? 

Are courts open and are there judges? 

Are prisons operating? 

Are the security sector employees getting paid a wage adequate to live on (to 

avoid resort to corruption)? 

Are the different security sector agencies interoperable? What agencies are 

essential to the justice system and what is the best method to ensure 

coordination and synchronization? 

Are charges brought only when there is adequate evidence of the commission of a 

crime? Are a large number of cases dismissed for lack of adequate evidence or 

because of unfounded or incorrect charges? 

34 This assessment framework is adapted from a draft version of the USAID GUIDE TO RULE OF LAW 

COUNTRY ANALYSIS, supra note 29, at 36-44. 

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Effects-Oriented Assessment 

Are citizens or foreigners safe? Are crime rates rising, remaining the same, or 

declining? 

Do police cooperate well with prosecutors and the courts in the gathering of 

evidence and prosecution of criminal cases? 

Do police control crime or contribute to crime? Do citizens trust and actively 

assist police in solving crime? Do citizens engage in vigilantism of any kind? 

Do prosecutors try cases effectively in practice? Do prosecutors have the 

knowledge and skills required to present criminal cases effectively and 

properly? 

Are prisoners regularly subjected to inhuman conditions or abuse? Are prisoners 

regularly released because prisons are incapable of housing them? 

Are judges, lawyers, police, or prison officials being targeted or intimidated? 

Are there armed groups that harm and intimidate citizens with seeming impunity? 

Are there armed groups that harm and intimidate citizens with seeming impunity? 

Legitimacy 

Legal Framework 

What is the source of law? What is its history? What groups in society wrote the 

laws? 

What is the legal basis for maintaining order? Is there a criminal code that 

conforms to international standards and provides a sufficient basis for dealing 

with most types of crime? 

Are there statutory penalties or punishments for discriminatory or abusive police 

conduct? 

Do the constitution and laws of the country provide that the judiciary is an 

independent branch of government? Does the legal framework guarantee 

judicial and prosecutorial independence, impartiality, and accountability? 

Are there legally recognized and binding codes of conduct in effect for judges, 

prosecutors, and lawyers? 

Are armed forces held legally accountable for their actions when performing law 

enforcement or public safety functions? 

How are the laws viewed today by different social groups? Are any laws resisted? 

How long has the constitution been in effect? How often has it been amended? 

Have amendments been made by a process which includes a genuine 

opportunity for public participation and decision-making? 

Institutional Framework 

How long have the key institutions been in place? How are they viewed by the 

public? By different social groups? 

177 Chapter VI - Planning 
Rule of Law Handbook 

Which institutions command respect, disrespect, or fear? How do they rate against 

other institutions in the state or society? Is law respected by elites? Do elites 

suffer if they break the law? 

Effects-Oriented Assessment 

Do prosecutors prosecute or not prosecute individuals or organizations for 

political, social, corrupt, or other illegitimate reasons (or are they perceived as 

acting in this way)? Do they consistently fail to act to protect certain persons 

or groups from rights violations? 

Do police and other bodies performing law enforcement/public order functions 

consistently act within the law? Do police routinely violate human rights with 

relative impunity? 

Do courts routinely accept and consider illegally obtained evidence (coerced 

confessions or items obtained as the result of illegal searches)? 

Are armed forces held legally accountable for their actions when performing law 

enforcement or public safety functions? 

Do substantial portions of the population conduct activities outside of the formal 

legal system? 

Do portions of the population resort to self-help (such as shootings, lynching, or 

other violence) to protect their property or personal rights or to punish 

transgressors? 

Are historical or ethnic enmities present that could threaten civic cooperation? 

What role do customary, religious, or community institutions play in practice in 

the justice sector? Are they regarded as more legitimate and credible than 

institutions of the state? 

What is the place of customary or religious law? Is it recognized as part of the 

country’s laws, or is its status unclear? Does it conflict with laws that are part 

of the formally adopted legal system? 

Impartiality 

Legal Framework 

Do the laws relating to the structure and operations of the judiciary place the 

principal control over most judicial operations in the hands of the judiciary 

itself? 

Is there a law on freedom of information held by government agencies? 

Do existing laws provide for appropriate external and internal oversight 

mechanisms for reviewing and acting upon complaints of police brutality or 

other misconduct? 

Are there legally recognized and binding codes of conduct in effect for judges, 

prosecutors, and lawyers? 

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Institutional Framework 

Do the constitution and laws of the country provide that the judiciary is an 

independent branch of government? 

Are judicial disciplinary and removal decisions made by a body and process that 

is not under the exclusive control of the executive and legislature? Are 

disciplinary/removal decisions subject to judicial review? 

Does the selection system for judges and prosecutors limit the ability of the 

executive and the legislature to make appointments based primarily on 

political considerations? 

Are judges entitled to security of tenure? 

Once appointed, can judges be removed for non-feasance or malfeasance in the 

performance of their duties? 

Are there internal or external (civilian) boards that review police conduct? Do 

these bodies aggressively review and act upon complaints of misconduct? Are 

there mechanisms to ensure that ethical codes for judges are prosecutors are 

effectively enforced? 

Does civil society scrutinize the justice system? Does the media? What is the role 

of the bar? 

Effects-Oriented Assessment 

Do the courts and other elements of the justice system enforce law in a way which 

favors certain persons or groups over others? 

Can citizens bring suit and obtain relief against the state? Against powerful 

interests? 

Do the actions of the courts reflect a heavy bias in favor of the government’s 

position in almost all cases that come before them (whether civil, criminal, or 

administrative)? 

Is the independence of the judiciary respected in practice? Do high ranking 

government officials frequently and strongly criticize the courts, judges, or 

their decisions? 

To what extent do judges or prosecutors leave their positions before the end of 

their terms? Why? 

Do influential officials engage in “telephone justice?” Under what circumstances? 

Are police held accountable to civilians? How? 

Are judges and prosecutors harassed, intimidated, or attacked? Are courthouses 

secure? 

Does the body that disciplines and removes judges and prosecutors act fairly, 

openly, and impartially? Are its decisions based solely on the criteria 

established by law for discipline and removal? Does it aggressively 

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investigate complaints of misconduct, malfeasance, and non-feasance and 

resolve them in a timely manner? 

Are all parties treated the same in the courtroom? Do judges and other parties act 

with decorum and with respect for all parties? 

Are judges’ rulings consistent regardless of the status of the parties before the 

court? 

Efficiency and Access 

Legal Framework 

Does the criminal law provide for periodic review of the decision to keep an 

individual in pre-trial detention by someone other than the prosecutor or 

police and in accordance with internationally accepted standards? 

Does the criminal procedure code provide for a right to a speedy and public trial 

before an impartial judge, notice of all charges, right to review the 

prosecution’s evidence and cross examine witnesses, right to present evidence 

and witnesses in defense, right to legal representation, a presumption of 

innocence, and a right against self-incrimination? 

Does the country’s civil procedure code provide that parties to civil proceedings 

have a right to proper and timely notice of all court proceedings, a fair 

opportunity to present evidence and arguments in support of their case, review 

evidence and cross-examine witnesses, have their case decided within a 

reasonable period of time, and appeal adverse judgments? 

Do existing laws provide sufficient authority to judges to ensure that criminal and 

civil procedures are followed? 

Are prescribed procedures overly complex and unnecessarily time-consuming? 

Can courts issue injunctions against executive/legislative actions? Actions of 

private interests? 

Institutional Framework 

What mechanisms are in place for defense of indigents accused of crimes (such as 

public defenders service or court-appointed counsel)? Does the mechanism 

used provide, in practice, competent legal counsel for indigent criminally 

accused? 

Is there a separate juvenile justice system? 

Are there victim and witness support units within police stations? Do they include 

the presence of female officers? 

Effects-Oriented Assessment 

Are civil and criminal procedures, as set forth in the codes, consistently followed 

in practice? 

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Do judges consistently respect the procedural rights of all parties and sanction 

those participants (lawyers, prosecutors, witnesses, and parties) who violate 

the rules? 

Are judges’ decisions well-reasoned, supported by the evidence presented, and 

consistent with all applicable law? In cases in which judges have discretion in 

the enforcement of trial procedures, do they exercise that discretion 

reasonably and in a way that encourages the fair and expeditious resolution of 

cases? 

Do most segments of society understand their legal rights and the role of the legal 

system in protecting them? Do they understand how the courts work and how 

to access them effectively? 

Do lawyers have the knowledge and skills necessary to advise parties competently 

and advocate their interests in court? 

In practice, are civil judgments enforced in an effective and timely manner? 

Do women use the justice system, and what are the results? 

Where do poor people go to obtain justice? Other social groups and classes? Is 

free or affordable legal advice available to medium- or low-income groups on 

civil matters (such as family, contract, or property law)? 

Are most citizens represented by legal counsel when they go into court, or do 

many represent themselves in court (pro se representation)? Do the courts 

provide assistance of any kind to such parties? Does the local bar association 

provide any kind of low- or no-cost (pro bono) legal services to individuals or 

groups? 

Are the courts user friendly and customer service oriented? 

D.	 Practical Approaches for Measuring Progress within 

Rule of Law Operations 

A “metric” is a means by which one can measure productivity, achievement of goals or 

objectives and performance of tasks or actions. Metrics are generally quantitative or qualitative 

units of measurement. All military operations have techniques for measuring success or failure of 

a particular mission, and no military operation exists without reporting requirements that require 

the application of metrics. Meaningful metrics permit the Judge Advocate engaged in rule of law 

missions to not only measure whether the mission is accomplishing its goals, but to also convey 

information to superiors and policy makers in a quantifiable manner that is not purely anecdotal. 

1.	 Pre-deployment Metrics 

The metrics at the pre-deployment stage should be focused on your unit’s capability and 

readiness to perform its assigned mission rather than mission accomplishment. Does the unit 

have the requisite knowledge and resources to successfully undertake the rule of law mission? 

Does the unit have the requisite soldier tools and equipment to be able to conduct the rule of law 

mission in a non-permissive environment? 

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If the mission is a follow-on rotation to replace another unit already in theater, the metrics 

for pre-deployment planning will necessarily include the progress and assessments of the unit 

already in theater. The follow-on unit obviously cannot control the content of those metrics, but 

obtaining that information early in the pre-deployment planning process for the follow-on unit 

will allow it to generate realistic assumptions and courses of action under the military decision 

making process. 

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

Metrics in the initial deployment stage frequently focus upon facilities and personnel. 

The newly arriving Judge Advocate needs to understand the capabilities and resources will be 

required before meaningful planning and assessment can occur. Although each circumstance will 

vary, examples of early metrics include: 

Courts and Judiciary: 

•	 Number of courthouses that are structurally capable of operation. 

•	 Number of trained judicial and law enforcement personnel available. 

•	 Availability of functioning utilities necessary to operate facilities. 

•	 The amount of funding needed to repair physical damage to buildings, to include 

labor and materials. 

Police and Jails: 

The rule of law planner should have a solid understanding of the ability of the local 

system to detain those persons arrested for criminal misconduct, to include both short-term and 

long-term circumstances. The metrics for this area include: 

•	 The number and geographic distribution of confinement facilities. 

•	 A numerical breakdown of bed capacity in maximum and medium security long 

term facilities, as well as local short term detention space. 

•	 The number and nature of currently detained/imprisoned persons. 

•	 The rate at which newly detained/arrested personnel are growing versus capacity. 

Physical Security and Police Institutions in the Wake of Major Combat 

During OIF-1 there was a period of 4-8 weeks during which the number of 

persons being arrested overwhelmed the capacity of the available facilities to hold 

them. Petty thieves and non-violent looters had to be released back into the 

population in order to create detention capacity for violent offenders. Awareness 

of detention metrics impacts all justice assessments and planning. 

In addition, metrics should permit an assessment of the capabilities (and adequacy) of the 

local law enforcement entities. Given their expertise in the field, Military Police should take an 

active role in both planning and executing these aspects of most rule of law operations. 

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Other Agency Metrics 

Another important metric in measuring what capabilities exist and what operations can be 

sustained is the existence of other USG, international and nongovernmental agencies in the area 

of operations. Knowledge of their capabilities in terms of personnel, funding, and equipment is a 

quantifiable factor that will have bearing upon mission planning. 

Track Public Requests for Information 

The establishment of help desks or public information centers in courthouses and police 

stations creates an ongoing opportunity to track the number of people seeking access to the 

system by their questions on legal rights and court processes. While JA personnel may need to 

initially generate the initiative for such a program, it should be staffed by local nationals who 

have been provided training on the services and information they are to provide, as well as 

instruction on tracking inquiries. 

Track Complaints 

Similarly, creation of a mechanism for accepting public complaints provides not only the 

opportunity to assess and fix flaws in the system, but to track the number of people willing to 

speak out on inadequacies in the system. In this regard, tracking an increase in the number of 

complaints is not necessarily a negative factor. Persons who are oppressed and live in fear of 

their legal system are less likely to openly complain, while those who feel they have a 

meaningful voice in the system are more apt to lodge complaints. 

Track Case Processing Statistics 

In the initial deployment phase, the number of criminal cases being adjudicated is a good 

initial metric as to whether the system is operating at all. Such numbers do not reflect the quality 

of justice, but the mere fact that cases are being adjudicated is a positive first step. Early judicial 

actions in the initial deployment phase are analogous to emergency medicine. They may not be 

pretty, but their successful completion is critical for any subsequent improvements to occur. 

Beware of Stale Metrics 

As the mission evolves, merely counting things like the number of court cases become 

less relevant as an accurate metric for rule of law analysis. For instance, nearly as important as 

the number of cases being adjudicated is the quality and due process that is offered by the 

system. For instance, persons who spend more time in pretrial detention than their ultimate 

sentence may not necessarily be receiving adequate due process. Additionally, parties who must 

wait years to present civil disputes to any level of court may not feel the benefit of the rule of law 

and turn instead to resolving disputes through private and coercive means. As the legal system 

begins basic function, rule of law practitioners should adjust their metrics to account for the 

changed environment. Eventually, metrics will have to evolve beyond a purely quantitative, 

institutional focus to a qualitative one emphasizing the effects that the legal system is having on 

the populace. 

3. Metrics During Sustained Deployment (91+ D day to indefinite) 

Effects-Oriented Metrics 

Many of the metrics during the initial deployment stage are designed to measure resource 

availability. As the mission evolves beyond initial entry into sustained operations, the mission 

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becomes more complex. Accordingly, the metrics during this phase also become more complex 

beyond the mere counting of cases. The metrics during sustained operations seek in many 

instances to capture intangibles, such as the attitudes of the population toward their justice 

institutions. 

At the sustained deployment stage, merely focusing upon the number of courthouses 

operating, the number of prison cells available, and the number of judges hearing a given number 

of cases begins to tell an increasingly irrelevant story. Now operations are moving into the higher 

realm of what constitutes establishment of the rule of law. A tyrannical system despised by its 

population can have courthouses, cells, and case adjudication statistics and yet the rule of law 

does not exist. Once a plateau of recovery is reached where the facilities and personnel exist to 

operate the legal system, then the metrics upon which assessments and planning are built must 

shift to analyzing the efficacy and legitimacy of the system. 

Again, because the specific metrics to be used will be situation and mission specific, this 

non-exclusive list of metrics should be used more as a guide for discussion and development of 

mission-appropriate metrics than as a checklist: 

Conviction/acquittal rates. Figures that reflect a lack of balance (either way) in the system 

may suggest the need for additional training (judicial, prosecutorial, or defense 

counsel) or problems of either mishandling of cases or evidence or corruption. 

The number of civil legal actions being filed each month. Comparisons between preconflict and post conflict statistics are particularly revealing as to whether the people 

believe they can receive justice from the nation’s court system. 

Case processing times for the civil court docket. If cases are not being decided in a timely 

fashion, one cannot expect the population to rely upon the system and they will turn 

to other methods, sometimes violent, to resolve disputes. 

Case processing statistics for criminal cases. How long it takes for each case to come 

before the bench for resolution will reflect the health of the system over time. 

Case statistics (both civil and criminal) should be compared from different portions of the 

country to determine if rule of law progress is lagging in certain parts of the country. 

Serious crime statistics. The number of occurrences and whether people report such 

crimes to the police may reflect trust or mistrust of the police. A generally recognized 

high incidence of crime with a low reporting record may reflect that the population 

does not trust the police and would rather endure the crime than place themselves 

within reach of law enforcement personnel. 

The Aftermath of Extensive Police Corruption in Iraq 

After the fall of the Baathist regime in Iraq, many citizens related they had not 

reported crimes to the police under Saddam’s rule because the police would not 

leave their station house to investigate unless they were promised money or a cut 

of the recovery if they reclaimed the stolen property. 

Formal or informal surveys pertaining to level of public trust in the police and the 

judiciary. Such surveys can be coordinated to occur contemporaneously with public 

education forums concerning the justice system. 

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The number of personnel assigned to police internal affairs offices, the number of filed, 

pending, and completed investigations, and outcome statistics. As with criminal trial 

statistics, disproportionately high findings of either misconduct or no basis may 

reflect that the oversight agency itself is subject to bribery and corruption. 

The existence of judicial/legal training centers that provide ongoing instruction in 

concepts of the rule of law is one metric to gauge the evolution of legal thought in a 

country. Perhaps more important is measuring the number of personnel from around 

the concerned nation who receive instruction through such institutions. If training is 

limited to a few favored elite, the existence of such institutions is not as meaningful 

as if it is available to all judges, prosecutors, and other key legal personnel. 

Public Information/outreach. Public forums and education programs provide another 

opportunity to gauge the extent to which the local population views themselves as 

having a role in their legal system by monitoring attendance and the number and 

nature of inquiries that follow the program. 

Intangibles Should Not Be Disregarded 

It is important to recognize that metrics when applied to the rule of law mission is an 

attempt to place numbers upon an intangible – the level of trust and reliance the population has 

in its legal institutions. Such metrics are important for attempting to convey a subjective and 

intangible concept to higher headquarters and civilian policy makers. However, metrics have 

limitations and should never be a complete replacement for the insight, common sense, and 

intuition of the Judge Advocate in the rule of law team as to whether the population has 

confidence that the rule of law is growing or diminishing in their society. Attorneys perform 

these missions, not accountants, because of their legal training and judgment, which enables 

them to discern patterns and trends out of otherwise seemingly chaotic circumstances. Thus, the 

metrics are merely a tool from which to create an assessment of objective and subjective factors 

impacting the rule of law mission. 

E.	 Interagency Reconstruction and Stabilization Planning 

Framework 

1.	 Introduction 

Reconstruction and stabilization efforts in recent years have presented many challenges 

in terms of planning, coordination, and implementation. In particular, efforts in Iraq and 

Afghanistan have highlighted differing approaches by the different arms of the US government. 

These different approaches have made planning, coordination, and implementation at the 

interagency level difficult at times. 

In an effort to synchronize these processes, President George W. Bush signed National 

Security Presidential Directive 44, giving the Secretary of State the responsibility to coordinate 

and lead US government efforts at reconstruction and stabilization.35 The Department of Defense 

35 National Security Presidential Directive/NSPD-44, Management of Interagency Efforts Concerning 

Reconstructing and Stabilization (7 Dec. 2005). 

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followed the President’s lead by publishing DODD 3000.05, which designated certain 

responsibilities to various organizations within DOD.36 These two documents acknowledged the 

capabilities of both the Department of State and the Department of Defense, and served to 

delineate key reconstruction and stabilization responsibilities with a goal of enhancing the 

planning, coordination, and implementation efforts of all key US government participants. 

While the military may not be the lead agency in formulating reconstruction policy, it not 

only has necessarily undertaken considerable responsibility for engaging in reconstruction and 

stabilization activities (particularly in non-permissive or semi-permissive environments), it also 

published doctrine to provide guidance in planning such operations.37 However, any rule of law 

planner engaged in a rule of law operation in an interagency environment should have a basic 

grasp of both the interagency framework and the corresponding military doctrine in order to 

appreciate the comprehensive nature of reconstruction and stabilization efforts, as well as 

identify the interagency partners who may possess the capabilities to best accomplish specific 

reconstruction and stabilization tasks. This section will describe the State Department’s approach 

to reconstruction and stabilization, discuss the Army’s own set of primary stability tasks that 

follow the State Department’s approach, and offer typical lines of effort for each primary 

stability task.38 

2. The State Department’s Five-Sector Framework for Reconstruction and Stabilization 

In April 2005, S/CRS published the Post-Conflict Reconstruction Essential Tasks Matrix 

in order to provide reconstruction and stabilization personnel, especially in post-conflict settings, 

with a common framework to assess, plan, and synchronize efforts among all participating 

organizations.39 The S/CRS framework is a comprehensive task list built on five broad technical 

areas of society, or stability sectors. Each stability sector reflects a specific societal function. A 

country that displays some degree of success in all five stability sectors will generally be a stable 

state. Conversely, a country that displays some degree of instability in one or more of these 

sectors will find itself in a more fragile state. 

Additionally, the S/CRS framework sets forth a three-phased approach to reconstruction 

and stabilization efforts in each sector, generally viewed in terms of three phases: 

36 U.S. DEP’T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION 

AND RECONSTRUCTION (SSTR) OPERATIONS (28 Nov. 2005). 

37 See FM 3-0, supra note 8, at ch. 3 (27 Feb. 2008). (discussing these five Army primary stability tasks). 

38 This discussion of frameworks is intended to provide a brief overview of these frameworks. It is not 

intended to be a substitute for a full reading of all the documents referenced in this section. Rule of law 

planners will find themselves more capable of understanding the differences between the two frameworks 

by taking the time to read and digest them in their entirety. 

39 The Post Conflict Reconstruction Essential Tasks Matrix can be found at: 

http://www.state.gov/s/crs/rls/52959.htm (last visited August 12, 2008). Though this framework is 

entitled an “Essential Task Matrix,” its title should not be construed to mean that planners must complete 

every task on the matrix in order to achieve stability. Every situation is different, requiring effective 

mission analysis and course of action development. Readers should use the S/CRS Essential Task List as 

a baseline framework. For purposes of this Handbook, the product will be hereinafter referred to as the 

“S/CRS framework.” 

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1. Initial response (immediate actions of reconstruction and stabilization 

personnel); 

2. Transformation (short term development); and 

3. Fostering sustainability (long term development). 

It is important to note that the three-phase approach is not generally viewed as necessarily 

sequential. Situations may warrant the implementation of certain tasks in a subsequent phase 

even though conditions presented may be best characterized as an earlier phase. For example, 

reconstruction and stabilization personnel may plan and coordinate monetary policy programs in 

the early stages of the US government effort, even before the country enters the post-conflict 

phase. Rule of law planners should always consider the fluidity of the conditions on the ground, 

and plan their tasks to account for such fluidity. 

The five stability sectors as defined by the S/CRS framework, which will be discussed in 

greater detail, are as follows: 

Security 

Justice and Reconciliation 

Humanitarian Assistance and Social Well-Being 

Governance and Participation 

Economic Stabilization and Infrastructure 

One must bear in mind that the five stability sectors do not operate independently of each 

other. Rather, all five sectors work in concert to promote and maintain stability. Planners should 

ensure, therefore, that any reconstruction and stabilization plans account for the effect each line 

of effort will have on one or more stability sectors. 

Just as lines of effort can affect one or more stability sectors, so too can sources of 

instability. For example, illicit drug trafficking threatens individual or community security, poses 

great challenges to the law enforcement community (justice), and generates income that destabilizes the legitimate economy of the country. A particular source of instability can also exist 

outside the borders of the host nation. For example, terrorism often operates its recruiting, 

training, funding, and planning cells in multiple countries. 

It is important, therefore, to understand the meaning and application of each stability 

sector as well as the linkages between sectors. Planners must also understand the effect of a 

source of instability on each stability sector, as well as stability in general. Doing so will enable 

planners and personnel completing that task to understand the importance of the specific task, its 

impact on mission success, and the consequences for failing to complete the task. It also enables 

planners to assess the effectiveness of certain courses of action, and use lessons learned to 

effectively plan future operations. 

Security 

Security is the foundation for broader success across the other stability sectors. In nonpermissive or semi-permissive environments, security often must be established before other US 

government partners can engage in reconstruction and stabilization efforts. Efforts within the 

security sector focus on establishing a stable security environment and developing legitimate 

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institutions and infrastructure to maintain that environment. Its provision encompasses both 

individual and collective security. 

Initially, reconstruction and stabilization personnel respond to establish a safe and secure 

environment. Afterward, they work to transform the host nation security institutions to make 

them legitimate and stable. Once host nation security institutions effectively take responsibility 

for providing security, reconstruction and stabilization personnel assist in consolidating 

indigenous capacity, and providing limited assistance where needed. 

Justice and Reconciliation 

This sector centers on justice reform and the rule of law, supported by efforts to rebuild 

the host nation courts systems, prosecutorial and public defense arms, police forces, investigative 

services, and penal systems. It also includes helping the host nation select and enforce an 

appropriate body of laws that protects the integrity of host nation governance institutions. 

Initially, reconstruction and stabilization personnel develop mechanisms for addressing 

past and ongoing grievances that give rise to civil unrest. Once a rudimentary system takes hold, 

efforts are made to initiate the building of a more robust legal system and a process for 

reconciliation. As the legal system takes root, reconstruction and stabilization personnel will 

work to ensure the host nation operates a functioning legal system that the population accepts as 

legitimate. 

Humanitarian Assistance and Social Well-being 

This sector focuses on the basic needs of the population, both in terms of immediate 

needs and long-term sustainability. Effective humanitarian assistance efforts in such areas as 

food distribution, refugee and displaced persons, and sanitation provide immediate relief to host 

nation populations in desperate need of aid, especially those in post-conflict areas. Such relief 

contributes to the establishment of security, as well as the perception of legitimacy of the host 

nation government charged with providing for the welfare of its citizens. Long term social wellbeing development in programs such as education and public health systems ensure the host 

nation government possesses the capabilities and capacity to develop the abilities of its citizens 

to provide for their own welfare, which further sustains stability and eliminates or minimizes the 

potential drivers of conflict. 

Initially, reconstruction and stabilization personnel work to provide emergency 

humanitarian needs. As the immediacy to address these needs subsides, reconstruction and 

stabilization personnel establish a foundation or program for host nation development to develop 

the capabilities and capacity to meet these needs in the long term. Once the host nation 

demonstrates its ability to provide basic services, reconstruction and stabilization personnel 

institutionalize the long-term development program so it functions with little or no outside 

assistance. 

Governance and Participation 

Governance is the state’s ability to serve the citizens, to include the rules, processes, and 

behavior by which interests are articulated, resources are managed, and power is exercised in a 

society, as well as the representative participatory processes typically guaranteed under 

inclusive, constitutional authority. Participation includes methods that actively, openly involve 

the local populace in forming their government structures and policies that, in turn, encourage 

public debate and the generation and exchange of new ideas. Both governance and participation 

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require the establishment of effective, legitimate political and administrative institutions and 

infrastructure. 

Initially, reconstruction and stabilization personnel assist the host nation in determining 

the most effective governance structure and establishing the foundations for citizen participation. 

Once the basic structure and foundation find support among the key elements of the host nation 

government, reconstruction and stabilization personnel work to promote legitimate political 

institutions and processes. After the political institutions and processes take root among the host 

nation populace, reconstruction and stabilization personnel consolidate these institutions and 

processes so they can operate with little or no outside assistance. 

Economic Stabilization and Infrastructure 

Economic stabilization and infrastructure involves the state’s programs, facilities, and 

transportation systems (e.g., roads, railways, and ports) that enable its population to generate 

income and tax revenue to sustain the state’s economic base. Steven Hadley, Director of the 

Office of Economic Growth, Bureau for Economic Growth, Agriculture and Trade (EGAT), US 

Agency for International Development, once remarked that “economic growth has often been 

treated as an afterthought in post-conflict recovery and has received relatively little attention 

from donors working on post-conflict problems.” This is in part due to the tendency to focus first 

on security, humanitarian assistance, and other short-term needs. It is also due to the fact that 

economic growth and stability is a complicated sector involving the successful involvement of 

the public and private sectors over an extended period of time. Indeed, economic growth and 

stability can be difficult to accomplish in economically developed countries. Therefore, planning, 

coordinating, and implementing economic growth programs across the interagency community 

poses great challenges, requiring both short and long term planning, strategic patience, and 

strong coordination among the interagency partners. 

Initially, reconstruction and stabilization personnel respond to immediate needs of the 

population. As security is established and initial needs are met, reconstruction and stabilization 

personnel establish a foundation or program for host nation development to develop the 

capabilities and capacity to foster economic and infrastructure development over the long term. 

Once the host nation, particularly at the local and provincial levels, demonstrates its ability to 

sustain a rudimentary economy, reconstruction and stabilization personnel institutionalize the 

long term development program so the local and provincial levels can benefit from national level 

economic programs affecting trade, monetary policy, banking policy, and various other 

economic facets with little or no outside assistance. 

3. The Army Primary Stability Tasks40 

The Army’s five primary stability tasks are intended to closely mirror the S/CRS stability 

sectors. Each stability task focuses military efforts on a functional area of society. They are: 

40 See FM 3-0, supra note 8, at 3-12 – 3-16. 

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Establish civil security. 

Establish civil control. 

Restore essential services. 

Support to governance. 

Support to economic infrastructure and development. 

As is the case with the S/CRS stability sectors, each stability task does not operate in 

isolation, but rather in conjunction with one or more tasks. The combination of tasks conducted 

during stability operations depends on the situation. Planners should use the Army primary 

stability tasks as a basic framework for establishing lines of effort. Keep in mind that lines of 

effort may impact more than one stability task, and a source of instability may impact more than 

one line of effort. 

Establish Civil Security 

Civil security is most closely tied to the S/CRS “security” sector. It involves providing 

for the safety of the host nation and its population, including protection from external and 

internal threats. Ideally, military forces defeat external threats posed by enemy forces that can 

attack population centers. Simultaneously, they assist host-nation police and security elements as 

the host nation maintains internal security against terrorists, criminals, and small, hostile groups. 

In situations where the host nation does not possess sufficient capabilities, military forces 

provide most civil security while developing host nation capacity. Military forces then transition 

these responsibilities as soon as the host nation security forces can adequately maintain civil 

security with little or no assistance. 

Civil security lines of effort include, where appropriate: disposing of opposition armed or 

other security forces, intelligence services, and belligerents; ensuring territorial security; 

establishing public order and safety; protecting indigenous individuals, institutions, and 

infrastructure; and protecting reconstruction and stabilization personnel. 

Establish Civil Control 

Civil control is most closely tied to the S/CRS “justice and reconciliation” sector. It 

involves the regulation of selected behavior and activities of individuals and groups. Effective 

civil control reduces risk to individuals or groups, as well as corruption by individuals 

responsible for providing civil security and civil control. Military forces, in close coordination 

with State and Justice Department personnel, plan and implement programs designed to build the 

capabilities of the host nation judicial system, law enforcement organizations, and penal systems. 

Additionally, judge advocates and attorneys from other interagency and multinational partners 

build legal institutions that effectively educate, train, and support the judges and lawyers of the 

host nation, enabling them to practice law according to their laws, regulations, customs, and 

internationally accepted standards of human rights. 

Civil control lines of effort include, where appropriate: constituting an interim criminal 

justice system; building or sustaining an effective host nation police force; building or sustaining 

sufficient judicial personnel and infrastructure; preventing property conflicts; reforming the legal 

system; preventing human rights abuses; building or sustaining adequate corrections systems; 

establishing legitimate war crimes tribunals and truth commissions; and establishing community 

rebuilding programs. 

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Restore Essential Services 

Essential services is most closely tied to the S/CRS “humanitarian assistance and social 

well-being” sector. It involves the establishment or restoration of the most basic services such as 

food and water, emergency shelter, rescue, emergency medical care, and basic sanitation. 

Military forces, especially in the aftermath of armed conflict and major disasters, establish or 

restore these basic services and protect them until a civil authority or the host nation can provide 

them. Normally, military forces support civilian and host nation agencies. When the host nation 

cannot perform its role, military forces may temporarily provide the basics directly. Activities 

associated with this stability task extend beyond basic services, as broader humanitarian and 

social well-being issues typically impact the host nation’s institutional capacity to provide such 

services. 

Essential services lines of effort include, where appropriate: assistance to refugees and 

internally displaced persons; food security; shelter and non-food relief; humanitarian demining; 

public health, including potable water, medical care, and sanitation; education; and social 

protection. 

Support to Governance 

Governance is most closely tied to the S/CRS “governance and participation” sector. The 

State Department typically holds primary responsibility for most governance and participation 

efforts with the host nation government, but military forces, especially in post-conflict areas, 

often assume primary responsibility to support governance at the local and provincial levels. 

Military personnel establish liaison with local leaders and business owners, encourage peaceful 

resolution of disputes among rival factions, build or restore critical infrastructure, and establish 

liaison with the national government. 

Governance lines of effort include, where appropriate: national constituting processes; 

transitional governance; executive authority; legislative strengthening; local governance; 

transparency and anti-corruption; elections; political parties; civil society and media; and public 

information and communications. 

Support to Economic and Infrastructure Development 

Economic and infrastructure development is most closely tied to the S/CRS “economic 

stabilization and infrastructure” sector. It involves both the ability of the host nation institutions 

to sustain its economic viability and the individual citizen’s ability to provide for his basic needs. 

Many different factors can affect the economic viability of a state, some of which are not subject 

to influence by military forces. However, military forces can make significant improvements to 

the economic viability of a local or provincial population, either by injecting money directly into 

the economy through construction and service contracts, or by improving the infrastructure that 

supports the economic base. Given the complex nature of the economic stabilization and 

infrastructure sector, military forces should ensure their stability task plans are properly 

synchronized into an overarching economic and infrastructure development plan at the strategic 

and operational levels to ensure any plans do not provide short-term success at the expense of 

long-term stability. 

Economic and infrastructure development lines of effort include, where appropriate: 

transportation infrastructure, such as roads, railways, airports, ports, and waterways; 

191 Chapter VI - Planning 
Rule of Law Handbook 

telecommunications; energy development, utilizing natural resources, electrical power, energy 

production and distribution infrastructure; and municipal and other public services. 

FM 3-0, Operations, Fig. 3.3, Stability tasks and Department of State technical sectors 

4. Conclusion 

Reconstruction and stabilization efforts involve complex problems and even more 

complex solutions. Depending on the level of command military rule of law planners serve, no 

two situations will likely look the same, even within the same country or region. The two 

frameworks offered by S/CRS and FM 3-0 present similar conceptual approaches to stability 

operations from the strategic and operational levels, respectively. However, they are merely 

general frameworks that serve as starting points for planning, coordination, and implementation. 

Situations on the ground can and will require rule of law planners to conduct a thorough mission 

analysis and course of action development to tailor these frameworks in such a way that best 

suits the conditions presented in a particular area of operations. 

F. Conclusion 

Planning, assessment, and metrics are critical aspects of any military operation. Rule of 

law operations are no different. Planning a rule of law mission, assessing the host nation’s legal 

system, and measuring progress provide not only a roadmap for the operation but also provide 

guidance on whether the mission is successful and whether what is working in one AO should be 

exported to other ones. Thorough planning, assessment, and metrics are necessary for organizing 

the rule of law effort. But , because the rule of law is itself so intangible a concept, it will take 

more than reliance on successful completion of particular tasks or numeric measures of effect in 

order for all involved to conclude that they have furthered the rule of law through their actions. 

That conclusion is instead more likely to come from introspection – how the practitioners 

themselves perceive the system. 

Chapter VI - Planning 192 
 

 

VII. Fiscal Considerations in Rule of Law 

Operations 

The US Constitution grants Congress the “power of the purse,”1 a function that both 

appropriates public funds for a federal activity and defines a specific use for those funds. The 

principles of Federal appropriations law2 permeate all Federal activity, both within the United 

States, as well as overseas. Thus, there are no “contingency” or “deployment” exceptions to the 

fiscal principles, including the funding of rule of law operations. Because fiscal issues will arise 

during every rule of law operation, a failure to understand the nuances of fiscal law may lead to 

the improper obligation and/or disbursement of appropriated funds.3 The improper obligation of 

appropriated funds may result in negative administrative and/or criminal sanctions against those 

responsible for violations of fiscal law. As a result, rule of law advisors need a solid 

understanding of the basic fiscal principles prior to advising their commands on the legality of 

funding rule of law activities. 

Fiscal law can rapidly change in response to both the operating environment (OE) and the 

will of the US public, manifested in congressional appropriations and authorizations.4

 The 2009 

Supplemental Appropriations Act, enacted on June 24, 2009, demonstrates how quickly the 

fiscal landscape can change. The Supplemental Appropriation provides two new funds, the 

Pakistan Counterinsurgency Fund and the Pakistan Counterinsurgency Capability Fund.5

 The 

purpose of both funds (one administered by DOD, the other by DOS) is to build and maintain 

1 See U.S. CONST. art. I, § 9, cl. 7 (“No money shall be drawn from the Treasury, but in Consequence of 

Appropriations made by law ... .). 

2

 The terms “federal fiscal law” and “federal appropriations law” are used interchangeably to refer to the 

“body of law that governs the availability and use of federal funds.” See PRINCIPLES OF FED. 

APPROPRIATIONS LAW, ch. 1, 1-2, GAO-04-261SP (U.S. Gov’t Accountability Office, Office of the 

General Counsel) (3d ed. vol. I 2004). 

3

 An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., 

supplies, services, or construction. From a legal standpoint, the obligation is a government promise to pay 

a certain amount to a contractor in consideration for their promise to provide goods, services or 

construction. A disbursement (or expenditure) is an outlay of funds to satisfy a legal obligation. For 

example, a contract award for construction normally triggers a fiscal obligation. The government may pay 

the contractor, or disburse funds from that recorded obligation, later in time as the construction is 

completed. The obligation for the full estimated amount, however, is recorded against the proper 

appropriation at the time the government makes the promise to pay (usually at contract award). 

Commands also incur obligations when they obtain goods and services from other U.S. agencies or a host 

nation. Although both obligations and disbursements are important fiscal events, the time of obligation is 

generally the critical point of focus for the fiscal advisor. See Cont. & Fiscal L. Dep’t, The Judge Advoc. 

Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law Deskbook, ch. 5 (2009), available at 

https://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/TJAGSAWEB.NSF/TJAGLCS 

Publications. 

4 See, e.g., Can Appropriation Riders Speed Our Exit from Iraq?, Charles Tiefer, 42 STAN. J. INT’L L. 

291, 297 (Summer 2006) (stating that the use of riders to appropriations could be used to reflect the 

American public’s “highest priority on speeding the troops’ exit from Iraq.”)

5

 Act of June 24, 2009, Pub. L. No. 111-32, 123 Stat. 1859 (2009). 

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Rule of Law Handbook 

Pakistani counterinsurgency capability, which can inherently involve rule of law functions. Rule 

of law practitioners must follow developments in both DOD and partner agency appropriations 

and authorizations in order to best assist commanders in rule of law functions. There is no 

overarching rule of law funding source, so familiarity with new funding developments is 

essential to an effective, efficient and responsible rule of law fiscal practice. 

Congress generally imposes legislative fiscal controls through three basic mechanisms, 

each implemented by one or more statutes. The three basic fiscal controls are: 

1.	 Obligations and expenditures must be for a proper purpose;6 

2.	 Obligations must occur within the time limits (or “period of availability”) 

applicable to the appropriation (e.g., operation and maintenance (O&M) funds 

are available for obligation for one fiscal year); and7 

3. Obligations must not exceed the amounts authorized by Congress, and must not 

violate the Antideficiency Act (ADA). 

8 

In addition to these controls, the US Comptroller General, who heads the Government 

Accountability Office (GAO), audits executive agency accounts regularly, and it scrutinizes 

compliance with the fund control statutes and regulations. Congress likewise may require 

significant reporting requirements. For example, in section 1215 of the 2009 National Defense 

Authorization Act, Congress required the President to provide reports detailing performance 

indicators and measures for Provincial Reconstruction Teams in Afghanistan.9 

Before a JA advises the command on whether a specific rule of law operation is fiscally 

sound, the JA needs a solid understanding of the basic Purpose, Time, and Amount fiscal 

controls that Congress imposes on executive agencies. Although each fiscal control is key, the 

“purpose” control is most likely to become an issue during military operations and rule of law 

activities, and so it is treated in detail here. Following that is a discussion of the basic fiscal 

framework of Funding US Military Operations (FUSMO), of which rule of law activities are a 

subset. The DOS is the primary agency responsible for foreign reconstruction efforts, including 

rule of law activities, so following the general discussion of FUSMO is a detailed discussion of 

the appropriations and authorizations available to the Department of State to conduct rule of law 

activities, which the DOD will access via Interagency Acquisitions. Then this chapter will 

discuss some of the current appropriations and authorizations available to the Department of 

Defense to conduct rule of law activities. The chapter concludes with a discussion of the specific 

issues that arise in the context of funding rule of law activities, with a particular focus on 

Provincial Reconstruction Teams (PRTs) and Embedded Provincial Reconstruction Teams 

(ePRTs).10 

6

 31 U.S.C. § 1301(a) . 

7

 31 U.S.C. § 1552. 

8 See 31 U.S.C. § § 1341 & 1342 (2008); 31 U.S.C. § 1342 (2008). For more information on the basic 

fiscal legislative controls of Purpose, Time, and Amount (ADA), see Cont. & Fiscal L. Dep’t, The Judge 

Advoc. Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law Deskbook, chs. 2-4 (2009). 

9

 Duncan Hunter National Defense Authorization Act of 2009, Pub. L. No. 110-417, § 1213, 122 Stat. 

4632 (2008).

10 PRTs are discussed in detail in Chapter IX. 

Chapter VII – Fiscal Considerations 194 
 

 

 

Rule of Law Handbook 

A.	 Purpose 

1.	 Introduction 

The Purpose Statute provides that “[a]ppropriations shall be applied only to the objects 

for which the appropriations were made except as otherwise provided by law.”11 Thus, 

expenditures must be authorized by law12 or be “reasonably related” to the purpose of an 

appropriation. In determining whether expenditures conform to the purpose of an appropriation, 

JAs should apply the GAO’s Necessary Expense Doctrine, which allows for the use of an 

appropriation if: 

1. An expenditure is specifically authorized in the statute, or is for a purpose that is 

“necessary and incident” to the general purpose of an appropriation; 

2. The expenditure is not prohibited by law; and 

3. The expenditure is not provided for otherwise, i.e., it does not fall within the scope of 

another, more specific, appropriation.13 

2.	 General Prohibition on Retaining Miscellaneous Receipts and Augmenting 

Appropriations 

Absent a statutory exception, a federal agency that receives any funds other than the 

funds appropriated by Congress for that agency must deposit those funds into the US Treasury.14 

Therefore, if an agency retains funds from a source outside the normal appropriated fund 

process, the agency violates the Miscellaneous Receipts Statute.15 When an agency expends 

funds that were not specifically appropriated for that agency, this generally violates the 

constitutional requirement that agencies may only expend funds appropriated by Congress.16 

A corollary to the prohibition on retaining Miscellaneous Receipts is the prohibition 

against augmentation.17 Absent a statutory exception, an agency augments its funds when it 

11 31 U.S.C. § 1301(a). 

12 For DOD, this includes permanent legislation (Title 10) and annual appropriations/authorizations acts 

(DODAA/NDAA). For the State Department, this includes permanent legislation (Title 22) and annual 

appropriations/authorization acts. 

13 For in-depth legal analysis of the Necessary Expense Doctrine, see Cont. & Fiscal L. Dep’t, The Judge 

Advoc. Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law Deskbook, ch. 2: Purpose (2009). 

14 See 31 U.S.C. § 3302(b): “[A]n official or agent of the Government receiving money for the 

Government from any source shall deposit the money in the Treasury as soon as practicable without 

deduction for any charge or claim.” 

15 See 31 U.S.C. § 3302(b); see also, Interest Earned on Unauthorized Loans of Fed. Grant Funds, B246502, 71 Comp. Gen. 387 (1992). 

16 See, Use of Appropriated Funds by Air Force to Provide Support for Child Care Centers for Children 

of Civilian Employees, B-222989, 67 Comp. Gen. 443 (1988); see also, Bureau of Alcohol, Tobacco, and 

Firearms--Augmentation of Appropriations-Replacement of Autos by Negligent Third Parties, B-226004, 

67 Comp. Gen. 510 (1988). 

17 An augmentation is an action by an agency that increases the effective amount of funds available in an 

agency’s appropriation. Generally, this results in expenditures by the agency in excess of the amount 

originally appropriated by Congress. Absent an exception, augmenting appropriated funds will likely 

195 Chapter VII - Fiscal Considerations 
 

 

 

 

Rule of Law Handbook 

expends nonappropriated funds18 or expends funds that were appropriated to a different federal 

agency. Appropriated funds designated for one agency may generally not be used by a different 

agency.19 If two funds are equally available for a given purpose, an agency may elect to use 

either, but once the election is made, the agency must continue to charge the same fund.20 The 

election is binding even after the chosen appropriation is exhausted.21 

Congress, however, has enacted limited statutory exceptions to the Miscellaneous 

Receipts and Augmentation prohibitions. The most significant of these statutory exceptions are 

the various authorities allowing for Interagency Acquisitions, and the limited Transfer Authority 

that Congress provides to DOD to transfer funds between congressionally specified 

appropriations. 

“Interagency Acquisition” is the term used to describe the procedure by which an agency 

that requires supplies or services (the requesting agency) obtains them through another federal 

government agency (the servicing agency). The IA authorities allow agencies, under certain 

circumstances, to retain funds from other agencies and/or augment their appropriations with 

appropriations from other agencies.22 The Economy Act is an example of a statutory authority 

that permits a Federal agency to order supplies or services from another agency. For these 

transactions, the requesting agency must reimburse the performing agency fully for the direct and 

indirect costs of providing the goods and services.23 IAs become prominent during rule of law 

activities when DOD executes DOS-funded missions, and vice-versa. In these circumstances, 

DOD agencies effectively operate as a “subcontractor” for DOS on DOS-funded projects.24 

Consult agency regulations for IA order approval requirements.25 When DOS transfers foreign 

assistance funds to DOD, it relies upon a provision in the Foreign Assistance Act, section 632, 

which authorizes the transfer of funds to other agencies. While this is similar to the Economy 

violate one or more of the following: the U.S. Constitution, the Purpose Statute, the Miscellaneous 

Receipts Statute, and the Antideficiency Act (ADA); see Cont. & Fiscal L. Dep’t, The Judge Advoc. 

Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law Deskbook, ch. 2: Purpose (2009); see also,
 

Nonreimbursable Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 

1532 (prohibiting transfers from one appropriation to another except as authorized by law). 

18 Nonappropriated funds are funds received by the agency from any entity other than Congress. 

19 See, Secretary of the Navy, B-13468, 20 Comp. Gen. 272 (1940); Bureau of Land Management—
 

Disposition of Water Res. Council Appropriations Advanced Pursuant to the Economy Act, B-250411, 72 

Comp. Gen. 120 (Mar. 1, 1993).

20 See Funding for Army Repair Projects, B-272191, Nov. 4, 1997. 

21 Honorable Clarence Cannon, B-139510, May 13, 1959 (unpub.) (Rivers and Harbors Appropriation 

exhausted; Shipbuilding and Conversion, Navy, unavailable to dredge channel to shipyard.) 

22 See, e.g., Economy Act, 31 U.S.C. § 1535; Foreign Assistance Act (FAA), 22 U.S.C. § 2344, 2360, 

2392 (permitting foreign assistance accounts to be transferred and merged); Emergency Presidential 

drawdown authority. 10 U.S.C. § 2205 (exception to Miscellaneous Receipts Statute). 

23 See, Washington Nat’l Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674 (1978)
 

(depreciation and interest); Obligation of Funds Under Mil. Interdepartmental Purchase Requests, B196404, 59 Comp. Gen. 563 (1980); see also, DOD 7000.14-R, vol. 11A, ch. 1, para. 010201.J. (waiving 

overhead for transactions within DOD). 

24 THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK
 

299 (July 2009). 

25 See Federal Acquisition Regulation Subpart 17.5; Defense Federal Acquisition Regulation Subpart 

217.5; see also, Army Federal Acquisition Regulation Supplement Subpart 17.5.
 

Chapter VII – Fiscal Considerations 196 
 

 

 

Rule of Law Handbook 

Act in some regards, there are significant differences, including the fact that certain section 632 

transfers serve to obligate the funds transferred, without the need to deobligate unused funds at 

the end of the fiscal year, as is required with Economy Act transactions.26 

Transfer authority is a second major exception to the miscellaneous receipts and 

augmentation prohibitions that affect rule of law activities. Transfer authorities are “annual 

authorities provided by the Congress via annual appropriations and authorization acts to transfer 

budget authority from one appropriation or fund account to another.”27 In other words, statutory 

transfer authority28 allows an agency to “shift funds” between different appropriations without 

violating the miscellaneous receipts prohibitions, the augmentation prohibitions, or the 

Antideficiency Act (ADA).29 Unless provided for within the statutory transfer authority, 

however, the transferred funds retain the same Purpose, Time, and Amount restrictions after the 

funds have been transferred to a different appropriation.30 For the purposes of rule of law 

activities, the most significant appropriations with transfer authority are the Iraq Security Forces 

Fund (ISFF) and the Afghanistan Security Forces Fund (ASFF). These appropriations, and their 

respective transfer authorities, are discussed in below. 

B.	 Funding US Military Operations (FUSMO) and Rule of 

Law Activities 

1.	 Foreign Assistance Generally 

There is no “deployment exception” to the general fiscal law framework. The same fiscal 

limitations regulating the obligation and expenditure of funds in garrison apply to FUSMO. The 

focus of FUSMO is how to fund operations whose primary purpose is to benefit foreign 

militaries, foreign governments, and foreign populations. Rule of law activities fall within the 

26 But see, Expired Funds and Interagency Agreements between GovWorks and the Dep’t of Defense, B308944, July 17, 2007 (finding that DOD improperly extended the availability of funds by “parking” 

them at GovWorks).

27 Dep’t of Defense Financial Mgmt. Reg. (DOD FMR), vol. 2A, ch. 1, para. 010107. 58. (Oct. 2008); see 

also DOD FMR, vol. 3, ch. 3, para. 030202 (Nov. 2008) (transfers often require notice to the appropriate 

Congressional subcommittees. Most DOD transfers require the approval of the Secretary of Defense or 

his/her designee, but some transfers require the approval of the Office of Management and Budget 

(OMB), or even the President.).

28 31 U.S.C. § 1532. 

29 An unauthorized transfer also violates the Purpose Statute, 31 U.S.C. § 1301(a), because it constitutes 

an unauthorized augmentation of the receiving appropriation. For detailed legal analysis of transfer 

authorities, see Cont. & Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Center & Sch., U.S. Army, 

Fiscal Law Deskbook , ch. 12 (2009). 

30PRINCIPLES OF FED. APPROPRIATIONS LAW, ch. 2, 2-24-28, GAO-04-261SP (U.S. Gov’t Accountability 

Office, Office of the General Counsel) (3d ed. vol. I 2004). (several GAO decisions have interpreted 31 

U.S.C. § 1532 to mean that unless a particular statute authorizing the transfer provides otherwise, 

transferred funds are subject to the same purpose and time limitations applicable to the donor 

appropriation—the appropriation from which the transferred funds originated; for example, if funds from 

a one-year appropriation were transferred into a five-year appropriation, the transferred funds would be 

available only for one year.). 

197 Chapter VII - Fiscal Considerations 
 

Rule of Law Handbook 

FUSMO framework because their primary intent is improve the rule of law of foreign 

government agencies, foreign government institutions, and foreign civil institutions. 

The general rule in FUSMO is that the Department of State, and not DOD, funds Foreign 

Assistance. Foreign Assistance includes Security Assistance to a foreign military, police forces 

or other security-related government agency, Development Assistance for major infrastructure 

projects, and Humanitarian Assistance directly to a foreign population. As a result, rule of law 

activities will generally be classified as Foreign Assistance, and will be funded by the DOS. 

There are two exceptions to the FUSMO general rule that DOS funds Foreign Assistance. 

The first exception is the “Interoperability, Safety, and Familiarization Training” exception, 

colloquially referred to as the “little t” training exception. DOD may fund the training (as 

opposed to goods and services) of foreign militaries with O&M only when the purpose of the 

training is to enhance the Interoperability, Familiarization, and Safety of the foreign military 

with US military units, and it does not rise to the level of Security Assistance Training.31 This 

exception applies only to training of foreign militaries, not police forces or other foreign 

government agencies, and as a result will normally be inapplicable in most rule of law activities. 

The second exception to the FUSMO general rule that DOS funds Foreign Assistance is 

that DOD may fund Foreign Assistance operations if Congress has provided a specific 

appropriation and/or authorization to execute the contemplated mission. Therefore, rule of law 

activities may be funded with DOD appropriations if Congress has provided a specific 

appropriation, or an authorization to access an appropriation, for the rule of law operation 

contemplated by the command. Subsection Five will discuss the appropriations and 

authorizations available to the Department of State to conduct rule of law activities. DOD 

normally accesses these DOS funds via Interagency Acquisitions. 

Overhanging all military rule of law activities are two general statutory prohibitions on 

the provision of USG assistance to foreign governments. The first prohibition is a general 

statutory prohibition on funding foreign law enforcement, contained in section 660 of the 

Foreign Assistance Act (FAA), which prohibits the use of funds available to carry out the FAA 

to “provide training or advice or provide any financial support, for police, prisons, or other law 

enforcement forces for any foreign government ... .”32 There are a number of exceptions to this 

restriction, including one enacted in 1996 to fund law enforcement and rule of law activities, 

specifically allowing: 

assistance provided to reconstitute civilian police authority and capability in the 

post-conflict restoration of host nation infrastructure for the purposes of 

supporting a nation emerging from instability, and the provision of professional 

public safety training, to include training in internationally recognized standards 

31 See The Honorable Bill Alexander, House of Representatives, B-213137, Jan. 30, 1986 (unpublished 

GAO opinion) ("[M]inor amounts of interoperability and safety instruction [do] not constitute "training" 

as that term is used in the context of security assistance, and could therefore be financed with O&M 

appropriations."); see also Cont. & Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Center & Sch., U.S. 

Army, Fiscal Law Course Deskbook, ch. 10, Funding U.S. Military Operations (FUSMO) (2009) 

(provides the legal requirements to apply the “little t” training exception, along with examples of what 

constitutes “little t” training versus Security Assistance Training.).

32 22 U.S.C. § 2420(a). 

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of human rights, the rule of law, anti-corruption, and the promotion of civilian 

police roles that support democracy.33 

The result is that despite the general prohibition, most rule of law operations properly 

funded by the Department of State will fit into the exception authorizing the provision of the law 

enforcement and rule of law aid, as long as it is funded with Department of State appropriations 

and authorizations. 

The second prohibition is commonly referred to as the “Leahy Amendment.” The Leahy 

Amendment was first enacted as an amendment in the 1997 Foreign Operations Appropriation 

Act (FOAA is the annual DOS Appropriations Act), and is now enacted in the Foreign 

Assistance Act (Title 22). It prohibits the USG from providing assistance under the Foreign 

Assistance Act or Arms Export Control Act to units of foreign security forces, if the DOS has 

credible evidence that such units have committed gross violations of human rights, unless the 

Secretary of State determines and reports that the government of such country is taking effective 

measures to bring the responsible members of the security forces unit to justice.34 Similar 

language is also found in yearly DOD Appropriations Act prohibiting the DOD from funding any 

training program involving a unit of the security forces of a foreign country if the DOS has 

credible information that the unit has committed a gross violation of human rights, unless all 

necessary corrective steps have been taken.35 

The DOS’s position as lead agency in foreign assistance and reconstruction is mirrored in 

the fiscal organization for rule of law and other reconstruction activities. Funding for some postconflict security efforts in Afghanistan and Iraq, for example, has come not from DOD “Title 

10” authority but from DOS “Title 22” authority.36 When DOD executes these DOS-funded 

missions via Interagency Acquisitions, DOD agencies effectively operate as a “subcontractor” 

for DOS on DOS-controlled projects.37 

2. Department of State Appropriations for Rule of Law Activities 

The exact contours of the rule of law activity being considered by the unit and its 

interagency partners will determine if an appropriation and/or authorization may be available 

from a Purpose standpoint. For a detailed discussion of all of the relevant appropriations and 

authorizations, including their respective Purpose, Time, and Amount restrictions, see the Fiscal 

Law Deskbook, Chapter 10: FUSMO.38 In addition, the DOS has two appropriations that have 

33 22 U.S.C. § 2420(b)(6). See generally CENTER FOR LAW AND MILITARY OPERATIONS, INTERAGENCY 

HANDBOOK, 207-12 (2004) [hereinafter INTERAGENCY HANDBOOK].

34 22 U.S.C. § 2304(a)(2). 

35 See, e.g., Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, § 

8061, Pub. L. No. 110-329 (Sep. 30, 2008). 

36 CENTER FOR LAW AND MILITARY OPERATIONS, FORGED IN THE FIRE 220 (2006) (regarding the Afghan 

National Army) [hereinafter FORGED IN THE FIRE].

37 THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK
 

255 (Aug. 2006); INTERAGENCY HANDBOOK, supra note 33, at 210.
 38 Cont. & Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law 

Deskboook, ch. 10, Funding U.S. Military Operations (FUSMO) (2009); see also THE JUDGE ADVOCATE 

GENERAL’S LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK 245, ch. 17: Fiscal Law (July
 

2009).
 

199 Chapter VII - Fiscal Considerations 
 

 

Rule of Law Handbook 

acquired a primary role in funding rule of law activities executed by Provincial Reconstruction 

Teams (PRTs) and the embedded Provincial Reconstruction Teams (ePRTs). These two 

appropriations are the Economic Support Fund (ESF) and funding for the Bureau of International 

Narcotics and Law Enforcement Affairs (INL). Each is discussed below in detail. While 

providing a bulk of US funding for rule of law activities, there are several other funding sources 

from other agencies. A rule of law practitioner should seek out other agency representatives and 

coordinate funding for proposed projects. 

3. Department of State Economic Support Fund 

The Economic Support Fund (ESF) is a prominent DOS funding source for rule of law 

operations. The FAA authorizes ESF assistance in order to promote the economic or political 

stability of foreign countries.39 The ESF funds programs all over the world; its application is not 

limited to efforts in Iraq and Afghanistan. Generally, the ESF has a 2-year period of availability 

and is appropriated annually in the Foreign Operation Assistance Act (FOAA), the DOS 

equivalent to the annual DOD Appropriations Act. The most recent FOAA appropriations for the 

ESF were $2.5 billion appropriated in the FY07 FOAA (P.L. 110-28), available for new 

obligations until 30 September 08; $2.99 billion appropriated in the FY08 Consolidated 

Appropriations Act (CAA) (P.L. 110-161), available for new obligations until 30 Sep 2009. 

Additionally, the 2009 Supplemental Appropriation Act includes an additional amount for the 

ESF of $2.97 billion to remain available until September 2010.40 (These funds are sometimes 

earmarked for certain countries or efforts in a particular region; the amounts are not for Iraq and 

Afghanistan exclusively.) In Iraq, rule of law practitioners should also be aware of “matching 

fund” requirements that may apply to ESF or other Department of State funds. The 2009 

Supplemental Appropriations Act added a requirement for the Government of Iraq to also 

contribute financially to certain programs.41 

In Iraq, ESF is used to pursue one of three foreign assistance objectives: the Security 

Track, the Political Track, and the Economic Track. Each of the three major ESF tracks is 

allocated into several subprograms that target specific initiatives that support the primary 

purpose of the ESF. 

The ESF’s Security Track is allocated into six different subprograms.42 Three of those 

subprograms are generally available to fund rule of law activities: the Provincial Reconstruction 

39 See 22 U.S.C. § 2346. 

40 Act of June 24, 2009, Pub. L. No. 111-32, 123 Stat. 1859, 1892-93 (2009). Notably, this supplemental 

appropriation discusses “cross border stabilization and development programs,” which are administered 

by DOS’s Special Representative for Afghanistan and Pakistan. 

41 Id.( Section 1106(b) includes a “matching requirement,” implemented by the Department of State’s 

April 9, 2009, “Guidelines for Government of Iraq Financial Participation in United States GovernmentFunded Civilian Assistance Programs and Projects.”)

42 The six subprograms under the ESF’s Security Support Track are: the PRT/PRDC Funds, the Local 

Governance Program Funds, the PRT Quick Response Fund (PRT QRF), the Community Stabilization 

Program Fund, the Infrastructure Security Program Fund (for Oil, Water, and Electricity), the Community 

Action Program, which manages the Marla Ruzicka Iraqi War Victims Fund. See Department of State 

Report on Iraq Relief and Reconstruction, July 2008, Section 2207 Report to Congress, APPENDIX III: 

Economic Support Funds (ESF) and Other Fund Sources, available at 

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Team/Provincial Reconstruction Development Council (PRT/PRDC) Projects Program, the 

Local Governance Program, and the PRT Quick Response Fund (PRT QRF). 

The primary purpose of the PRT/PRDC Projects Program funds is for small projects 

(average: $1.5 million) that improve provincial government capacity to provide essential 

services. It is implemented and overseen by the Department of State. It is executed for the DOS, 

however, by the Army Corps of Engineers, Gulf Region Division (USACE GRD) via DOS FAA 

section 632 Interagency Acquisitions (IAs) authority, through Military Interdepartmental 

Purchase Requests (MIPRs). PRT/PRDC programs are approved by the DOS at the US Embassy, 

Iraq.43 

The primary purpose of the Local Governance Program is to promote diverse and 

representative citizen participation in provincial, municipal, and local councils. It is implemented 

and overseen by the US Agency for International Development (USAID). These projects are 

executed by the PRTs and “embedded” PRTs (ePRTs) on behalf of USAID via FAA Section 632 

IAs, through MIPRs. The approval authorities for these projects are USAID program managers 

at the US Embassy, Iraq.44 

The PRT QRF is the least cumbersome subprogram of the ESF Security Track, due to its 

broad purpose and lower approval authorities. The DOS approved the QRF resource stream in 

August 2007 in Iraq to enable PRTs a “flexible mechanism” to fund local or provincial level 

capacity building projects.45 (There is no counterpart to QRF in Afghanistan.)46 As a result, it is 

the most accessible ESF subprogram to fund the smaller-scale rule of law activities that PRTs 

and ePRTs execute. The primary purpose of the PRT QRF is for grants (to non-governmental 

organizations or NGOs) and purchases/micro-purchases (to contractors) so the PRTs/ePRTs can 

support local neighborhoods and government officials or members of community-based 

organizations, as well as small project needs for the provinces. The PRT QRF may be used for 

the following projects under its broad purpose: (1) encouraging programs for youth and 

particularly those that provide youth with practical opportunities to prepare for a productive 

career and to make contributions to the improvement in their communities; (2) fostering 

networks among local civil society groups, municipal governments, and the business community, 

as an avenue toward promoting effective and transparent delivery of government services at the 

local level; (3) encouraging women’s participation in the market-based economy; (4) promoting 

public accountability projects that include anti-corruption and transparency components, (5) 

promoting the rule of law and legal reforms including legal rights educations and property rights 

http://www.state.gov/documents/organization/109441.pdf (the FY 2005 Continuing Resolution and FY04 

Emergency Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan required 

quarterly reports for the use of Reconstruction efforts in Iraq. This is an example of a fiscal control 

mechanism employed by congress.). 

43 Id. 

44 Id. 45 H. COMM. ON ARMED FORCES, 110TH CONG., AGENCY STOVEPIPES VS. STRATEGIC AGILITY: LESSONS 

WE NEED TO LEARN FROM PROVINCIAL RECONSTRUCTION TEAMS IN IRAQ AND AFGHANISTAN 22 

(Comm. Print Apr. 2008) [hereinafter AGENCY STOVEPIPES] ; Office of the Special Inspector General for 

Iraq Reconstruction, Opportunities to Improve the Management of the Quick Response Fund, SIGIR-09­

011 (Jan. 29, 2009).

46 AGENCY STOVEPIPES, supra, at 22. 

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administration, and (6) supporting specific projects for the environment or to promote public 

health. The PRT QRF is implemented by DOS and/or USAID. The approval levels vary on the 

type of purchase and/or grant. 

Projects which require funds larger than $200K or are complex in scope/statement of 

work should utilize PRDC methodology. The PRT/ePRT Team Leader will determine whether a 

micro purchase, grant, or procurement is the proper vehicle and entity to use. Micro purchases 

are capped at $25,000 and fall within “notwithstanding authority” provided by a memorandum 

from Department of State’s Assistant Secretary for Near East Asia (NEA) Affairs. 

For all contracts/procurements where micro purchase authority is not used, USAID or 

JCCI/A (Joint Contracting Command-Iraq/Afghanistan) will be the contracting officer based on 

subject matter expertise, and not necessarily on a dollar threshold. Micro purchases up to 

$25,000 may be made by a PRT/ePRT Team Member, if appropriate. 

The ESF’s Economic Track is allocated into four different subprograms.47 Of those four 

subprograms, only the Targeted Development Program (TDP) is significant for rule of law 

activities. The other subprograms focus on large scale economic support infrastructure and will 

generally be unavailable for most rule of law activities. The purpose of the TDP is for grants for 

NGO’s to support economic, social, and governance initiatives in areas of conflict in Iraq. The 

focus of the TDP is on conflict mitigation, building national unity, and other developmental 

efforts. The Ambassador, Iraq, is the approval level for the TDP grants. 

Finally, the ESF’s Political Track is allocated into four different subprograms.48 While 

not robustly used early on in stability operations in Iraq, funds from this track have supported 

several large scale rule of law projects, including case support for on-going high-visibility 

criminal trials and the coordination of legal matters related to the transfer of detainees to 

Government of Iraq custody. Democracy and Civil Society programs in the Political Track have 

also funded programs such as judicial procedural awareness training to legal and security force 

professionals.49 

47 The four subprograms under the ESF’s Economic Track are: the O&M Sustainment of Infrastructure 

(executed by the Army Corps of Engineers, Gulf Region Division (USACE GRD) through an Interagency 

Agreement), the Inma Agriculture Private Sector Development Project (executed by USAID), the 

Infrastructure Capacity Development Training & Technical-Level Management Program (executed by 

USACE GRD), and the Targeted Development Program (implemented by the Ambassador, Iraq).). See 

Department of State Report on Iraq Relief and Reconstruction, July 2008, Section 2207 Report to 

Congress, APPENDIX III: Economic Support Funds (ESF) and Other Fund Sources, available at 

http://2001-2009.state.gov/documents/organization/109441.pdf (last visited Aug. 23, 2009). 

48 The four subprograms under the ESF’s Political Track are: the Ministerial Capacity Development 

Program; the Policy, Legal and Regulatory Reform Program, the Democracy and Civil Society Program, 

and the Regime Crimes Liaison Office programs (executed by the Department of Justice). See 

Department of State Report on Iraq Relief and Reconstruction, July 2008, Section 2207 Report to 

Congress, APPENDIX III: Economic Support Funds (ESF) and Other Fund Sources, available at 

http://2001-2009.state.gov/documents/organization/109441.pdf 

49 Id. 

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4. Bureau of International Narcotics and Law Enforcement Affairs Funding 

The Department of State has statutory authority to “furnish assistance to any country or 

international organization ... for the control of narcotic and psychotropic drugs and other 

controlled substances, or for other anticrime purposes.”50 Congress appropriates funds for these 

purposes on an annual basis in the Foreign Operations Appropriations Act (FOAA), the annual 

appropriations act for the Department of State under the International Narcotics, Crime and Law 

Enforcement (INCLE) account. In the conflicts in Iraq and Afghanistan, Congress has provided 

additional funds as well through supplemental appropriations. Notably, INCLE funding supports 

multiple countries in anti-narcotic and anti-crime efforts, not only Iraq and Afghanistan. 

Although one of the primary purposes of INCLE funds is counter-narcotics, Congress has 

also authorized the use of INCLE funds “for other anticrime purposes.”51 This broad purpose 

mandate allows INCLE to be used for a majority of rule of law activities, since many of these 

operations are generally intended to decrease crime in some fashion. 

The mission of the Department of State’s Bureau of International Narcotics and Law 

Enforcement Affairs (INL) is to: 

[A]dvise the President, Secretary of State, other bureaus in the Department of 

State, and other departments and agencies within the U.S. Government on the 

development of policies and programs to combat international narcotics and crime 

... . INL programs support two of the State Department's strategic goals: (1) to 

reduce the entry of illegal drugs into the United States; and (2) to minimize the 

impact of international crime on the United States and its citizens. 

Counternarcotics and anticrime programs also complement the war on terrorism, 

both directly and indirectly, by promoting modernization of and supporting 

operations by foreign criminal justice systems and law enforcement agencies 

charged with the counter-terrorism mission.52 

The Office of Civilian Police and Rule of Law Programs (CIVPOL) falls under the INL 

umbrella. The CIVPOL has the broad mission of providing law enforcement, criminal justice, 

and corrections experts and assistance in “post-conflict societies and complex security 

environments.”53 The FY2009 Supplemental Appropriation request and subsequent 

congressional conference report provide a snapshot of INLCE fund versatility. The Department 

of State requested $129 billion additional INCLE funds for activities such as counter-narcotics 

planning and rule of law in its Foreign Operations supplemental request. Congress gave the 

INCLE fund $4 million above the request and included additional purposes for the funds, such as 

rule of law programs that combat violence against women and girls, and a “good performers 

50 22 U.S.C. § 2291 (4) (emphasis added). 

51 Id. (See Act of July 21, 1996, Pub. L. No. 104-164, 110 Stat. 1429 (amending the Foreign Assistance 

Act to broaden International Narcotics Control Assistance). 

52 Bureau of International Narcotics and Law Enforcement Affairs Department of State Webpage, 

available at http://www.state.gov/p/inl/. 

53See Office of Civilian Police and Rule of Law Programs, http://www.state.gov/p/inl/civ/index.htm (last 

visited on 20 Aug. 2009). 

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initiative,” which rewards provinces that show a reduction in poppy cultivation.54 Examples of 

other INCLE-funded rule of law programs in Afghanistan include: legal education redesign for 

core curriculum at Kabul University encompassing legal writing, teaching methodology, and 

computer research; courthouse renovation and construction; training for judicial officials and 

judicial candidates; educational opportunities for Afghan law professors to earn US degrees; 

building prisons and mentoring corrections personnel, and programs to introduce legal rights 

education to women audiences and increase legal aid to women and girls.55 

INL also receives funding from the DOD’s Iraq Security Forces Fund (ISFF) and 

Afghanistan Security Forces Fund (ASFF) appropriations via interagency acquisitions (IAs) and 

interagency transfer of funds. The ISFF/ASFF contains Congressional “transfer authority,” 

which authorizes the DOD to transfer these ISFF/ASFF to other agencies to further the basic 

purposes of the ISFF/ASFF.56 DOD, for example, has transferred over $1.42 billion to the 

Bureau of International Narcotics and Law Enforcement Affairs since the enactment of the ISFF 

in fiscal year 2005.57 Whenever DOD transfers ISFF funds to the Bureau of International 

Narcotics and Law Enforcement Affairs, these funds are designated “ISFF/INL funds.”58 DOD 

transfers funds to the INL so that the INL may execute some of the training of Iraqi police 

forces. 

When ISFF/INL funds are transferred from DOD to the INL, however, they retain their 

basic statutory purpose limitations enacted by Congress in the ISFF.59 The basic purpose of the 

ISFF is “[T]o train and equip the security forces of Iraq (ISF)... .”60 Note that the basic purpose 

of the ISFF/INL is much more restrictive than the broad “anticrime” purposes for which 

Congress appropriates INCLE funds. As a result, when considering whether a PRT or ePRT may 

fund a rule of law operation with funds available to the Bureau of International Narcotics and 

Law Enforcement Affairs, it will be critical for the advising Judge Advocate to identify which 

type of funding is available for the rule of law activity – ISFF/INL funds or INCLE funds.61 Only 

then will the advising JA be able to provide a legal opinion as to whether the respective fund 

may be legally accessed to fund the rule of law operation in question. The ISFF and ASFF are 

discussed in greater detail below. 

54 Act of June 24, 2009, Pub. L. No. 111-32, 123 Stat. 1859, 1892-93 (2009). 

55 CONGRESSIONAL RESEARCH SERVICE, AFGHANISTAN: U.S. FOREIGN ASSISTANCE 6-8 (July 8, 2009). 

56 See, e.g., Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and 

Tsunami Relief Act, 2005, Pub. L. 109-13 (May 11, 2005); see also 2008 Supplemental Appropriations 

Act, Pub. L. 110-252, Title IX, Ch. 2 (30 June 2008).

57 2008 SIGIR Report 25 (Jul. 30, 2008). 

58 Id. 59 See supra note 22. 

60 2008 Supplemental Appropriations Act ,P. L. 110-252, Title IX, Ch. 2 (30 June 2008). 

61 For example, a unit may be considering a rule of law operation to employ a private security company
 

for physical security to Iraqi judges to ensure their safety. This operation would not be able to be funded 

with ISFF/INL funds because a private security company is NOT considered to be under the “direct 

control” of the Government of Iraq (GOI). This operation, however, may be funded with INCLE funds 

since it arguably falls within the broad “anticrime” purpose of the INCLE appropriation. 

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C.	 Department of Defense Appropriations for Rule of Law 

Operations 

Recall that general rule in FUSMO is that the DOS, and not DOD, funds Foreign 

Assistance. Rule of law activities will generally be classified as Foreign Assistance, and 

therefore should be funded by DOS unless one of the two exceptions applies. When considering 

the fiscal aspects of rule of law activities, the second exception is the focus for the advising 

Judge Advocate. 

The second exception to the FUSMO general rule that DOS funds Foreign Assistance is 

that DOD may fund Foreign Assistance operations if Congress has provided a specific 

appropriation and/or authorization to execute the contemplated mission. Therefore, rule of law 

activities may be funded with DOD appropriations if Congress has provided a specific 

appropriation, or an authorization to access an appropriation, for the rule of law operation 

contemplated by the command. 

The Department of Defense has three appropriations available to it that have acquired a 

primary role in funding rule of law activities by Provincial Reconstruction Teams (PRTs) and the 

“embedded” Provincial Reconstruction Teams (ePRTs). These three appropriations are: the Iraq 

Security Forces Fund (ISFF), the Afghanistan Security Forces Fund (ASFF), and the 

Commander’s Emergency Response Program (CERP) fund. In addition to these three 

congressional appropriations, Iraqi-funded Commander’s Emergency Response Program (ICERP) also plays a key role in funding rule of law activities in Iraq. Each of these funding 

mechanisms is discussed in greater detail below. 

1.	 Iraq Security Forces Fund (ISFF) / Afghanistan Security Forces Fund (ASFF) 

The ISFF and ASFF “shall be available to the SECDEF, notwithstanding any other 

provision of law, for the purpose of allowing the Commander [Combined Forces CommandAfghanistan for ASFF and Multi-National Security Transition Command-Iraq for ISFF], or the 

Secretary's designee, to provide assistance, with the concurrence of the Secretary of State, to the 

security forces of [Afghanistan for ASFF, Iraq for ISFF] including the provision of equipment, 

supplies, services, training, facility and infrastructure repair, renovation, and construction, and 

funding ... ."62 Congress created two appropriations, the Afghanistan Security Forces Fund and 

the Iraq Security Forces Fund, on May 11, 2005, to enable the DOD to “train and equip” the 

security forces of Afghanistan and Iraq, respectively. (Prior to the creation of the ASFF and 

ISFF, Congress authorized the training and equipping of forces in Iraq and Afghanistan from 

O&M accounts. At the onset, only the New Iraqi Army and the Afghan National Army could 

receive support. Later authorizations expanded the statutory language to include “security 

forces.”)63 Congress initially appropriated $1.285 Billion for the ASFF and $5.7 Billion for the 

ISFF, to remain available for new obligations until Sept. 30, 2006.64 Since fiscal year 2005, 

62 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami
 

Relief Act, 2005, Pub. L. 109-13 (May 11, 2005). 

63 Compare Pub. L. No. 108-106 with Pub. L. No. 109-13. 

64 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami
 

Relief Act, 2005, Pub. L. 109-13 (May 11, 2005). 

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Congress has generally appropriated ISFF/ASFF funds on a yearly basis with a period of 

availability of ISFF and ASFF of two years.65 Current funds for the ISFF (available until 30 

September 2010) come from the 2009 Supplemental Appropriation, which actually rescinds $1 

billion from a previous appropriation, but then adds $1 billion back into the ISFF account.66 The 

Department of Defense requested this change in order to extend the period of availability. The 

2009 Supplemental Appropriation significantly increased funding to the ASFF by providing $3.6 

billion, available until September 30, 2010.67 The Department of Defense is requesting $7.46 

billion in additional funding for the ASFF in the 2010 appropriation.68 The 2010 budget request 

does not include any language regarding the ISFF, but it does request an addition to the Iraq 

Freedom Fund, a flexible account established for “additional expenses for ongoing military 

operations in Iraq ... .”69 The House of Representatives and Senate versions of bills for 2010 

defense appropriations and authorizations contemplate continued funding for the ASFF; neither 

mention the ISFF.70 Note though, that when the final appropriations and authorizations are 

enacted, they could include additional or entirely new funds with similar purposes to the ISFF or 

ASFF. Because so much of FUSMO is dependent upon the security situation in a given 

environment, fiscal lawyers must stay current. 

The ISFF and ASFF appropriations do not clearly define what forces are considered to be 

the “security forces” of Iraq or Afghanistan. DOD considers the term “security forces” to 

include, however, both military and police forces under the direct control of the governments of 

Iraq and Afghanistan.71 This determination is based on DOD budget request submissions to 

Congress that identify both the military and police forces that will be trained and equipped using 

ISFF and ASFF.72 As a result, the ISFF and ASFF appropriations provide an authorization to 

65 In the 2008 Supplemental Appropriations Act, however, Congress provided ISFF and ASFF funds for 

fiscal year 2009 with a one year period of availability. See 2008 Supplemental Appropriations Act ,P. L. 

110-252, Title IX, Ch. 2 (30 June 2008).

66 Act of June 24, 2009, Pub. L. No. 111-32 § 306 (2009). 

67 Act of June 24, 2009, Pub. L. No. 111-32, 123 Stat. 1859, 1892-93 (2009). 

68 COMPTROLLER, U.S. DEP’T OF DEFENSE, BUDGET AMENDMENT TO THE FY 2010 PRESIDENT’S 

BUDGET REQUEST FOR OVERSEAS CONTINGENCY OPERATIONS (OCO), 7 (Aug. 2009) available at 

http://www.defenselink.mil/comptroller/defbudget/fy2010/fy2010_oco.pdf. 

69 See id.; Emergency Wartime Supplemental Appropriations Act of Apr. 16, 2003, Pub. L. No. 108-11, 

117 Stat. 563 (2003).

70 See, e.g., S. 1390, 111th Cong. § 1507 (July 23, 2009); H.R. 2647, 111th Cong. § 1513 (as introduced 

June 2, 2009). At the time of this writing, no 2010 defense appropriation or authorization had been passed 

by the Congress. 

71 See infra note 84(The following security forces are considered to be under the “direct control” of the 

Government of Iraq (and the equivalent forces for the Government of Afghanistan), and may therefore be 

funded with ISFF and ASFF, respectively: Ministry of Defense Activities (including the Army, Navy, Air 

Force, and Intelligence Service); Ministry of Interior activities (including the Iraqi Police Service, 

National Police, Intelligence Agency, Facility Protection Service, Dept. of Border Enforcement, and Dir. 

of Ports of Entry); Iraqi Special Operations Forces, and; Iraqi Corrections Service Officers of the Ministry 

of Justice).

72 For example, the DOD Global War on Terror Funding Requests to Congress generally separates the 

ISFF and ASFF funding request into two major categories: funds for the Iraq and Afghanistan National 

Armies, and funds for the Iraq and Afghanistan National Police. See, e.g., Fiscal Year 2008 Global War 

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DOD to provide assistance to non-military forces, which as a general matter, DOD is not 

authorized to do.73 Generally, however, the ISFF and ASFF may not be used to fund police 

forces that are not under the direct control of the governments of Iraq and Afghanistan.74 In 

every ISFF and ASFF appropriation, Congress has also provided DOD the ability to “transfer” 

funds to other appropriations.75 The transfer authority of the ISFF and ASFF are identical.76 The 

Department of Defense has used this transfer authority to transfer over $1.42 billion to the INL 

since the enactment of the ISFF in fiscal year 2005.77 

2. Commander’s Emergency Response Program (CERP) 

The second major statutory authorization that allows DOD to fund many rule of law 

activities is the Commander’s Emergency Response Program (CERP) fund. CERP is a statutory 

authorization to obligate funds from the DOD Operations and Maintenance (O&M) 

appropriation for the primary purpose of “enabling United States military commanders in Iraq to 

respond to urgent humanitarian relief and reconstruction requirements within their areas of 

responsibility by carrying out programs that will immediately assist the Iraqi people; and ... for a 

similar program to assist the people of Afghanistan.”78 The current CERP authorization is $1.5 

billion, contained in the 2009 National Defense Authorization Act (NDAA). The Department of 

Defense requested $1.3 billion in the 2010 NDAA, which had not yet been enacted at publication 

time. 

In addition to the broad purposes of CERP, Congress also authorized the Secretary of 

Defense to “waive any provision of law not contained in this section that would (but for the 

waiver) prohibit, restrict, limit, or otherwise constrain the exercise of that authority.”79 The 

Secretary of Defense subsequently waived various statutes that would limit the execution of 

CERP, including the Competition in Contracting Act (CICA) and the Foreign Claims Act 

on Terror Request 35, Department of Defense (February 2007), available at 

http://www.defenselink.mil/comptroller/defbudget/fy2008/ (last visited Aug. 23, 2009). 

73 22 U.S.C. § 2420(a). 

74 See infra note 84 (The following “security forces,” for example, are NOT considered to be under the 

“direct control” of the Government of Iraq (and any equivalent forces for the Government of 

Afghanistan), and may therefore generally NOT be funded with ISFF and ASFF, respectively: Concerned 

Local Citizens (also known as “Sons of Iraq”), Kurdish Peshmerga, and Iraqi Civil Defense Corps. 

Additionally, the following Iraqi forces are under the control of the GoI, but are not considered to fall 

within the definition of “security forces”: Iraqi Firefighters of the Ministry of Interior’s Objective Civil 

Security Forces, and the Iraqi Railroad Police). 

75 See, e.g., Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and 

Tsunami Relief Act, 2005, Pub. L. 109-13 (May 11, 2005); see also 2008 Supplemental Appropriations 

Act ,Pub. L. 110-252, Title IX, Ch. 2 (30 June 2008).

76 See Supplemental Appropriations Act ,P. L. 110-252, Title IX, (30 June 2008) (the ISFF/ASFF transfer 

authority includes the authorization for the Secretary of Defense to “transfer such funds to appropriations 

for military personnel; operation and maintenance; Overseas Humanitarian, Disaster, and Civic Aid; 

procurement; research, development, test and evaluation; and defense working capital funds to 

accomplish the purposes provided herein... .”). 

77 July 2008 SIGIR Report 25 (Jul. 30, 2008). 

78 Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 [hereinafter 2005 

NDAA], Pub. L. 108-375, § 1201 (Oct. 28, 2004). 

79 2005 NDAA, Pub. L. 108-375, § 1202 (Oct. 28, 2004) (Emphasis added). 

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(FCA).80 The combination of the broad statutory purpose of CERP, the low-level approval 

authority to authorize the use of CERP,81 and the waiver of CICA and the FCA, has provided 

military commanders with an incredibly flexible authorization to conduct Humanitarian 

Assistance operations outside of Department of State Foreign Assistance funding channels and 

restrictions.82 

CERP, however, is restricted to the “urgent humanitarian needs” of the Iraqi and Afghan 

population and may therefore not be used to fund the military and police forces under the direct 

control of the governments of Iraq and Afghanistan.83 As a result, CERP funds are restricted to 

rule of law activities that target the “urgent humanitarian needs” of the Iraqi and Afghan 

populations, and may generally not be used for any rule of law “security operations” with forces 

under the “direct control” of the governments of Iraq or Afghanistan.84 As a result, prior to 

advising units on the legality of using CERP funds to execute a rule of law activity, Judge 

Advocates should scrutinize the statutory and policy restrictions contained in the Money As A 

Weapon System (MAAWS) SOPs (there are versions for both Iraq and Afghanistan) and the 

most recent DOD Comptroller’s CERP policy guidance.85 

A recent development in CERP-funded rule of law projects concerns the distinction 

between construction and reconstruction of facilities. Slight changes in policy guidance between 

2008 and 2009 raised concerns about a possible limitation on building rule of law facilities “from 

ground up” in Afghanistan. (In Iraq, this was not an issue because there were existing structures 

and Iraq reconstruction efforts had been robust for several years.) Judge Advocates should ensure 

80 Memorandum from the Honorable Gordon England, Deputy Secretary of Defense, to the Secretaries of 

the Military Departments, et al., Subject: Waiver of Limiting Legislation for Commander’s Emergency 

Response Program (CERP) for Fiscal Years 2006 and 2007 (Mar. 27, 2006) (on file with author). 

81 2005 NDAA, Pub. L. 108-375, Section 1201 (Oct. 28, 2004) (The CERP authorization allows “military 

commanders” to authorize the obligation of CERP funds. Military commanders include company 

commanders, generally the rank of a U.S. Army Captain. This statutory low-level approval authority, 

however, has generally been limited to higher ranks by policy.).

82 As a result of the waiver of CICA for CERP, for example, CERP-funded projects need not adhere to the 

competition requirements of the Federal Acquisition Regulation (FAR). This waiver led directly to the 

development of the “Iraqi First” and “Afghan First” acquisition programs, which indirectly provided 

numerous Iraqis and Afghans jobs by restricting CERP-funded acquisitions to Iraqi and Afghan 

contractors. The waiver of the FCA allows CERP to fund condolence payments and battle damage claims 

that are normally barred by the FCA when the injuries and/or damages occur during combat operations. 

83 Department of Defense Appropriations Act for Fiscal Year 2006 [hereinafter 2006 DODAA], Section 

9007, Pub. L. 109-148 (CERP funds “may not be used to provide goods, services, or funds to national 

armies, national guard forces, border security forces, civil defense forces, infrastructure protection forces, 

highway patrol units, police, special police, or intelligence or other security forces.”). 

84 Id. 85 See Money As A Weapons System (MAAWS), Multi-National Corps – Iraq, Combined Joint Staff 

Resource Management Standard Operating Procedure (MNC-I CJ8 SOP) (Jan. 26, 2009) (on file with 

author); MAAWS-Afghanistan, 15 May 2009 (on file with author); see also see also DODFMR, vol. 12, 

chap. 27 (January 2009); see also THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, 

OPERATIONAL LAW HANDBOOK 282 (July 2009). 

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that they have the most current guidance on rule of law facility construction, which likely 

requires senior approval authority.86 

3. Iraqi Funded Commander’s Emergency Response Program (I-CERP) 

On 3 April 2008, Multi-National Force – Iraq (MNF-I) and the Iraqi Supreme 

Reconstruction Council (I-SRC) signed a Memorandum of Understanding (MOU) which 

authorized MNF-I units to execute an Iraqi-funded reconstruction program modeled after CFCERP, named the Government of Iraq CERP (I-CERP).87 The I-CERP was initially funded with 

$270 million by the Government of Iraq, with an additional $30 Million subject to transfer to the 

I-CERP upon the approval of the I-SRC.88 Although similar to CERP in purpose, , the I-CERP 

has significant differences of which Judge Advocates need to be aware. The purpose of the ICERP is for coalition force commanders to execute urgent reconstruction projects for the benefit 

of the Iraqi people in the fifteen non-Kurdish provinces of Iraq.89 Under the same monetary 

approval authorities as CERP, commanders in Iraq may authorize the use of I-CERP to repair or 

reconstruct the following four types of infrastructure projects: water purification plants, health 

clinics, and city planning facilities (including the planning facilities owned by the Government of 

Iraq, the provincial governments, and the local governments).90 By exception, and upon the 

approval of the Major Subordinate Commanding General (the Multi-National Division 

Commander), I-CERP may also be used to repair and reconstruct: roads, sewers, irrigation 

systems, and non-reconstruction projects that promote small business development.91 The initial 

intent of the I-CERP was for the Iraqis to match the reconstruction funding of CERP in Iraq.92 ICERP has become increasingly important as Congress intends for the government of Iraq to 

assume all financial responsibility and phase out the use of CERP.93 One issue fiscal raised by ICERP involved the Miscellaneous Receipts Statute. Recall that an agency must deposit funds it 

receives into the US Treasury General Account, unless Congress authorizes otherwise. In 

response to I-CERP, Congress provided approval to hold and disperse I-CERP funds. 

86 Commander, United States Central Command, Memorandum to Undersecretary of Defense, subject: 

Commander’s Emergency Response Program (CERP) Waiver Guidance Request (June 11, 2009) (on file 

with author).

87 Memorandum of Understanding Between Supreme Reconstruction Council of the Secretariat of the 

Council of Ministers and the Multi-National Force – Iraq, Concerning the Implementation of the 

Government of Iraq Commanders’ Emergency Response Program (I-CERP) [hereinafter I-CERP MOU], 

agreed to and signed by MNF-I on 25 March 2008 and by I-SRC on 3 April 2008 (on file with author). 

88 Id. at 3. 

89 Money As A Weapons System (MAAWS), Multi-National Corps – Iraq, Combined Joint Staff 

Resource Management Standard Operating Procedure (MNC-I CJ8 SOP) (26 January 2009), Appendix C: 

I-CERP (on file with author).

90 Id. 91 Id. 92 I-CERP MOU at 2. 

93 National Defense Authorization Act of 2009, Pub. L. No. 110-417, 122 Stat. 4630, §1214e (Oct. 14, 

2008) (stating “[i]t is the sense of Congress that the Government of Iraq should assume increasing 

responsibility for funding and carrying out projects currently funded by the United States through the 

Commanders’ Emergency Response Program ... .”). 

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D.	 Funding Rule of Law Operations Through Provincial 

Reconstruction Teams 

To access the appropriations and authorizations available for stability and rule of law 

operations, advising JAs will need to understand the basic strategy and structure of the Provincial 

Reconstruction Teams (PRTs) and the Embedded Provincial Reconstruction Teams (ePRTs). 

PRTs and ePRTs currently exist only in Iraq and Afghanistan, but are likely the model for future 

civil-military operations worldwide. 

1.	 Provincial Reconstruction Teams and Embedded Provincial Reconstruction Teams 

Provincial Reconstruction Teams (PRTs)94 are civil-military organizations (CMOs) that 

are staffed by US government (USG) civilian and military personnel to assist foreign provincial 

governments with their reconstruction efforts; their security and rule of law efforts; and their 

political and economic development.95 PRTs were first deployed in Afghanistan in 2002; the 

PRTs in Afghanistan generally number between fifty and one hundred members, including a 

force protection element for the primary interagency PRT staff.96 The success of the PRTs in 

Afghanistan led the USG to incorporate the PRT concept into its new stability and reconstruction 

strategy.97 PRTs were first established in Iraq in November 2005. As of January 2008, there were 

50 PRTs across Iraq and Afghanistan; the US is the lead for 12 in Afghanistan and 22 in Iraq.98 

(The remainder are lead by coalition partners: Canada, Germany, Italy, Lithuania, and the United 

Kingdom.99) PRTs in Iraq are staffed by approximately thirty to eighty personnel each.100 The 

assigned personnel represent various USG agencies, and may include: DOS, USAID, US and 

coalition military including the Corps of Engineers, the Department of Justice (DOJ), and the 

Department of Agriculture.101 Many PRTs also include Iraqi Cultural Advisors.102 PRTs in both 

Iraq and Afghanistan provide their own force protection, but the PRTs in Iraq have a smaller 

94 See generally, Timothy Austin Furin, Legally Funding Military Support to Stability, Security, 

Transition, and Reconstruction Operations, ARMY LAW. ( Oct. 2008) (providing a comprehensive 

overview of the strategic development of the PRT concept, its central role in executing the U.S. 

government’s pre- and post-conflict stabilization and reconstruction strategic policies, and the significant 

fiscal law challenges faced by the PRTs in legally funding stabilization and reconstruction missions 

worldwide).

95 See Furin, supra; see also PRT (Provincial Reconstruction Teams) Fact Sheet, U.S. Embassy, Iraq 

(Mar. 20, 2008), available at http://iraq.usembassy.gov/root/pdfs/factsheetapril2008.pdf [hereinafter PRT 

Fact Sheet], NIMA ABBASZADEH ET AL., PROVINCIAL RECONSTRUCTION TEAMS: LESSONS AND 

RECOMMENDATIONS 4 (Jan. 2008), available at 

http://wws.princeton.edu/research/pwreports_f07/wws591b.pdf. 

96 See Furin, supra note 95, at 43. 

97 Id. at 42. 

98 NIMA ABBASZADEH ET AL., PROVINCIAL RECONSTRUCTION TEAMS: LESSONS AND 

RECOMMENDATIONS 4 (Jan. 2008), available at 

http://wws.princeton.edu/research/pwreports_f07/wws591b.pdf. 

99 Id. 

100 Id. 

101 Id. 102 See Furin, supra note 94, at 41. 

Chapter VII – Fiscal Considerations 210 
 

 

Rule of Law Handbook 

force protection element since they are generally co-located with large coalition Forward 

Operating Bases (FOBs) which provides some of the needed force protection.103 

Embedded Provincial Reconstruction Teams (ePRTs) are directly assigned to Army 

Brigade Combat Teams (BCTs) or Marine Corps Regiments (MCRs), who provide the ePRTs’ 

force protection.104 As a result, ePRTs are staffed solely by the primary interagency civil-military 

staff and tend to be significantly smaller.105 The ePRTs first deployed attached to the “Surge” 

BCTs and MCRs in early 2007.106 Unlike PRTs, who report directly to their respective 

embassies, ePRTs report to the military commander of the BCT or MCR to which they are 

assigned.107 The ePRTs, however, generally conduct the same types of missions as PRTs, 

possibly on a slightly smaller scale. 

Although both PRTs and ePRTs are led by the Department of State Foreign Officer 

assigned to the PRT/ePRT, they tend to fund operations differently due to their structural 

differences. PRTs tend to have greater access to DOS appropriations like the Economic Support 

Fund (ESF), the INCLE, and INL; they tend to access DOD appropriations and authorizations 

like CF-CERP as a supplement to the DOS funds that they receive.108 The ePRTs reverse the 

funding model of PRTs by funding the large majority of their operations with DOD 

appropriations like CF-CERP and accessing DOS appropriations as a supplement.109 

103 Id. at 44. 

104 Id. at 45. 

105 Id. (ePRTs number between twelve and sixteen civil-military staff personnel). 

106 Id. 107 Id. 

108 Id. at 47. 

109 Id. 

211 Chapter VII - Fiscal Considerations 
Rule of Law Handbook 

2. Funding Rule of Law Operations via PRTs, ePRTs and other CMOs 

The Funding Input/Rule of Law Mission Output flowchart above provides a basic visual 

example of the relationship between different appropriations flowing into PRTs, ePRTs, and 

other CMOs (outside Iraq and Afghanistan) and different types of rule of law activities executed 

with the proper purpose funds. 

Regardless of what type of civil-military organization (CMO) funds a rule of law activity, 

whether a PRT, an ePRT, or any other CMO outside of Iraq or Afghanistan, advising Judge 

Advocates (JAs) must understand the basic fiscal restrictions for the fund(s) contemplated to 

execute the mission, with a primary focus on the basic purpose of each appropriation. As the 

discussion of DOS funds in Subsection Five and DOD funds in Subsection Six indicates, each 

fund has different Purpose, Time, and Amount restrictions. 

Due to the dramatically increased Operational Tempo (OPTEMPO) in rule of law 

activities, the PRT, ePRT, or CMO normally requires the appropriate funds faster than the 

Department of State may be able to provide them. As a result, the unit should coordinate with the 

deployed DOS Political Advisor (POLAD) located at the Combined Joint Task Force (CJTF), or 

division level, as early as possible in the planning stages. The unit may also coordinate with the 

DOS Foreign Officers located at the PRTs and ePRTs. 

Chapter VII – Fiscal Considerations 212 
 

Rule of Law Handbook 

In advising her unit, the Judge Advocate should be aware of the cultural, structural, and 

procedural differences between DOD and DOS.110 DOD has the cultural and structural capability 

to plan for operations far in advance via the Military Decision-Making Process (MDMP). DOS, 

on the other hand, generally has neither the structural capability nor the organizational culture 

that would allow it to plan for operations as far in advance or with such detailed specificity as 

DOD. These structural differences between DOD and DOS may affect the speed with which the 

DOS may be able to provide its appropriated funds for rule of law activities. 

110 See Rosemary Hansen, “Defense is from Mars, State is from Venus: Improving Communications and 

Promoting National Security,” U.S. Army War College Strategy Research Project (1998). 

213 Chapter VII - Fiscal Considerations 
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Chapter VII – Fiscal Considerations 214 
 

VIII. Challenges to the Rule of Law 

It is difficult to overstate the challenges facing any rule of law operation. Most would 

agree with former UN Secretary-General Kofi Annan’s assertion that assisting “societies reestablish the rule of law and come to terms with large-scale past abuses, all within a context 

marked by devastated institutions, exhausted resources, diminished security and a traumatized 

and divided population, is a daunting, often overwhelming, task.”1

 It goes without saying that 

rule of law missions are complex, arduous, and painstaking.2

 There are limitless challenges to 

rule of law operations, and this Handbook cannot possibly address all the unique challenges and 

complex problems encountered in rule of law operations. But certain elements, conditions, and 

obstacles are present that encumber the capacity and quality for rule of law interventions.3

 This 

chapter examines some of these challenges. 

A. Security 

Probably the most important concern for the rule of law practitioner is security. Most rule 

of law efforts, at least the kind that most Judge Advocates will find themselves in, will often take 

place in harsh and non-permissive or semi-permissive environments. Thus, the Judge Advocate 

must be cognizant that security issues will likely impede efforts to implement rule of law 

programs. The security concern manifests itself in several ways: 

•	 Insurgent fighting may surface after the general cessation of hostilities 

•	 Political power struggles between warring factions could lead to violence 

•	 Local police capacity to enforce law and order will likely be inadequate 

•	 Courts may be seriously compromised by corruption and/or political intimidation 

•	 Prison and detention facilities may be severely degraded or non-existent 

•	 Violent organized crime and illicit economies may emerge 

•	 Rioting, looting, abductions, revenge killings, and other civilian-on-civilian violence 

may become recurrent 

In the aftermath of conflict in a failed or collapsed state, intervening military forces often 

are required to fill a “security gap” resulting from the breakdown of the prior regime. “At the 

same time, military or security forces may be exercising police-type functions without any 

judicial or civilian oversight.”4 

1

 The Secretary-General, Report of the Secretary-General: The Rule of Law and Transitional Justice in 

Conflict and Post-Conflict Societies, 3, U.N. Doc. S/2004/616 (Aug. 23, 2004). 

2

 JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS?: BUILDING THE 

RULE OF LAW AFTER MILITARY INTERVENTIONS 11 (2006). 

3 See Wade Channell, Lessons Not Learned About Legal Reform, in PROMOTING THE RULE OF LAW 

ABROAD: IN SEARCH OF KNOWLEDGE 137-159. 

4

 UNITED NATIONS DEPARTMENT OF PEACEKEEPING OPERATIONS, PRIMER FOR JUSTICE COMPONENTS IN 

MULTIDIMENSIONAL PEACE OPERATIONS: STRENGTHENING THE RULE OF LAW 4 (2006), available at 

http://pbpu.unlb.org/pbpu/view/viewdocument.aspx?id=2&docid=851. 

215 
 

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Deficient security environments will place pressure on the ability of host-governments to 

implement new laws, promote national reconciliation, and provide basic legal services. “No 

government, least of all one committed to the rule of law, can function effectively if its people 

cannot go about their daily life without fear of being shot, tortured, raped, or bombed.”5 

Security also refers to force protection. The inability of the host nation to create a stable 

situation will potentially require the commander to dedicate resources to force protection and to 

use force in order to protect the force and to accomplish the mission. Use of force, however may 

come with a price: it may be an obstacle to inculcating the population to the notion that no one 

person is above the law and disputes should be resolved by non-violent means.6 

B.	 Military Bias for Lethal Operations and Competing 

Priorities 

Military planners are typically experienced in planning military operations aimed at 

subduing or neutralizing a threat. Even in nation building operations, the emphasis tends to be on 

enforcing security, allowing other actors to execute their missions. For the military, these 

operations are “enemy centric.” 

Rule of law and stability operations are, however, “population-centric” activities. Their 

objective is to create organic governmental institutions and a stable environment for the 

population to enjoy and expand. Concentrating on attacking problems from the perspective of 

defeating or otherwise affecting the conduct of an enemy, the military organization is often illequipped to bring the resources to bear on a problem set where the “enemy” is a system rather 

than a dangerous actor. 

Moreover, rule of law operations are intended to build institutions that advance the host 

nation’s governance. Residual fighting, however, may well cause the diversion of resources to 

combat and force protection. The military commander will be concerned about force protection 

and locating, closing with and destroying the adversary. This is a traditional military role and 

what the military is organized to do. Rule of law operations are ideally non-kinetic. This 

distinction places great pressures on the military staff to plan and act in support of operations that 

are not part of their traditional skill set. This diversion of resources is, in a sense, a competing 

priority. 

It is important that rule of law operations be incorporated throughout the planning 

process, and considered for applicability during all phases of a campaign so that commanders 

will plan for the effect stability operations will have on their resources and the way they fight the 

rest of the campaign.7

 Stability operations require both a different mindset in planning and an 

ability to bring different skill sets to bear. 

5

 STROMSETH, WIPPMAN & BROOKS, supra note 2, at 137. 

6 See section II.B.2. 

7

 U.S. DEP’T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION 

AND RECONSTRUCTION (SSTR) OPERATIONS para. 4 (28 Nov. 2005). 

Chapter VIII – Challenges	 216 
Rule of Law Handbook 

Beware the Classified Information Dilemma 

Operators in the rule of law arena should be mindful of the need to avoid the 

unnecessary use of classified information. Combat operations and stability 

operations generate much more classified information than that to which the rule 

of law practitioner may be accustomed. Effective rule of law operations must be 

coordinated and synchronized with many others, including host nation agencies 

and courts, coalition partners, IOs, and NGOs. Sharing classified information is 

limited even among our coalition military partners and is prohibited with most 

host national, international, and non-governmental agencies. Rule of law 

operations that include classified information or plans reduce the possibility of 

necessary coordination with non-US partners. Consequently, the prudent rule of 

law practitioner will ensure that information concerning rule of law operations is 

classified only after thoughtful consideration. 

C. Interagency Friction and Coordination 

As noted in Chapter III, an alphabet soup of interagency, IOs, and NGOs will be present 

and will have different mandates, authorities, and capabilities. While these actors will bring a 

vast array of technical assistance and expertise, a judge advocate must remember that these 

agencies and organization will undoubtedly have competing visions and priorities, and that the 

influx is likely to lead to a lack of organization and coordination. 

From this muddle of uncoordinated activity within the US interagency relationship alone, 

what follows is commonly an overlapping of effort, wasted resources, gaps in programmatic 

decisions, diverse and inconsistent messages, and lost time. Unchecked, this disorganization and 

political turf-fighting will confound rule of law efforts. 

Ultimately, this challenge can only be overcome by close collaboration with various US 

and other players in rule of law operations. A participatory strategic planning process can help 

provide some order and direction and avoid harmful effects. When initiating a rule of law 

project, one of the first things a Judge Advocate should do is learn his place within the larger US, 

coalition, or multinational rule of law effort and find the other international, national, and local 

partners who can maximize its effectiveness and increase its likelihood for success. The key, 

though, is to remain open and to act in a spirit of good faith with good will toward agencies 

involved in the rule of law process. Although they may have slightly different vision and 

methods of operation, other actors working toward the rule of law have more in common than 

they do disagreement, and they can bring critical assets to bear on a problem. 

Beyond these US institutional obstacles, there are a large number of other interested 

parties in rule of law operations. Obviously, the host nation will have its own priorities and, 

often, some bureaucratic inertia, to pursue those interests. Coalition partners and NGOs will 

often have their goals that could be different from the military’s goals. 

D. Forces that Oppose Rule of Law 

Countries emerging from war or internal strife often suffer years or decades under the 

hands of brutal leaders and corrupt officials. Constraining or altering the power of officials who 

were once part of an absolute regime will be a highly political process. Many will stand to lose 

217 Chapter VIII - Challenges 
 

Rule of Law Handbook 

long-standing authority, social status, and financial interests. These actors, accustomed to 

unrestrained power, will seek to prevent the implementation of sustained rule of law initiatives. 

Rule of law practitioners will have to expect real and substantial resistance to legal and judicial 

reforms meant to alter the center of power in a post-conflict society.8 

The forces opposed to the rule of law can be wide ranging based on the specific situation, 

and countries confronting violent political instability or emerging from post-conflict situations 

are often unable to maintain full governance within their boundaries. In addition to the security 

challenges that these countries face, the ungoverned space is ripe for exploitation by forces, 

formal and informal, that oppose the legitimate authority of central government and the rule of 

law efforts being pursued. 

Rule of law efforts from the outset must include plans for dealing not only with physical 

security threats posed by opposing forces, but also for establishing dialogue and accountability 

over the different factions and forces that oppose sustained legitimate judicial reform. A 

“spoiler” force may directly sabotage rule of law efforts through violence, manipulation, or 

simply stalling rule of law implementation. 

While formal opposition forces such as national opposition political parties and vocal 

religious institutions may pose the most visible challenge to rule of law efforts, it is the informal 

and illicit opposition forces that can be the real threat. The objectives, goals, and leadership 

hierarchy of informal forces are more difficult to assess and accordingly are more difficult to 

combat. Informal forces that oppose rule of law efforts may include tribes or familial groups, 

non-national insurgents or third party forces, local indigenous militias, para-military or former 

legitimate military units, warlords, private “for hire” armed forces, organized crime cartels, 

extremist ideology organizations and economic organizations.9

 While these forces may use 

violence as a means to oppose legitimate rule of law, they may also use economic and social 

pressures to subvert rule of law reform efforts. 

Keys to dealing with the challenge of opposing forces include early identification of 

potential opposing forces and a timely assessment of their objectives and goals. Potential hidden 

objectives must also be considered and weighed even in the face of declared support for reform 

objectives. Active dialogue with the population and broadening the focus of issues can improve 

rule of law success. The benefit of this wider public discussion is increased legitimacy for the 

new regime and consequently the erosion of opposing force’s influence. Additionally, it may 

improve the public perception of the supporting security forces, increasing credibility. 

E. A Legacy of Suffering and Destruction 

In the aftermath of war, a society may exist in a state of physical and psychological 

trauma that has dramatic implications for rule of law initiatives. Years of armed conflict may 

have undermined governmental institutions, destroyed vital infrastructure, and driven out skilled 

professionals (such as lawyers and judges). Moreover, after years of despotic rule and political 

repression, ordinary citizens will feel resentment of rule of law institutions, most notably the 

police. 

8 See STROMSETH, WIPPMAN & BROOKS, supra note 2, at 37. 

9 Id. at 13-15. 

Chapter VIII – Challenges 218 
 

Rule of Law Handbook 

Some of the biggest challenges in post-conflict countries will be the lack of judicial 

institutions, such as courts and prisons. Lack of resources may cause dysfunctional and 

inefficient justice systems manifested by outdated legal texts, inadequate caseload management, 

evidence tampering, and ill-trained court personnel. 

For the deployed Judge Advocate, this will mean that a broader array of programs and 

initiatives will be required to cultivate a legitimate and functional legal system. Efforts will be 

required not only to build the physical aspects of rule of law, but also the psychological aspects 

as well. After years of civil strife, local citizens may have suspicions that the legal apparatus is a 

vehicle of governmental control and repression. Initiatives must be geared towards building 

confidence in the population that the legal system can fairly resolve disputes. Thus, the rule of 

law practitioner must understand what ordinary citizens, especially marginalized segments of the 

population, view as urgent priorities in reforming legal apparatus of a country. 

F. Corruption 

All public and private sectors of rule of law are vulnerable to corruption, particularly in 

post-conflict countries where public institutions are developing and often weak. Corruption 

erodes public confidence and undermines institution integrity. Social scientists have defined 

corruption in many ways, but a useful yet simple definition for addressing public sector rule of 

law reform is “the abuse of public power for private gain.”10 Regardless of the form – bribery, 

kickbacks, protection, unlawful authorizations and approvals, awarding fraudulent procurement 

contracts, hiring nepotism, predetermined verdicts, or vote rigging – corruption subverts the rule 

of law and is an ever present challenge to rule of law reforms. 

While corruption can broadly be viewed as prejudicial to rule of law efforts, it must also 

be viewed in the specific context of the societal, cultural, and customary norms of the population 

where rule of law reforms are being instituted.11 What may be characterized as bribery in one 

culture may be considered respectful, gracious, and proper in another culture. This does not 

obviate the need to combat corruption, but rather highlights the need to understand how the 

transplantation of definitions and rules from one culture to another may affect rule of law efforts. 

At the national level and below, keys to combating corruption begin with an assessment 

and understanding of the unique historical cultural, social, legal, and administrative situation in 

the supported country. Corruption does not occur in a vacuum. Underlying causes of corruption 

may include low wages of public officials, security concerns, scarcity of food, fuel, or consumer 

goods, lack of accountability of officials, or no investigative or enforcement mechanism. By 

eliminating or reducing the incentives for corruption, the rule of law institutional reforms have a 

better chance of success. It is critical to assess the underlying cause of corruption in each specific 

10 Elia Armstrong, Combatting Corruption for Development: the Rule of Law, Transparency & 

Accountability, Combating Corruption for Development: The Rule of Law, Transparency and 

Accountability, Fourth Global Forum on Reinventing Government - Citizens, Businesses, and 

Governments: Partnerships for Development and Democracy, 11-13 December 2002, at 3, available at
 

http://unpan1.un.org/intradoc/groups/public/documents/un/unpan005786.pdf (quoting WORLD BANK, 

WORLD DEVELOPMENT REPORT 1997 102 (1997)). 

11 Rory O’Hare, ASCOPE, Planning Acronym for the New Generation of Warfare, MARINE CORPS 

GAZETTE 46 (Jan. 2007). 

219 Chapter VIII - Challenges 
 

 

Rule of Law Handbook 

case during the rule of law planning process. To assist nations in developing a strategy to combat 

corruption, several IOs have offered varied conceptual frameworks.12 Some of the key 

components to reducing corruption typically include informing the public about governance, 

opening up government processes, and establishing public official accountability. 

“Corruption, like terrorism, thrives on a lack of reliable information.”13 Experience has 

shown that corruption has been reduced in countries where the population is more informed on 

political issues and more active in governance. Populations that are educated about the 

governmental functions, processes, responsibilities, and rights can serve as a countervailing force 

to corruption. An assessment of how each population is informed is critical in rule of law 

planning. Considerations of literacy and access to information are similarly crucial. Using a 

method of disseminating information that the population does not either use or trust is 

ineffective. 

Secret or closed governmental processes and procedures present opportunities for 

corruption. Excessive secrecy by governmental organizations and a lack of information leads to 

mistrust and misunderstanding by the public. Courts, police, and other governmental institutions 

acting in secret may undermine the acceptance of the rule of law reforms. While secrecy may be 

important in the short term for certain security issues, efforts should be taken to keep the public 

informed to the greatest extent possible about governmental functions. Robust procedures that 

disclose and inform the public about governmental actions improve the transparency and fairness 

of governmental processes. Clearly established procedures and laws regarding due process and 

disclosure of information about governmental functions will enhance the chances of rule of law. 

Public official accountability is another cornerstone of an anti-corruption strategy. The 

approach to public accountability needs to be comprehensive in application and phased in 

implementation. The components of accountability include: developing standards or codes of 

conduct, training those standards, establishing safe forums to raise grievances, establishing 

investigative and enforcement mechanisms, and providing adequate resources to undertake 

enforcement. When one of the components of accountability is not functioning, then the whole 

process is compromised. If an aggrieved party suffers retaliation for raising a corruption 

complaint, if there is no way to investigate or sanction a corrupt judge, or if there is no funding 

or personnel to implement enforcement, then the system will be ineffective and potentially 

counter-productive to the anti-corruption effort. 

While all of the components of an anti-corruption program need to be in place for it to be 

effective, the implementation of the program may need to be approached in phases. Changing a 

culture of corruption will not occur immediately. Incremental steps may be needed to ensure 

acceptance and ultimate success. Interim measures like amnesty programs, limited temporary 

immunity agreements, or integrity pacts14 may be required as the government transitions to a 

12 STROMSETH, WIPPMAN & BROOKS, supra note 2, at 11. 

13ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE, OFFICE OF THE CO-ORDINATOR FOR 

ECONOMIC AND ENVIRONMENTAL ACTIVITIES, BEST PRACTICES IN FIGHTING CORRUPTION (2004), 

available at http://unpan1.un.org/intradoc/groups/public/documents/untc/unpan019187.pdf. 

14 ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, A HANDBOOK ON SSR,
 

SUPPORTING SECURITY AND JUSTICE, CONFLICT, PEACE AND DEVELOPMENT CO-OPERATION 118 (2007), 

available at www.oecd.org/dac/conflict/if-ssr. (discussing the use of “defense integrity pacts” (DPIs) to 

Chapter VIII – Challenges 220 
 

 

Rule of Law Handbook 

culture of integrity. Similarly, it is important that the enforcement mechanism include positive 

inducement and not just sanctions. Long-term culture change will likely occur only when the 

incentives to avoid corruption outweigh those to be corrupt. Effective incentives for a specific 

anti-corruption program are typically related to the underlying causes of the corruption. 

The legal advisors to rule of law programs must be involved in recommending laws, 

regulations and policy changes that can reduce corruption. Additionally, lawyers should be 

assisting in drafting accountability agreements and developing investigative and enforcement 

mechanism for anti-corruption programs. Reducing corruption is a crucial consideration in rule 

of law reform planning. 

G. Language and Notional Barriers 

Language and cultural challenges can be an overwhelming obstacle to success in rule of 

law operations. An example of such difficulties can be found in a rule of law practitioners’ 

observations and experiences in Afghanistan. 

Afghanistan’s eclectic legal system is an inevitable byproduct of the country’s 

tumultuous political history. We found that many fundamental and widelyaccepted legal precepts were either not familiar to Afghan legal personnel or 

entirely absent from the Afghan system. After encountering difficulty relating 

seemingly basic criminal law concepts (at least from a Western understanding), 

we quickly realized that much of the failing was our own. To effectively develop 

a new military legal regime requires an understanding of existing systems and the 

history of the indigenous military justice system.15 

In the future, the US will more than likely participate in rule of law efforts in countries 

and regions that do not necessarily share our language, traditions, and legal concepts. In order to 

be effective and proceed with a sense of credibility, our personnel must be knowledgeable and 

cognizant of the cultures, languages, and traditions of the people that we are assisting.16 

The challenge in overcoming such barriers will be significant, requiring a cadre of 

personnel that thoroughly understand the history, traditional cultures, and languages of the 

indigenous population for each potential scenario. It would be unrealistic to expect that every 

rule of law practitioner to be fluent in the local language and deeply familiar with the local legal 

system. However, in order to overcome this challenge planning considerations must be made 

well in advance in order to mitigate any gaps or seams, such as hiring contractors who are fluent 

in the native language or competent in the local legal system. The thoughtful rule of law 

practitioner should require pre-deployment training for their personnel that emphasizes the 

language, traditions, and legal systems of the subject country. 

combat corruption in the procurement process by attempting to bind all bidders to agreed standards of 

ethical conduct). 

15 MAJ Sean M. Watts & CPT Christopher E. Martin, Nation Building in Afghanistan – Lessons Identified 

in Military Justice Reform, ARMY LAW. 1 (May 2006). 

16 See generally COMBATING SERIOUS CRIMES IN POST-CONFLICT SOCIETIES, A HANDBOOK FOR 

POLICYMAKERS AND PRACTITIONERS (Colette Rausch, ed. 2006). 

221 Chapter VIII - Challenges 
 

 

Rule of Law Handbook 

An example of this is seen in the rule of law traditions of many Islamic nations. Often 

times, legal disputes are settled by a local religious leader acting as a sort of a magistrate. This 

practice has developed over time, is accepted by the population as legitimate, and is largely 

viewed as effective. It is also part of the religion, which is itself frequently an important 

component of host-nation law. Efforts to replace this practice with a national government-centric 

judicial system are likely to be resisted, undermining not only the rule of law effort but also the 

institutions trying to implement the change.17 It is important that rule of law planners understand 

not only what works in the country they seek to support, but also be ready to accept those notions 

that are foreign to the West but work. 

Computers as Status Symbols 

In OIF-1, when many Iraqi judges in provincial capitals were surveyed as to what 

tools they needed to restart their court operations, many of them declared that 

computers were an essential item. Some brief inquiries by Judge Advocates 

revealed that no computers had been used in provincial courts prior to the war, 

and that all official records were maintained in hand-written ledgers. Further, 

none of the judges or staff were skilled in the use or maintenance of computer 

equipment, and there were no IT personnel available to set up or maintain a 

computer system. The computers were requested purely as status items and had 

they been provided without a comprehensive plan to automate the provincial 

courthouses, they would have quickly become expensive paper weights, as well as 

an ongoing distraction from more immediate needs. 

H. Cultural Blindness or a “West is Best” Mentality 

Even if a rule of law practitioner is able to understand local culture and language, there is 

still a risk of imposing Western legal values on the host nation. The foundation of rule of law 

reform is the understanding that law and its application are immensely contextual and deeply 

intertwined with the social, religious, and political aspects of a country. Crucial to establishing 

rule of law is understanding what is culturally acceptable for the developing nation. Legal 

reforms will only take hold if they are sensitive to the culture and legal tradition of the host 

country.18 A nation will have its own distinct culture and tradition that has developed over time. 

Even when that tradition is dominated by authoritarian actors and corrupt governance, the society 

will have developed processes and expectations about how to do everyday activities. 

Although it is critical to respect local institutions and norms, in order to obtain the 

stability and security sought by the rule of law mission, it will often be necessary to encourage or 

require the rejection of certain foreign nation laws that promote violence, discrimination, or other 

social divisiveness in the concerned country. The inability of host nation legal institutions to 

operate in a post-conflict environment will present the temptation for those with the physical 

capabilities – frequently coalition forces – to simply take over legal functions, imposing a US17 Dr. Frank Vogel, presentation to USACAPOC(A)/PKSOI 3d Rule of Law Workshop (October 2006). 

18 UNITED NATIONS DEPARTMENT OF PEACEKEEPING OPERATIONS, PRIMER FOR JUSTICE COMPONENTS 

IN MULTIDIMENSIONAL PEACE OPERATIONS: STRENGTHENING THE RULE OF LAW 6 (2006), available at 

http://pbpu.unlb.org/pbpu/view/viewdocument.aspx?id=2&docid=851. 

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oriented system in the process. Rule of law planners should not view their mission as writing 

upon a blank slate, seeking to transplant a US style, common law system in the place of the host 

nation’s preexisting system. Additionally, the low capabilities of host nation institutions a the 

beginning of a rule of law project should not lead US rule of law practitioners to ignore the 

importance of maximizing participation by host nation officials in rule of law efforts.19 After all, 

it is the host nation, not coalition forces, that both defines and lives under the rule of law. 

The rule of law is not Western, European, or American. It is available to all societies. 

States differ in terms of laws, and in terms of the treaties they have signed with respect to human 

rights. Legal cultures differ depending upon history, with the majority basing their laws on the 

civil law tradition, while others (including the US) build on the common law tradition. In many 

countries, religious law provides the foundation for family and other laws. Societies differ in 

terms of the values they ascribe to law versus other means of social organization, such as 

personal or family loyalty. Respect for specific laws and other norms varies depending upon 

cultures and circumstances. The general rule of law principle, however, transcends all these 

differences.20 

Westernization of the Iraqi Legal System 

An example of overreaching in reforming the legal system of an occupied nation 

occurred in Najaf during Operation Iraqi Freedom during 2003. Having made 

significant progress in restoring the provincial courts and in vetting judges to 

remove those who would be resistant to reform, the Marine military governor on 

the scene proposed to place an Iraqi female on the bench. The well-intentioned 

idea was to signal that there was a new day in Iraq under which women would 

have a greater rights and a say in their governance. The reaction from the 

population, however, was a turbulent protest, supported by many local women, 

who felt that the Americans were imposing their social values upon the Iraqis. 

Due to the passionate local reaction the plan was scrapped at the last minute and 

calm returned to the judicial reform process.21 

Some changes may be necessary, and for those that are, attempting to implement new 

(but foreign) tenets and processes for organizing society requires patience, as the audience will 

likely not understand, or even worse, appreciate it. Developing law is not solely a legal function, 

but a political function that includes the cooperation of local actors. The law is not an output, but 

rather a process that balances international expertise, local legal traditions, societal values, and 

cultural norms.22 

19 See section IV.B.2 on the legal obligations of occupiers. 

20 US AGENCY FOR INTERNATIONAL DEVELOPMENT, GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE 

STRATEGIC RULE OF LAW FRAMEWORK 5 (2008). 

21 CENTER FOR LAW AND MILITARY OPERATIONS, FORGED IN THE FIRE, LEGAL LESSONS LEARNED 

DURING MILITARY OPERATIONS 1994-2006 22 (2006). 

22 Id. at 29 

223 Chapter VIII - Challenges 
 

Rule of Law Handbook 

I. Sustainability and Resources 

A common issue within the rule of law community is that the time and money afforded to 

the process of reform is insufficient. For Judge Advocates conducting rule of law missions, this 

issue is compounded. Most military units are understaffed and underfunded for stability 

operations, including rule of law. 

Capitalizing on Paralegals23 

There is a need for Paralegals in rule of law, as they bring their expertise in legal 

office management and administrative procedures to the rule of law mission. At 

the corps and division level, a Paralegal could take the lead in legal office 

administration and automation, including but not limited to, database 

management, maintaining a rule of law electronic (unclassified) library and 

database, monitoring legislative actions as well as decisional law at the provincial 

and local levels. At the brigade and battalion level, Paralegals could take a more 

active role in rule of law missions by assisting in conducting rule of law 

assessments, helping to train local Iraqis in organizing and maintaining legal 

records, databases and files, and in providing insight and training into the needs 

and capabilities of a functioning legal aid center. In brigades and battalions that 

are short Judge Advocates, the Paralegal could be the primary person performing 

courthouse assessments by working in conjunction with the respective CA team 

or Provincial Reconstruction Team, or offering guidance to CA teams on rule of 

law projects and initiatives. 

A Paralegal can sift through the Significant Actions and numerous intelligence 

and situation reports in order to determine items of significance to rule of law and 

highlight them for the rule of law Judge Advocate. As no one person can possibly 

keep up with all the reporting available, the Paralegal could also accompany the 

rule of law Judge Advocate on inspection trips and offer a second set of eyes to 

those individuals involved in the inspection and assessment. 

Rule of law practitioners must be wise to invest scarce resources to targeted projects 

where they can a significant impact on the community. It is important to recognize that financial 

resources are finite. Rule of law practitioners should be selective in directing scarce funds based 

on strategic planning, urgent need, and buy-in by host-nation leaders. 

In addition to the obvious problem of finite resources, time is a major concern in 

conducting rule of law operations. Most legitimate legal reform programs run from 5 to 10 years. 

However, the military tends to focus its operational tasks in six months to one year objectives. 

To offset this issue, rule of law programmers should design programs to ensure that their impact 

endures beyond the project itself. While it may not always be possible, rule of law initiatives 

should be tailored to have a lasting and sustainable effect. Put simply, even the most capable 

judges or best-trained police force will languish and deteriorate without ongoing support. This 

will mean finding local tax-revenue schemes and commitment of local leaders. Thus, rule of law 

23 From Rule of Law Lessons Learned MNC-I Rule Of Law Section Operation Iraqi Freedom 05-07 (Dec. 

10 2006). 

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planners must balance the need for a one-year quick fix with the necessity to develop sustainable 

and enduring legal programs and review such short-term operations for compatibility with longterm objectives. 

J. Tyranny of Distance 

Logistics, in terms of moving personnel and resources will likely present major 

challenges to any rule of law initiative. For instance, the “tyranny of distance” in places like 

Afghanistan and Iraq speaks for itself. The amount of money and equipment required to sustain 

any operation located on the other side of the world will likely require heavy planning and 

assessment of the resources required to start a deployment and sustain it through completion. 

In addition, cognizance of the Commander’s Decision Cycle as it relates to higher 

headquarters and the civilian leadership should be a consideration in your planning cycle. For 

example, the normal working hours in the subject theater of operations may be the end of the 

workday or in the middle of the night at your higher headquarters. 

K. Legal Obligations 

The legal obligations and policy decisions of both the supported nation and the 

supporting nations can challenge rule of law reform efforts. The supported nation may be limited 

in its initial rule of law reforms by obligations that it incurred during agreements to end political 

or armed conflict. As an example, the Bonn Agreement24 that served as the interim framework 

for the reestablishment of Afghanistan contained provisions that mandated the reconstructed 

judicial system to be based on existing laws and also based on Islamic principles. 

These national obligations of Afghanistan potentially complicate rule of law reform 

efforts.25 Similarly, each nation supporting rule of law may have national caveats based on their 

laws or national policies that limit certain aspects of its rule of law support. The US, for example, 

may be more constrained than another nation in its ability to quickly contract for necessary 

services in support of a rule of law program because of its national contracting laws and 

regulations. When a coalition of nations is providing the rule of law support, each nation brings 

its own constraints or national caveats to the rule of law program. Deconflicting these many 

national caveats can be challenging. However, a rule of law program planner and legal advisor 

must coordinate and plan for these caveats to ensure effective rule of law support. 

Identification of participating nations and their national caveats to rule of law support 

should be accomplished early in the rule of law planning process. A matrix that lists the rule of 

law support objectives and the nations that have caveats that prevent or limit their participation 

24 The Bonn Agreement, officially the Agreement on Provisional Arrangements in Afghanistan Pending
 

the Re-Establishment of Permanent Government Institutions, U.N. Doc. S/2001/1154 (Dec. 5, 2001), 

called for the interim rebuilding of the justice system on existing laws in accordance with Islamic 

principles, international standards, the rule of law, and Afghan legal traditions. The agreement can be 

found at http://www.afghangovernment.com/AfghanAgreementBonn.htm.

25 LAUREL MILLER & ROBERT PERITO, UNITED STATES INSTITUTE OF PEACE SPECIAL REPORT NO. 117 –
 

ESTABLISHING THE RULE OF LAW IN AFGHANISTAN 9 (2004), available at
 

http://www.usip.org/pubs/specialreports/sr117.html. 

225 Chapter VIII - Challenges 
 

 

Rule of Law Handbook 

in specific objectives is helpful for commanders supporting rule of law reform. Once identified, 

the challenge for the planners is to leverage each nation’s strengths while avoiding conduct that 

would violate a national caveat. It is important to realize that some nations providing rule of law 

support may have their own rule of law values, and will be less than willing to modify their 

activities to work in concert with other participants. But finding a way to work with coalition 

partners in a way consistent with their national caveats is still superior to a stove-piped rule of 

law effort by a single nation.26 

L. Unrealistic Expectations 

The military cannot complete stability missions alone. The workload of conducting 

stability operations, including rule of law endeavors, must be shared and borne by other agencies 

of the USG. Essentially, all aspects of national power must be leveraged and applied to these 

types of operations. A military solution alone will not suffice. However, it is apparent that other 

agencies are not adequately resourced to deploy the appropriate skill sets of personnel and in the 

number of personnel needed.27 

Perhaps even more important, though, is the realization that the no amount of military 

power can force the local population to embrace the rule of law. It may very well be that social, 

cultural, and historical factors will foil even the most perfectly designed and executed rule of law 

project. Success in stability operations to include rule of law will not come quickly or easily and 

will likely not be susceptible to readily identifiable pillars of victory. In the end, it is the local 

population that adopts the rule of law, not the institutions of international development. 

26 Id. at 5 (discussing how the “lead” nation for justice sector reform (Italy) has “focused mainly on 

implementation of its own projects, rather than coordination of broader [rule of law] efforts. As a 

consequence and despite the presence of some Afghan officials who are committed to reform, since the 

fall of the Taliban little progress has been made toward building a functioning justice system.”). 

27 Secretary of Defense Gates emphasized this point in a recent Senate hearing by stating “...that Ms. 

Rice had told him that her department needed six months to locate and prepare civil servants and 

contractors to send abroad. It is illustrative of the difficulty of getting other agencies to provide people on 

a timely basis....” Thom Shanker and David S. Cloud, Military Wants More Civilians to help in Iraq, 

N.Y. TIMES (Feb. 6, 2007). This gap in identifiable and ready resources has been recognized and one 

possible solution is the recommendation offered by the United States Institute for Peace in creating a 

ready pool of personnel with the requisite skill sets to perform rule of law missions. “One reason for this 

gap is the total absence of any U.S. civilian capacity to deploy organized units of police with specialized 

equipment necessary to perform crucial public order function such as crowd control of law and the 

curbing of rampant lawlessness. ROBERT PERITO, MICHAEL DZIEDZIC AND BETH DEGRASSE, UNITED 

STATES INSTITUTE OF PEACE SPECIAL REPORT NO. 118 – BUILDING CIVILIAN CAPACITY FOR U.S. 

STABILITY OPERATIONS: THE RULE OF LAW COMPONENT 2 (2004), available at 

http://www.usip.org/pubs/specialreports/sr118.pdf. 

Chapter VIII – Challenges 226 
 

IX. Theater-Specific Information on Rule of Law – 

Afghanistan and Iraq 

Most of the content of this Handbook is intended to give Judge Advocates an overview of 

the context and framework for rule of law operations, wherever they may take place. This 

chapter, however, focuses on today’s reality: most Judge Advocates have deployed or are 

deploying to Afghanistan or Iraq and can use more detailed information on both theatres of 

operation. The chapter is divided into sections on Afghanistan and Iraq. The Afghanistan and 

Iraq sections are further divided between discussion of the framework for rule of law operations 

in each theater (including a description of the Provincial Reconstruction Team (PRT) and 

embedded-PRT (e-PRT) operations in each theater) and discussion of the legal system in each 

country. 

A. Afghanistan 

1. Overview 

It is difficult to exaggerate the difficulties that confront the development of the rule of 

law in Afghanistan. Afghanistan is a poor, mountainous country with bad communications. Its 

people are from a patchwork of ethnic groups with a preference for identifying themselves by 

their racial and tribal backgrounds rather than by their nationality. Local warlords are able to 

assert their independence from the central government and corruption is widespread. War and 

political upheaval has bedeviled Afghanistan for decades. Rory Stewart reminds us that “every 

Afghan ruler in the 20th century was assassinated, lynched or deposed.”1

 This is unpromising 

soil in which to grow the rule of law. And yet, for all these challenges, the Afghan people have a 

hunger for the rule of law, a concept that is deeply engrained in their profound attachment to 

Islam and the tenets of Sharia law. 

2. The Plan for Rule of Law 

The strategic plan for rule of law development in Afghanistan is the Afghan National 

Development Strategy (ANDS).2 The ANDS consists of a variety of plans for different “sectors” 

(such as agriculture, education, health, water, etc.); the plan for rule of law is one of the sectors 

nested within the ANDS. The specific document outlining the rule of law sector is the National 

Justice Sector Strategy (NJSS),3

 which, in turn, contains the National Justice Program (NJP). The 

NJP is the fundamental document explaining the development of the rule of law in Afghanistan, 

1

 Rory Stewart, Afghanistan: A War We Cannot Win, available at http://www.hks.harvard.edu/newsevents/news/commentary/stewart-oped-jul09 (last visited July 27, 2009). 

2

 http://www.ands.gov.af/ (last visited July 27, 2009). 

3

 Confusingly the document is also entitled the “Justice and Rule of Law Sector Strategy”, the title that 

appears on the cover of its English translation. NJSS is the more commonly used title that was agreed at 

the Rome Conference of July 2007. NJSS is the title that will be used here. Variations in language 

between documents that are translated into English from their native Dari or Pashtu are common. 

227 
 

 

 

Rule of Law Handbook 

and it describes the effects that must be achieved in order to establish rule of law in Afghanistan. 

The ANDS was approved by President Karzai on 21 April 2008.4 

The NJP has six justice components:5 

1.	 Effectively organized and professionally staffed, transparent and accountable justice 

institutions. 

2.	 Sufficient infrastructure, transportation, equipment and supplies adequate to support 

the effective delivery of justice services. 

3.	 Justice professionals adequately educated and trained with sufficient know-how to 

perform their tasks. 

4.	 Clearly drafted constitutional statutes produced by a consultative drafting process. 

5.	 Coordinated and cooperative justice institutions able to perform their functions in a 

harmonized and interlinked manner. 

6.	 Awareness amongst citizens of their legal rights and how to enforce them. 

In total, if these six components are all in place, the rule of law should exist in 

Afghanistan. Listing the components in this way is a useful guide, but it is necessarily 

oversimplistic. For instance, the list does not provide any guidance as to relative importance to 

be attached to each component. Infrastructure, for example, is not necessarily a very important 

component. Far more important is the quality of the people serving the system: justice systems 

have operated effectively with good people working in bad facilities. But the quality of people is 

hard to measure, and people take time to develop. In comparison, the construction and counting 

of buildings is easy. There is consequently a temptation to focus on infrastructure, a relatively 

easy and straightforward “metric,” as opposed to people, who are messy and hard to quantify in 

any meaningful way. 

The NJP aims to be a comprehensive statement of the requirements for the rule of law in 

Afghanistan. It establishes an endstate, defines performance indicators, and outlines methods for 

monitoring and evaluation.6

 But it describes itself as a “process” rather than an “implementation” 

4

 The critical observer might be forgiven for asking why it took almost seven years from the date of the 

establishment of an Interim Afghan government by the Bonn Agreement, to establish a strategy for 

developing Afghanistan. The answer to that question is beyond the scope of this section; suffice it to say 

that there is wisdom in the frequently repeated truism that the development of rule of law in Afghanistan 

is a “work of decades, not years.” 

5

 Note that the NJP places policing in a security- rather than a justice-line of operation. This has the 

unfortunate effect of dividing the efforts of rule of law practitioners since organic rule of law practitioners 

only focus on the Ministry of Justice, the Attorney General’s Office, and the Supreme Court. The police 

are the responsibility of CSTC-A. The US Embassy is aware of the potential for incoherence that this 

brings and is working to rectify it. 

6

 NJP Pt 1 C 1. The responsibility for oversight is shared between the Programme Oversight Committee 

(POC) and the Board of Donors (BoD). The first joint meeting between the POC and the BoD was held 

on 14 May 09. Coordinating work on the NJP is unusually complicated because it involves so many 

different groups. These include: USA; UK; Italy; Germany; Canada; NGOs; the World Bank (the 

Afghanistan Reconstruction Trust Fund); IDLO; ISISC; UNDP; UNODC; UNICEF; and UNIFEM. 

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Rule of Law Handbook 

methodology.7 In other words, it says what must be done without specifying who must do what 

work. At the time of this writing, July 2009, the US Embassy, under the direction of Ambassador 

Holbrooke,8

 has taken in hand the task of producing a US Rule of Law Strategy that will define 

in operational terms how the “process” of the NJP will be implemented in detail. The production 

of this new strategy will be a significant advance for the rule of law in Afghanistan. 

The US military has not been idle while waiting for an implementation plan or a formal 

rule of law strategy. Regional Command (East) (RC(E)9) placed a Rule of Law Annex in the 

RC(E)/CJTF-82 FRAGO. The rule of law FRAGO was written by selecting those NJP 

components the military could advance. An important underlying assumption was that the 

military cannot lead in rule of law development. For instance, the organization of – and 

coordination between – justice institutions, and the drafting of legislation are not issues that can 

be addressed from the tactical RC(E) level. These are strategic and operational challenges that 

are best overcome by the ministries in Kabul advised and mentored by civilian specialists. 

Accordingly RC(E) selected (1) infrastructure; (2) training (3) legal awareness and (4) 

accountable institutions as the four components of the NJP towards which they would direct their 

rule of law efforts. It is worth noting that these four components are geographically fixed to 

some extent (infrastructure and the people – along with their legal awareness – will not move, 

and it is time-consuming and expensive to send judicial officials to Kabul for training when that 

training can be done locally). This plays to one of the military’s key strengths: being present in 

areas which might be too dangerous for civilian rule of law advisors to work in. The US 

Department of State is becoming more aggressive in deploying its staff into new areas as part of 

the new “civilian surge” strategy, though. For instance the DOS has recently sent civilian rule of 

law advisors to three of the four task forces in RC(E) and one to Helmand Province. This is a 

very positive development for the rule of law in Afghanistan. 

3. The International Framework 

The RC(E) approach to rule of law may be realistic, but it raises the further problem of 

coordinating rule of law efforts. Since the military does not own the whole problem of rule of 

law it must cooperate with the other “stakeholders” involved in building rule of law. But who are 

these other stakeholders? The most important stakeholder is the Afghan government. The 

method by which a state will exercise its sovereignty, the essence of the rule of law, is a deeply 

political question specific to every host nation. We should not be surprised, as strangers in a 

foreign country, when the Afghan government approaches the rule of law with a perspective that 

is alien to us, frustrating though this might be on occasion. If rule of law does come to 

Afghanistan we must expect it to have an Afghan complexion: it would be naïve to expect 

otherwise. 

7

 NJP Pt 1 A. 

8

 Ambassador Richard C. Holbrooke was appointed Special Representative for Afghanistan and Pakistan 

in January 2009. See generally http://www.state.gov/secretary/rm/2009a/02/116314.htm
 9

 One of four “cardinal” ISAF regional HQs in Afghanistan and, before the US surge into RC(S) in the 

Spring of 2009, the main US AO. RC(E) surrounds Kabul and abuts against the lawless and Talibandominated North West Frontier Province and Federally Administered Tribal Area of Pakistan. RC(E) 

consists of the following provinces: Parwan, Panjshir, Kapisa, Nuristan, Laghman, Konar, Nangarhar, 

Logar, Paktya, Khowst, Paktika, Ghazni, Wardak and Bamyan. 

229 Chapter IX - Theater-Specific Information 
 

Rule of Law Handbook 

Working with the Afghan government on rule of law issues is complicated by the fact 

that there are four main ministries involved in providing rule of law: the Ministry of Justice, the 

Supreme Court, the Attorney General’s Office and the Ministry of the Interior. 

1.	 Ministry of Justice.

10 Responsible for prisons, the Huqooq,11 legislative review, and 

supervising the courts. 

2.	 Supreme Court.

12 Responsible for the judges.13 

3.	 Attorney General’s Office.

14 Responsible for prosecutors. 

4.	 Ministry of the Interior. Responsible for the police. 

The departments are independent of each other, while the Supreme Court, in particular, is 

constitutionally independent of the executive, similar to the American concept of judicial 

independence. This division of responsibility between independent departments introduces the 

potential for bureaucratic frictions and misunderstandings among potentially competing 

government bureaucracies – again similar to the American concept of bureaucratic infighting. 

Outside the Afghan government there are a large number of stakeholders with an interest 

in rule of law. These include IOs, various USG agencies, and NGOs. The military rule of law 

practitioner must have some understanding of who they are and how (and if) they fit together. 

The United Nations Assistance Mission in Afghanistan (UNAMA) is the most important 

IO operating to develop the rule of law in Afghanistan15 because it has a mandate from the UN 

Security Council (UNSCR 1868 of 29 Mar 09)16 that it “will continue to lead the international 

civilian efforts ... to support and strengthen efforts to improve governance and the rule of law.”17 

UNAMA works to support the Afghan government’s efforts in reaching its NJP objectives. 

UNAMA has regional offices at the provincial level, which has frequently assisted Judge 

Advocates in gaining situational awareness and in coordinating rule of law development efforts 

10 http://www.moj.gov.af/ 

11 The Huqooq is described as the “face of the Ministry of Justice.” There are Huqooq offices in every 

province. The Huqooq is the first place in the formal justice system where people take their disputes for 

resolution. These include mediation, family and commercial law, and land disputes. Anecdotally the 

Huqooq appears to have a positive relationship with the informal justice system. Cases are referred 

between the two systems. Individuals will reportedly take an informal justice decision to the Huqooq for 

validation: in effect a symbiotic relationship appears to exist between the informal system and the 

Huqooq. Rule of law SJAs in RC(E) have forged good relationships with their local Huqooq 

representatives. A typical rule of law project will involve providing legal training for Huqooq officials: an 

important “small step forward” in building up the rule of law. 

12 http://www.supremecourt.gov.af/ (last visited July 28, 2009)

13 The Afghan Constitution formally establishes separation of powers, and the Afghan Supreme Court is 

acutely conscious of its judicial independence from the executive ministries. 

14 http://www.ago.gov.af/ (last visited July 28, 2009) 

15 http://unama.unmissions.org/default.aspx?/ (last visited July 29, 2009). 

16 http://www.unhcr.org/refworld/country,,,RESOLUTION,AFG,4562d8cf2,49c9f9992,0.html (last 

visited July 29, 2009) 

17 Id. 

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Rule of Law Handbook 

with other actors.18 Furthermore UNAMA, in partnership with UN Development Programme 

(UNDP19), sponsors the Provincial Justice Coordination Mechanism (PJCM) which was 

launched on 1 Jul 08 and is responsible for coordinating rule of law efforts. A Judge Advocate, 

or a PRT commander, working on rule of law would be well advised to coordinate his efforts 

with UNAMA and the PJCM. 

4. US Government Efforts 

The US Government’s contribution to the rule of law in Afghanistan is significant in 

scale and range. Indeed the US contribution has been so large that coordinating the various 

efforts has been a challenge.20 A major step forward in coordinating the various efforts has been 

the creation of a Special Committee on the Rule of Law (SCROL). The SCROL is chaired by the 

Rule of Law Coordinator in the US Embassy and it meets weekly. It provides a valuable 

opportunity for the many arms and agencies of the USG to coordinate their work and to maintain 

shared situational awareness across the rule of law effort by means of operational updates. The 

US Embassy also has a senior Judge Advocate21 whose duties include coordinating US military 

rule of law efforts with that of other US agencies. Any new rule of law practitioner in 

Afghanistan should ensure that her rule of law efforts are coordinated through the SCROL and 

the Interagency-Civilian -Military Action Group (ICMAG – phonetically “Ick-Mag”) at the 

Embassy. In addition to other benefits of coordination, working closely with the Embassy can 

help ensure that no fiscal laws are broken, since rule of law programs undertaken by the military 

are subject to specific fiscal law limitations.22 

Among the prominent USG agency participants in Afghanistan: 

1.	 Department of State – Bureau of International Narcotics and Law Enforcement 

Affairs (DOS/ INL): INL works in Afghanistan through two separate programs: the 

Justice Sector Support Program (JSSP) and the Corrections Systems Support Program 

(CSSP). Their specific responsibilities: 

a.	 JSSP. Supports the Afghan Attorney General’s Office and the MOJ, provides 

regional training programs, and supports the International Legal Training 

Center (INLTC) in Kabul.23 

18 For instance: the UNAMA representative in Jalalabad, the provincial capital of Nangahar Province, 

attends regular meetings hosted by the US BCT Rule of Law Coordinator who is stationed at Jalalabad. 

This greatly assists the planning and coordination of rule of law efforts in Nanagahar Province. 

19 http://www.undp.org/

20Department of State and the Broadcasting Board of Governors, Office of Inspector General, Rep. No. 

ISP-I-08-09, Rule of Law Programs in Afghanistan 7 (2008), available at
 

http://oig.state.gov/documents/organization/106946.pdf (last visited Sept. 7, 2009) (“[T]he inspection 

team found that since 2002 the different civilian and military agencies engaged in aspects of ROL 

development have approached their tasks with different goals, methodologies, and timelines, and have 

often been unaware of each other’s efforts”; moreover, “[a]t the embassy in Kabul, . . . by late 2005, 

internal U.S. coordination meetings on ROL were best characterized as shouting matches between 

representatives of different agencies.”). Id. at 8. 

21 See section X.C, infra. 22 See Chapter VII for fiscal law considerations. 

23 http://www.inltclawlibrary.org/index-en.html (last visited July 30, 2009) 

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Rule of Law Handbook 

b. CSSP. Supports the prison system, develops corrections infrastructure, and 

provides training. 

2.	 USAID: USAID supports the Supreme Court, law reform and legislative drafting. It 

produces a range of useful legal reference materials. It also provides a link to the 

informal justice system and supports legal aid. 

3.	 Department of Justice: DOJ has the lead with the Criminal Justice Task Force (the 

specialist counternarcotics task force), the Anti-Corruption Unit in the Attorney 

General’s Office, and the US Marshals Service protection efforts. 

5. Provincial Reconstruction Teams 

PRTs in Afghanistan play an important role in reconstruction.24 In Afghanistan, PRTs 

have matured since November 2002 from a single US-led pilot project in Gardez to an 

international effort involving 25 teams in most of Afghanistan’s 34 provinces.25 Twelve of the 

Afghanistan PRTs are led by the United States, and 13 by coalition partners throughout the 

country.26 All fall under the broad authority of the NATO-led International Security Assistance 

Force. All PRTs receive general guidance through the ANDS process described above. “For the 

International Security and Assistance Force, the PRT is now the principal vehicle to leverage the 

international community and Afghan government reconstruction and development programs.”27 

PRTs operate under tactical control to their battlespace task force, which is usually a BCT. In 

24 As described in Chapter III, there are a number of other programs at the provincial level. For example, 

Regional Training Centers (RTC) are built and managed by INL to support the Afghanistan Police 

Program and other provincial activities. These seven RTCs, located in Herat, Balkh, Konduz, Nangarhar, 

Paktia, Kandahar, and a small RTC in Bamiyan serve as important regional centers for USG police, 

justice and corrections assistance. In particular, INL supports 24 US justice and corrections advisors 

deployed at Herat, Balkh, Konduz, Nangarhar and Paktia RTCs. Advisors at these RTCs are part of the 

INL Justice Sector Support Program (JSSP) or the INL Corrections System Support Program (CSSP) 

contracts. Each of these programs supports around 70 contracted US advisors, along with around 40 

Afghan Legal Consultants (ALCs). US advisors are selected and trained in Washington, and reflect a 

variety of identified skill sets and backgrounds, including line-prosecution work as state and local 

attorneys; criminal defense work, both private and public; civil law and sharia law expertise; legal 

training experience, and State corrections systems. JSSP and CSSP advisors based at RTCs report to their 

respective program directors in Kabul, who report to the INL Narcotics Affairs Section (NAS) Program 

Manager at the U.S. Embassy.

25 Donna Miles, PRTs Showing Progress in Afghanistan, Iraq: Civilian Reserve Needed, Oct. 5, 2007, 

Statement of Mitchell Shivers, deputy assistant secretary of defense for Central Asia Affairs, to 

House Armed Services Committee’s oversight and investigations subcommittee

26 Id., Statement of Air Force Maj. Gen. Bobby Wilkes, the Joint Staff’s Deputy Director of PoliticoMilitary Affairs for Asia to House Armed Services Committee’s Oversight and Investigations 

Subcommittee, available at http://www.defenselink.mil/news/newsarticle.aspx?id=47700 (last visited 

August 8, 2008). 

27 Id. General Wilkes also told the Subcommittee: “[t]he activities of the PRTs are setting the 

conditions that bring more local support to the central government, further separating the local 

population from the insurgency, and continuing to transform the lives of the Afghan people ... . 

The PRT is an entity to facilitate progress and ensure both the counterinsurgency and national 

development efforts are complementary and ultimately successful.” 

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practice this means that the PRTs rule of law efforts are often directed by the staff of the Brigade 

Legal Section. 

US PRTs in Afghanistan are commanded by an Army lieutenant colonel or Navy 

commander and composed almost entirely of military personnel. As described above, DOS is 

now starting to send civilian rule of law specialists to US PRTs as part of the “civilian surge,” 

which is a welcome development. The PRTs typically consist of 50-100 personnel, of which only 

3 or 4 members are USG civilians or contractors, but the civilian representation is now starting to 

increase. Civilian PRT staff may be from the State Department, USAID, or the Agriculture 

Department. The PRT’s military commander does not command the non-DOD civilians.28 In 

addition, PRTs have two Army Civil Affairs teams with four soldiers each. The US model also 

typically includes a military police unit, a psychological operations unit, an explosive 

ordnance/demining unit, an intelligence team, medics, a force protection unit, and administrative 

and support personnel.29 An Afghan representing the Ministry of Interior may also be part of the 

team. These PRTs should include a single representative each from DOS, USAID, and the US 

Department of Agriculture. PRTs are usually co-located on a military base with combat 

maneuver units operating in the same area or battlespace.30 

The PRTs are often divided into teams, with one team responsible for building small, 

quick-impact development projects using local contractors and the other for running the PRT 

civil military operations center (CMOC), which coordinates activities with the UN and NGOs. 

Even thought a PRT might not have a civilian Rule of Law Coordinator assigned to it 

(and this is starting to change), there are still ways in which PRTs can contribute to justice 

reform in Afghanistan: 

1.	 Building judicial infrastructure; 

2.	 Facilitating information-sharing (PRTs are popular with Afghan nationals, which 

gives them strong local connections and good situational awareness); 

3.	 Advising on best use of donor funds; 

4.	 Helping to coordinate reconstruction efforts with the UNAMA PJCM. 

28 STAFF OF HOUSE ARMED SERVICES SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS, 110TH CONG., 

AGENCY STOVEPIPES VERSUS STRATEGIC AGILITY: LESSONS WE NEED TO LEARN FROM PROVINCIAL 

RECONSTRUCTION TEAMS IN IRAQ AND AFGHANISTAN 13 (Comm. Print 2008)[hereinafter Subcommitee 

Report] , available at: http://armedservices.house.gov/pdfs/Reports/PRT_Report.pdf (last visited Aug. 18, 

2008).

29 Id. 

30 Id. 

233 Chapter IX - Theater-Specific Information 
Rule of Law Handbook 

Preparing for “Whole of Government” Counterinsurgency and Stability 

Operations: The Interagency Afghanistan Integrated Civilian-Military PreDeployment Training Course 

Recognizing the need to improve interagency training for personnel being 

deployed to Afghanistan, an Interagency Working Group made up of 

representatives from the Departments of Defense, State—including the U.S. 

Agency for International Development (USAID)—and Agriculture developed the 

Interagency Afghanistan Integrated Civilian-Military Pre-Deployment Training 

Course. This course supports the comprehensive new strategy designed by 

President Obama, the Special Representative for Afghanistan and Pakistan, 

Ambassador Richard Holbrooke, and the Commander of U.S. Central Command, 

General David Petraeus, that seeks to increase civilian capabilities—the “civilian 

uplift”—and improve coordination among U.S. government agencies in 

promoting a more capable, accountable, and effective government and economy 

in Afghanistan. The course also answers the call from Congress that civilian 

personnel assigned to serve in Afghanistan receive civilian-military coordination 

training that focuses on counterinsurgency and stability operations. 

Representatives of the Departments of Defense, State, Agriculture, and USAID 

implement the training in collaboration with the Indiana National Guard and its 

partners, including Indiana University and Purdue University. The course is 

conducted at the Muscatatuck Urban Training Center, the premier interagency 

training facility associated with the Camp Atterbury/Muscatatuck Center for 

Complex Operations in Indiana. This training course began in July 2009 and will 

run monthly for Afghanistan-bound USG civilians and military members. 

The one-week course provides U.S. civilian government personnel from DoD, 

DoS, USAID, and USDA with training on working within the civilian-military 

interagency contexts of Provincial Reconstructions Teams (PRTs) and District 

Support Teams (DSTs) deployed in Afghanistan. The training simulates 

interagency coordination tasks civilian and military personnel face in 

Afghanistan, including taking conveys to meetings with Afghan officials, 

responding to security threats against forward operating bases, and sharing 

information and ideas on how to make progress on the lines of operation and 

effort that guide counterinsurgency and stability operations. The course also 

provides trainees with numerous role-playing scenarios with Afghan role-players 

and interpreters that simulate the tasks the trainees will face once deployed in 

Afghanistan. These scenarios include missions related to improving the rule of 

law, such as visiting a district court and district prison to assess challenges facing 

central and provincial efforts to improve the rule of law. 

6. The Legal System of Afghanistan 

For centuries Afghan history has been dominated by internal political and religious 

conflict, foreign invasion, and civil war. These circumstances have contributed to an overall lack 

of a single coherent, functioning, and generally recognized legal system in Afghanistan. 

The 2004 Afghan Constitution formally created a modern Islamic state with a tripartite 

structure familiar to western lawyers: an executive central government with extensive regulatory 

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authority31, a bi-cameral legislature and an independent judiciary.32 Presidential as well as 

parliamentarian elections have been held in 2004 and 200533 respectively and presidential 

elections are due in August, 2009. A substantial number of new statutes have been passed.34 The 

rebuilding of the legal infrastructure (e.g. courthouses, prisons, and law schools) has begun. 

Significant funds have been spent on the buildup of the Afghan National Army and Afghan 

National Police.35 

In spite of the hard work exerted to bring the rule of law to Afghanistan,36 the results 

have generally been seen as falling far short of the initial hopes and expectations: A dramatic 

discrepancy persists between the formal legal provisions and the present de facto order. In spite 

of improvement in some areas, the security situation in large parts of the country is volatile, 

corruption is rampant, there is a continuing lack of professionally trained government personnel,

37 and the legal infrastructure is basic at best and non-existent in some parts of the country.38 

Furthermore, there is a widespread lack of respect for the rule of law as set by the central 

government and the legitimacy of Afghan national law continues to be challenged by alternate 

power structures, such as tribal and militia leaders. 

In practice, Afghanistan’s legal system is characterized by the co-existence of two 

separate judicial systems: 

a formal system of law practiced by state authorities39 relying on a mixture 

between the civil law system and elements of Islamic law; and 

31 See Organisation and Jurisdiction of the Newly Established Afghan Courts – the Compliance of the 

Formal System of Justice with the Bonn Agreement, Ramin Moschtaghi, Max Planck Yearbook of United 

Nations Law, Volume 10 (2006), p. 584, available at 

http://www.mpil.de/shared/data/pdf/moschtaghi_organisation_and_juristiction_of_newly_established_afg 

han_courts1.pdf (last visited July 15, 2008). 

32 Article 97 of the 1964 Constitution and the Bonn Agreement guarantee the independence of the 

judiciary.

33 Elections are scheduled again for 2009 and 2010 respectively. 

34 See the site of the Afghan Ministry of Justice for further information at http://www.moj.gov.af. 

35 See Report on Progress toward Security and Stability in Afghanistan, June 2008, p. 16-29, available at 

http://www.defenselink.mil/pubs/Report_on_Progress_toward_Security_and_Stability_in_Afghanistan_1 

230.pdf (last visited July 16, 2008). 

36 See Benchmark Status Report March 2007 – March 2008 – 2.7.1 to 2.7.4. 

37According to a recent Human Development Report little more than half of the judges have the relevant 

formal higher education and have completed the required one-year period of judicial training. The 

remaining judges have graduate from madrassas or have a non-legal academic education, with 20 percent 

having no university training at all. See CENTER FOR POLICY AND HUMAN DEVELOPMENT, AFGHANISTAN 

HUMAN DEVELOPMENT REPORT 2007: BRIDGING MODERNITY AND TRADITION AND RULE OF LAW AND 

THE SEARCH FOR JUSTICE 43, available at 

http://hdr.undp.org/en/reports/nationalreports/asiathepacific/afghanistan/name,3408,en.html. 

38 Some court facilities lack even the most basic physical requirements. In addition, according to the 

Human Development Report 2007, 36 percent of judges have no access to statutes, 54 percent have no 

access to legal textbooks, and 82 percent have no access to decisions of the Afghan Supreme Court. 

Prisons are often overcrowded and do not met international standards. See HUMAN DEVELOPMENT 

REPORT, supra. 39 It should be noted that official courts often apply positive law as well as customary and Islamic law. 

235 Chapter IX - Theater-Specific Information 
 

 

 

Rule of Law Handbook 

an informal customary legal system based on customary tribal law and local 

interpretations of Islamic law. 

The “dual nature” of the Afghan legal system stems to some degree from the limited 

reach of state authority in Afghanistan. But it is also emblematic of the historic and continuing 

tensions inherent to an ethnically diverse Afghan society.40 

The three sources of law formal and informal institutions rely on – positive secular law, 

Islamic law, and customary law – overlap in subject matter and can provide contradictory 

guidance. Tribal law and the Islamic Sharia often seem to contradict the provisions of the 2004 

constitution and Afghanistan’s international human rights obligations, particularly with regard to 

women’s rights and freedom of religion.41 

Because 99% of the country is Muslim, the Sharia plays a major role as the common 

denominator between the formal and the informal system,42 but its interpretation varies widely 

both by location and among different schools of Islamic jurisprudence. Islamic legal scholars 

play an important role as custodians of Islamic law, and their importance within the legal system 

should not be underestimated. Frequently, Afghans see little difference between a mullah and a 

judge; religious training is considered equivalent to studying law at a university.43 There exists 

neither a single, generally accepted supreme authority on the content of Islamic law in 

Afghanistan nor a coherent and complete system to resolve competing interpretations.44 

a) The Formal Legal System 

Until 1964 Afghanistan’s state-administered court system had essentially a dual structure, 

in which clergy-led religious courts applying Sharia co-existed with state courts handling secular 

law.45 Under the liberal 1964 constitution, and similarly under the 2004 constitution, the state 

court system is united under a hierarchical structure of secular courts. The formal relationship 

between state law and Sharia however is less clear: The 2004 constitution states that only 

40 According to Art. 4 of the 2004 Afghan constitution, the nation of Afghanistan is comprised of the 

following ethnic groups: Pashtun, Tajik, Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, 

Arab, Qirghiz, Qizilbash, Gujur, Brahwui and others, of which the Pashtun with approximately 42% and 

the Tajik with approximately 27% are the largest groups. 

41 Afghanistan is party to a number of human rights treaties, including the ICCPR, ICESCR, CAT, CRC, 

CEDAW, and the Rome Statute. Noticeably, under Islamic Law blasphemy and apostasy are punishable 

by death while Art. 18 of the ICCPR guarantees freedom of religion. 

42 See J Alexander Their, Restablishing the Judicial System in Afghanistan at 5 (Stanford Institute for 

International Studies Center on Democracy, Development and the Rule of Law Working Paper 2004), 

available at http://iis-db.stanford.edu/pubs/20714/Reestablishing_the_Judiciary_in_Afghanistan.pdf. 

43 See note 59 below. 

44 For a more complete account of Islam and Islamism in Afghanistan see Chapter V.C and Kristin 

Mendoza at http://www.law.harvard.edu/programs/ilsp/research/mendoza.pdf. 

45 Islamic Law was introduced in Afghanistan as a consequence of the Islamic conquest in the 9th century. 

With regard to the development of the Afghan State and its legal system from Kingdom to its presents 

status, see Moschtaghi, Organisation and Jurisdiction of the Newly Established Afghan Courts – The 

Compliance of the Formal System of Justice with the Bonn Agreement, p. 535f., available at 

http://www.mpil.de/shared/data/pdf/moschtaghi_organisation_and_juristiction_of_newly_established_afg
 

han_courts1.pdf (last visited Sept. 3, 2009). 

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measures that pass the legislative process can be considered law46 and that courts may only refer 

to the Hanafi jurisprudence of Islamic law47 when there is no provision of the Afghan 

Constitution or other laws applicable.48 But it also states that no law shall contravene Islam49 and 

prohibits amendment of this principle,50 leaving the relationship between positive state law, 

international obligations, and Islamic law uncertain. 

Court System51 

The Afghan court system is a three-tiered system consisting of a Supreme Court located 

in Kabul, Courts of Appeal in each of the thirty-four provinces, and Primary Courts in the 

districts. 

The Supreme Court is the formal head of the judiciary.52 Headed by the Chief Justice, it 

is constitutionally responsible for the organization and administration of the lower courts53 and 

has as many managerial functions as judicial responsibilities.54 Beside its appellate functions, the 

Supreme Court has the significant power of judicial review of the laws, legislative decrees, 

international treaties, and international covenants for their compliance with the Afghan 

Constitution,55 and has reserved itself the right to review their consistency with the Islamic 

Sharia.56 

At the second level of this hierarchy are the Courts of Appeal based in each of the thirtyfour provinces.57 Each of the Courts of Appeal is headed by a Chief Judge and divided into 

different divisions. The Courts of Appeal review the decisions of the Primary Courts. 

46 Art. 97 of the Afghan Constitution of 2004. 

47 The Hanafi school is the oldest of the four schools of thought (Madhhabs) or jurisprudence (Fiqh) 

within Sunni Islam.
 48 Art. 130 of the Afghan Constitution of 2004. 

49 Art. 3 of the Afghan Constitution of 2004. 

50 Art. 149 of the Afghan Constitution of 2004. 

51 The Court System is regulated by the Constitution and the 2005 Law on the Organization and Authority
 

of the Courts, last accessed on July 15, 2008 at 

http://supremecourt.gov.af/PDFiles/Law%20on%20Organization%20and%20Jurisdiction%20of%20Cour
 

ts%20of%20the%20Judiciary,%20English.pdf. Note that up to 2005 a four-tired system was prescribed 

by law even though not functioning in practice. 

52 Art. 116 of the Afghan Constitution of 2004. 

53 See Art. 29 of the Law of the Organization and Authority of the Courts of the Islamic Republic of 

Afghanistan. 

http://www.supremecourt.gov.af/PDFiles/Law%20on%20Organization%20and%20Jurisdiction%20of%2
 

0Courts%20of%20the%20Judiciary,%20English.pdf.

54 See Their, supra note 42, at 10. 

55 Art. 121 Afghan Constitution of 2004 and Art. 24 of the Law of the Organization and Authority of the 

Courts of the Islamic Republic of Afghanistan, available at 

http://www.supremecourt.gov.af/PDFiles/Law%20on%20Organization%20and%20Jurisdiction%20of%2
 

0Courts%20of%20the%20Judiciary,%20English.pdf.

56 Notably, the Supreme Court has created within its administrative structure a council composed of 

clerics that reviews questions of Islamic law, and has, on its own initiative, issued rulings even in matters 

not actually brought to the Supreme Court by any parties. 

57 The “Courts of Appeal” prior to 2005 were known as “Provincial Courts”. 

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Rule of Law Handbook 

The official courts of first instance are the Primary Courts, which consist of a central 

provincial primary court and various district primary courts as well as certain specialized courts, 

such as the Family Issues Primary Courts, Commercial Primary Court and the Juvenile Court.58 

A number of other national specialized courts also exist, among them the Courts for Offences 

against National Security, and the Central Narcotics Tribunal. 

Afghan judges are appointed by the President based upon the recommendation of the 

Chief Justice of the Supreme Court. According to the 2005 Law on the Organization and 

Authority of the Courts, an individual must hold a degree from either a Faculty of Law or a 

Faculty of Sharia, must have completed the practical stage of legal professional training and 

must be older than 25 years in order to be appointed as a judge.59 Only a minority of sitting 

judges presently satisfy these requirements. The 2005 law also allows holders of diplomas on 

religious studies from an officially recognized center to serve as judges on the Primary Courts.60 

Afghan court hearings usually consist of three-judge benches. Judges often convene trials 

in their offices due not only to limited infrastructure, but also custom – the notion of justice 

being done in open court is foreign to many Afghans. 

Sources of Law 

The Afghan legal system is a mixed one. Under the 2004 constitution, the official courts 

shall apply, in principle, only positive law – law that has passed the formal legislative process – 

however, they also may consider Sharia law. The Afghan Government is passing an increasing 

body of law.61 Under the Afghanistan Compact, the legal framework shall have met its 

benchmarks by the end of 2010.62 Constitutionally, only in situations where no formal law is 

applicable can decisions be based on the Hanafi interpretation of Islamic law,63 or, in case only 

Shiites are involved, the Shiite interpretation.64 If neither formal law nor Sharia law is applicable 

in a particular dispute then customary law may be consulted. 

There is currently a major Afghan-international effort underway to rewrite the Interim 

Criminal Procedure Code of Afghanistan. 

58 See Art. 40 of the Law of the Organization and Authority of the Courts of the Islamic Republic of 

Afghanistan (2005).

59 See Article 58 para 1 Law of the Organization and Authority of the Courts of the Islamic Republic of 

Afghanistan (2005).

60 See: Article 59, para 2, Law of the Organization and Authority of the Courts of the Islamic Republic of 

Afghanistan (2005).

61 According to the Afghan Ministry of Justice close to 200 legislative documents including laws, 

regulations and charters have been enacted in the past 5 years with a significant additional number 

currently being drafted. 

62 After the formal conclusion of the Bonn process that oversaw the reconstruction process from 2001 to 

2005, the Afghanistan Compact was concluded at the London Conference on Afghanistan in 2006. In this 

agreement the United Nations, the Afghan Government and the international community established an 

external framework for international cooperation with Afghanistan for the following five years, setting 

various benchmarks by which progress in the areas of security, Rule of Law and economic development 

is to be measured, available at http://www.nato.int/isaf/docu/epub/pdf/afghanistan_compact.pdf (last 

visited Sept. 3, 2009). 

63 Article 130, Ch. 7. Art. 15 of the Afghan Constitution of 2004. 

64 Article 131 Ch. 7. Art. 16 of the Afghan Constitution of 2004. 

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Rule of Law Handbook 

Problems in the Formal System 

In practice, court activity is largely limited to the urban centers. Courts of Appeal and 

Primary Courts have taken up work in some, but not yet all, provinces, partly due to the security 

situation but also because of a lack of resources. Respect for the government’s judicial 

institutions in rural areas remains very limited.65 In some provinces (Ghazni is one example) it is 

too dangerous for the District Courts to operate in their Districts and so they sit in the Provincial 

capital, with obvious repercussions for the ability of residents of those districts to access justice. 

The court system struggles against logistical constraints as well as a lack of qualified 

personnel, intimidation, corruption, and threats to the livelihood of judges.66 These deficiencies 

are linked to the security situation, the salary level of judges, and a lack of professionalism, 

integrity, and qualification in some of the judicial personnel. Similar problems exist with regard 

to other government actors involved in the administration of justice such as the police, 

prosecutors, and the correctional services. All of these factors impede the ability of the court 

system to work in a fair and effective manner. 

Many judges do not have access to legal texts or simply lack any appropriate legal 

training on constitutional or positive law. Instead they apply their own version of Sharia law or 

customary law to cases, even though the Afghan Constitution has effectively limited the 

application of Islamic law and does not recognize customary law as law at all.67 

Even where sufficiently trained judges have access to legal resources, problems persist 

due to the numerous regime changes occurring since 1964, making it difficult for courts to 

determine which positive law to apply. Courts do not have internet access, and mail service is 

non-existent in many areas, hindering both legal research and regular communication with the 

national legal infrastructure. Many local courts must rely on often incomplete or out of date 

printed legal texts. The Bonn Agreement establishing the Afghan government recognized all 

existing law and regulations, “to the extent that they are not inconsistent with this agreement or 

with international legal obligations” Some laws, especially from the Taliban era, are obviously 

inconsistent. However, many of the laws passed over the years may not be inconsistent with the 

Afghan Constitution, international law, or the Bonn Agreement, but nonetheless be inconsistent 

with each other. This situation is bound to cause confusion. It is often unclear to what extent old 

laws can still be relied upon or enforced. 

Moreover, the lack of trained prosecutors, defense attorneys, and justice administrators 

(such as those who run MOJ offices in the provinces) inhibits the work of the courts. Indeed, 

there are only between 600 and 1000 defense attorneys for the entire country. 

The Afghan government continues to implement the Afghanistan Compact’s Rule of 

Law-benchmarks and is committed by the end of 2010 to alleviating justice sector problems 

under the framework of the ANDS and the more specific National Justice Sector Strategy in line 

65 See The Asia Foundation: Afghanistan 2007: A Survey of the Afghan People, October 2007, last 

accessed June 17, 2008 at http://www.asiafoundation.org/resources/pdfs/AGsurvey07.pdf. 

66 A number of judges have been murdered, and many have received death threats. 

67 See Art. 97 of the Afghan Constitution of 2004. 

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Rule of Law Handbook 

with the Afghanistan Compact.68 The level of success of these efforts remains, however, 

uncertain. 

b) The Informal Legal System 

Due to the tribal structure of Afghan society, customary methods of conflict resolution 

continue to play a significant role, particularly in rural areas. It has been estimated that more than 

80 percent of social conflicts in Afghanistan are resolved through the non-governmental 

system.69 This reliance on the informal system is due to the loyalty of Afghans toward their 

family, village or ethnic group which traditionally far exceeds that to the distant central 

government in Kabul. There are also strong cultural incentives in keeping disputes within the 

informal system. But there are also practical reasons for Afghans to prefer the informal system: it 

is accessible, speedy and unburdened by legalistic process; and it resolves disputes while keeping 

the mutual honor of the litigants intact, finally it does not have the same reputation for corruption 

that mires the state system. 

The defining features of the informal system are its goals of restitution, collective 

reconciliation, and restoration of the victim’s honor and social harmony. This can be contrasted 

with the more retributive system common to western justice. The primary means of conflict 

resolution are forgiveness and compensation (“Poar” or blood money) in order to forego blood 

feuds, even though other forms of punishment do exist. The best known of these customary rules 

is pashtunwali, the traditional honor code of the Pashtun people. In pashtunwali compensation 

can include cash, services, animals, or even the transfer of women.70 

The informal system generally depends on a consensus of the parties involved and the 

decisions are self-enforcing. Social pressure or punishment on those failing to abide by decisions 

of the peer community ensures reasonably effective enforcement. 

The Councils: Shuras and Jirgas 

The customary legal system is exercised through jirgas (“circle” or “council” in Pashto) 

and shuras (“consultation” in Arabic). These institutions are local mediation or arbitration panels 

68See Afghanistan Compact at http://www.nato.int/isaf/docu/epub/pdf/afghanistan_compact.pdf. See also 

be helpful http://www.rolafghanistan.esteri.it/ConferenceRol and 

http://www.state.gov/p/inl/rls/rm/106015.htm

69 UNDP, “Afghanistan Human Development Report 2007” p. 9, available at 

http://www.undp.fi/julkaisut/afghanHDR_complete.pdf. However, a poll conducted by the Asia 

Foundations suggests a shift in attitudes more favorable to the formal courts in the past three years, with 

large regional differences, see The Asia Foundation> Afghanistan 2007: A Survey of the Afghan People, 

October 2007, p. 71, available at http://www.asiafoundation.org/resources/pdfs/AGsurvey07.pdf (last 

visited Sept. 3, 2009). It should be noted that these statistics are contradictory. Apart from the difficulty of 

collecting accurate statistics in Afghanistan it may be that litigants are pursuing cases through both the 

formal and informal systems concurrently, a type of forum shopping. 

70 For additional information on Pashtunwali, see generally Thomas H. Johnson & Chris M. Mason, No 

Sign until the Burst of Fire: Understanding the Pakistan-Afghanistan Frontier, INT’L SEC’Y, v. 32, no. 4, 

pp. 41–77 (Spring 2008). See id. at 62. (“The very concept of justice is wrapped up in a Pashtun’s 

maintenance of his honor and his independence from external authority. Action that must be taken to 

preserve honor but that breaks the laws of a state would seem perfectly acceptable to a Pashtun. In fact, 

his honor would demand it.”). 

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that resolve day-to-day disputes in their communities. Their members are recruited from 

community members or respected outsiders and most commonly consist of, but not exclusively, 

older, respected men. Cases are discussed and decided orally. Council gatherings may occur in 

private chambers, common gathering places, or a local mosque. While the public is often free to 

attend, women and children are commonly excluded. There is also an appellate structure. A 

plaintiff dissatisfied with the decision of a jirga may request a review of the case by a new jirga. 

Sources of Law 

Each local council will apply its own historically evolved, non-codified canons of tribal 

law, often combining arguments from local customary law (urf) with aspects of Sharia. As 

Afghanistan is home to about 55 distinct ethnic groups, customary legal rules as well as the 

interpretation of the Sharia vary by tribe and location. 

Problems, Strengths & Opportunities in the Informal System 

The decisions of the informal justice system cannot be accepted uncritically. There are 

significant problems with it: women and children are often barred from attending jirgas, 

effectively cutting them off from access to justice. Jirga settlements might include marrying a 

female from an offender’s family to a close relative of the victim, with anecdotal evidence 

suggesting that this can sometimes include the forcible transfer of girls as young as six years old. 

Similarly there has been a habitual denial of women’s property rights, including rights to 

inheritance. Decisions inconsistent with the guarantees given under the Afghan Constitution, 

state laws, or Afghanistan’s human rights obligations, undermine state authority and contradict 

the goal of elevating human rights to the international standard. Further, non-governmental law 

enforcement challenges the state’s monopoly on the use of force. 

Despite these very significant problems, the informal system enjoys certain key strengths, 

and it is widely accepted, respected and used by the Afghan people. It has legitimacy in the eyes 

of the majority of Afghans. Most commentators on the rule of law in Afghanistan (a wide and 

disparate community) accept that the informal system will continue to play some part in the 

future Afghan justice system.71 But there is less agreement as to how this will work in practice. 

The US government has not yet reached a conclusive policy position regarding the informal 

justice system. Meanwhile, rule of law practitioners recognize the existence of this dual system 

and are trying to mitigate its problems. The most troubling problems result when informal justice 

actors attempt to resolve serious crimes. But land disputes are also a major issue as they are the 

cause of a significant amount of violence; even if they are amicably resolved, the informal 

decision may not be recorded within the formal system. This can result in future disputes, 

especially among non-resident family members who may be refugees in Pakistan or Iran. 

Education and awareness training will broadcast the message that crimes against the person must 

be dealt with by the state acting through the formal justice system and not through informal 

tribunals. At the other end of the spectrum most people accept that the informal system will 

continue to play a role in resolving minor legal disputes, such as access to grazing and water 

rights. In those cases the quality of the decision-making by informal tribunals can be improved if 

the informal decision-makers have received some legal training. 

71 Indeed the Huqooq officials of the MOJ have encouraged parties to take their disputes to the informal 

system before resorting to formal litigation. 

241 Chapter IX - Theater-Specific Information 
Rule of Law Handbook 

In short, the current approach is to educate people as to which cases are not suitable for 

informal dealing and to improve the standard of decision-making in those cases that can remain 

in the informal system. The place of the informal justice system is an interesting and far from 

straightforward issue. The practitioner is advised to keep an eye on the developing policy debate. 

7. Successful Rule of Law Practices in Afghanistan 

Successful Practices: 

- Strive to understand the culture and the law, both in theory and in practice. 

- Establish and maintain strong, open, and trusting relationships with all actors (Afghan, 

US and International). 

- Employ Afghan attorneys to gain information, coordinate, train and put an Afghan face 

on your efforts. Many Afghan attorneys are very brave and highly dedicated. They can 

frequently go places where foreigners cannot and they will find out things that foreigners 

(especially members of a foreign military) would not. They understandably see 

themselves as working for the good of Afghanistan, not the US government. 

- Keep it simple. Pursue simple and practical schemes for building infrastructure, training, 

and raising legal awareness in accordance with the NJP and more detailed direction from 

higher headquarters. 

- Focus on people. Infrastructure and process are important, but educating, developing, 

mentoring and empowering Afghans is better. 

- Understand how to leverage your rule of law efforts with the resources of other US and 

international agencies. 

- Understand CERP and how it may be used in supporting rule of law projects. 

- Ensure coordination of rule of law operations with other actors, such as civil affairs and 

civilian agencies as part of the larger governance strategy. 

Unsuccessful practices include a “go it alone” mentality that disregards the expertise and 

experience of others. Remember that many have come before you and are working alongside you 

albeit outside of your immediate view, including civilian agencies and, most importantly, the 

Afghans themselves. It is their country, administered by their government and ministries. There 

simply is no purely local rule of law problem in a country with a national government developing 

as quickly as Afghanistan’s. Any project that ignores the necessary relationships among foreign 

and host nation stakeholders is bound to fail in the long run, if for no other reason that there will 

be no national support to sustain it. 

8. References and Further Reading 

a) Afghanistan Development Efforts 

Afghanistan National Development Strategy, including JCMB reports: http://www.ands.gov.af/ 

ACBAR Guide to ANDS: http://www.acbar.org/display.php?page_id=74 

Benchmark Status Report: http://www.ands.gov.af/ands/jcmb/site/index.asp?page=j8 

International Crisis Group, Afghanistan’s Endangered Compact: 

http://www.crisisgroup.org/home/index.cfm?l=1&id=4631 

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Rule of Law Handbook 

Paper on Provincial Justice Coordination Mechanism: 

http://www.rolafghanistan.esteri.it/NR/rdonlyres/93D822B1-3443-40A1-BB9DE23FC879CEE7/0/PaperonProvincialJusticeCoordinationMechanism.pdf 

National Justice Program Rome Conference Follow-Up: 

http://www.ands.gov.af/ands/jcmb/site/src/Meeting%20and%20Documents/seventh%20JCMB/files/I 

II.%20Reports%20and%20Supporting%20Documents/National%20Justice%20Program%20­

%20Rome%20Conference%20Follow%20up%20-%20English.pdf 

Ashraf Haidari, Paris Conference: http://www.iaforum.org/Content/ViewInternalDocument.cfm?ContentID=6295 

Report on Progress toward Security and Stability in Afghanistan: 

http://www.defenselink.mil/pubs/Report_on_Progress_toward_Security_and_Stability_in_Afghanista 

n_1230.pdf 

DOS Inspector General’s Report on Rule of Law Programs in Afghanistan (Jan 08): 

http://oig.state.gov/documents/organization/106946.pdf 

House Committee Hearings: http://nationalsecurity.oversight.house.gov/story.asp?ID=2006 (including 

detailed description by each of the agencies of their programs) 

Secretary General’s Report: 

http://daccessdds.un.org/doc/UNDOC/GEN/N08/407/86/PDF/N0840786.pdf?OpenElement 

For a number of reports on Afghanistan: http://milnewstbay.pbwiki.com/CANinKandahar-Bkgnd 

b) The Afghan Legal System 

A Guide to Researching the Law of Afghanistan at the University of Michigan Law Library 

(2003) http://www.law.umich.edu/library/students/research/Documents/afghanistan.pdf 

Omar Sial, Islamic Republic of Afghanistan Legal System and Research (2006), available at 

http://www.nyulawglobal.org/globalex/afghanistan.htm 

Afghanistan Legal Documents Exchange Center, Translations of Afghan Laws, available at 

http://www.afghanistantranslation.com/ 

Hossein Gholami, Basics of Afghan Law and Criminal Justice, available at 

http://www.law.yale.edu/library/WebFiles/PDFs/Basics_of_Afghan_Law_and_Criminal_Just 

ice-English.pdf 

The Clash of Two Goods – State and Non-State Dispute Resolution in Afghanistan (2006) 

http://www.usip.org/ruleoflaw/projects/clash_two_goods.pdf 

The Customary Laws of Afghanistan – A Report by the International Legal Foundation (2004) 

http://www.theilf.org/ILF_cust_law_afgh_10-15.doc 

Justice in Afghanistan, Rebuilding Judicial Competence After the Generation of War (2007) 

http://www.mpil.de/shared/data/pdf/armytage-justice_in_afghanistan.pdf 

Afghan Legal History Project of Harvard Law School’s Islamic Legal Studies Program 

http://www.law.harvard.edu/programs/ilsp/research/alhp.php 

Afghanistan’s Legal System and its Compatibility with International Human Rights Standards 

http://www.icj.org/IMG/pdf/doc-51.pdf 

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Rule of Law Handbook 

Rebuilding the Judicial Sector in Afghanistan: the role of customary law (2006) 

http://fletcher.tufts.edu/al_nakhlah/archives/spring2006/senier.pdf 

Official Site of the Afghan Ministry of Justice http://www.moj.gov.af/ 

Official Site of the Afghan Supreme Court http://www.supremecourt.gov.af/ 

Organisation and Jurisdiction of the Newly Established Afghan Courts – The Compliance of the 

Formal System of Justice with the Bonn Agreement 

http://www.mpil.de/shared/data/pdf/moschtaghi_organisation_and_juristiction_of_newly_est 

ablished_afghan_courts1.pdf 

Informal Dispute Resolution and the Formal Legal System in Contemporary Northern 

Afghanistan (2006) http://www.usip.org/ruleoflaw/projects/barfield_report.pdf 

Development Report, Bridging Modernity and Tradition: Rule of Law and the Search for Justice 

(2007) http://www.reliefweb.int/rw/RWFiles2007.nsf/FilesByRWDocUnidFilename/RMOI793N8P-full_report.pdf/$File/full_report.pdf 

The customary law of Afghanistan – A Report by the International Legal Foundation 

http://theilf.org/Customary%20Laws.pdf 

Afghan Customary Law and its relationship to Formal Judicial Institutions. 

http://www.usip.org/files/file/barfield2.pdf 

B.	 Iraq 

1.	 International Framework 

Unlike Afghanistan, there is no larger UN-organized division of rule of law tasks among 

lead nations in Iraq. Given the absence of UN assistance and other substantial international 

presence, the task of post-conflict operations, including rule of law, fell almost exclusively to the 

United States. According to a 2005 assessment by the State Department Inspector General, “A 

fully integrated approach to rule of law programs in Iraq is essential and does not exist at 

present.”72 US government rule of law efforts are now guided by an Embassy and military Joint 

Campaign Plan, which includes a rule of law annex. The UN also maintains a specific operation 

for Iraq (the United Nations Assistance Mission for Iraq), as do the European Union and several 

NGOs.73 

a)	 The Coalition Provisional Authority and US Military Participation in Rule of 

Law Efforts 

Because the coalition forces served as occupiers of Iraq, US Judge Advocates have at 

times been required to not only help plan for rule of law reforms, but also to oversee the Iraqi 

72 OFFICE OF THE INSPECTOR GENERAL, INSPECTION OF RULE-OF-LAW PROGRAMS, EMBASSY BAGHDAD
 

1 (2005), http://oig.state.gov/documents/organization/55815.pdf. 

73 MNF-I (OSJA) Rule-of-Law Programs in Iraq: March 2006 Inventory 5-7 (2006) [hereinafter MNF-I 

Rule-of-Law Inventory]. 

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justice system.74 In the early days of the war, that effort was undertaken by division SJA offices 

as well as Judge Advocates serving in Civil Affairs brigades and battalions.75 The US military 

was authorized to create a governing body, the Coalition Provisional Authority (CPA), for Iraq 

until a formal indigenous government could be stood up. The CPA maintained authority over all 

legal, political practical, economic, and security activities in Iraq. 

DOD rule of law efforts continue to be operated through JAs at various levels. In 

addition, rule of law efforts are conducted through PRTs, even more so than in Afghanistan. As a 

result, the efforts vary widely based on the needs of individual locations, from judicial education 

programs to improving the security infrastructure of local courts and police 

b) US Embassy Baghdad and Interagency Coordination 

As described in section III.D, the US Embassy Country team is where the detailed and 

continuous coordination occurs. The coordination structure for Iraq has varied during the course 

of operations.76 The US Embassy in Baghdad is currently the largest in the world, having more 

personnel and more agencies represented than any other US Embassy. 

74 CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ, VOLUME II, 253 (2005). 

75 Id. at 254-55. 

76Several NSPDs have been adopted pertaining to Iraq, which set policy and allocated responsibilities 

among the various USG agencies. NSPD-24, adopted in 2003, which is no longer in effect, set forth the 

framework for post-war Iraq reconstruction. It remains classified. In May 2004, NSPD-36 set forth interagency responsibilities that would control subsequent to the Coalition Provisional Authority (which 

ceased operations on June 28, 2004). National Security Presidential Directive/NSPD-36, United States 

Government Operations in Iraq, May 11, 2004, available at 

http://www.fas.org/irp/offdocs/nspd/nspd051104.pdf (last visited Sept. 1, 2008). It provides that the Chief 

of Mission in Iraq is “responsible for direction, coordination and supervision of all United State 

Government employees, policies, and activities in country, except those under the command of an area 

military commander, and employees seconded to an International Organization.” It states that the 

Secretary of State “shall be responsible for the continuous supervision and general direction of all 

assistance for Iraq,” but, it reserves the authority for the Commander, USCENTCOM, coupled with the 

policy guidance from the Chief of Mission, to direct all USG efforts and coordinate international efforts 

in support of organizing, equipping, and training all Iraqi security forces. It notes that “[a]t the appropriate 

time, the Secretary of State and the Secretary of Defense shall jointly decide when these functions shall 

transfer to a security assistance organization and other appropriate organizations under the authority of the 

Secretary of State and the Chief of Mission....” NSPD-37, also adopted in 2004, directed the Attorney 

General to establish an office to provide support to the GOI efforts to investigate and try former regime 

officials. Its charge was limited to assisting the Iraqi Higher Tribunal. See NSPD-37, Relating to Support 

of Iraqi Government, May 13, 2004. It is not publically available. See index of NSPDs at 

http://www.fas.org/irp/offdocs/nspd/index.html (last visited Sept. 1, 2008). 

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Rule of Law Handbook 

US Embassy Iraq – Rule of Law Organization 

As can be seen from the organizational chart above, within the Embassy is a Rule of Law 

Coordinator (RoLC). The RoLC provides direction, oversight and support to the approximately 

200 Embassy personnel engaged in promoting justice in Iraq, ensuring that they design and 

implement their rule of law programs consistent with the Embassy’s overall plan.77 

77 US Embassy Baghdad, http://iraq.usembassy.gov/offices_rol.html (last visited Sept. 8, 2009). 

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Rule of Law Reporting in MNF-I 

Every two weeks, every subordinate sector in MNC-I provides a Bi-weekly Rule 

of Law Report. This is a narrative composed of rule of law events over the past 

two weeks, rule of law events planned for the next two weeks, Ongoing Projects 

and Issues. It is generally a 25-page report that is then sent to all the key US rule 

of law players in Iraq, including the US Embassy, MNF-I, subordinate units, and 

separate commands. This document compliments the less-specific assessments 

provided for MNC-I commander and provides a host of important information on 

ongoing rule of law projects. 

2. Provincial Reconstruction Teams 

The first PRT in Iraq began operations in November 2005. In inaugurating that first PRT, 

Secretary of State Condoleezza Rice said these new entities would “marry our economic, 

military, and political people in teams to help local and provincial governments get the job 

done.”78 According to their official mission statement in the PRT handbook (November 2006), 

the original teams were to “assist Iraq’s provincial governments with developing a transparent 

and sustained capacity to govern, promoting increased security and rule of law, promoting 

political and economic development, and providing provincial administration necessary to meet 

the basic needs of the population.”79 

PRTs in Iraq were modeled on similar groups operating in Afghanistan. The former US 

Ambassador to Iraq, Zalmay Khalilzad, was credited with bringing the idea for PRTs from his 

previous assignment in Kabul.80 In fact, PRTs in Afghanistan bore little resemblance to those in 

Iraq. US PRTs established during 2006 in Iraq were led by a senior State Department official and 

composed primarily of civilian personnel, unlike those previously described for Afghanistan 

which are led by the US military. Moreover, the emphasis of PRTs in Iraq is on shaping the 

political environment rather than building infrastructure as in Afghanistan.81 

The initial PRTs included representatives from the State, Justice, and Agriculture 

Departments and USAID, a USAID commercial-contract firm, plus Army Civil Affairs teams 

and other military personnel. US military forces or commercial contractors provided security. 

PRTs resided at either a Regional Embassy Office (REO) or a military FOB, where the host 

installation provided force protection. During the first year of PRT operations, many obstacles 

hindered PRT operations, from the provision of security, to the lack of basic logistic support.82 

78 Robert Perito, Provincial Reconstruction Teams in Iraq, USIP Special Report 185, March 2007, at 

http://www.usip.org/pubs/specialreports/sr185.pdf (last visited August 10, 2008). 

79 Id.
 80 Id. 

81 See Miles, supra note 25, Statement of Mark Kimmitt, Deputy Assistant Secretary of Defense, Near 

Eastern and South Asian Affairs, pointing out that PRTs in Iraq have a different function and role than 

those in Afghanistan “and are achieving different effects.” Their mission is to help Iraq’s provincial and 

local governments by promoting security, rule of law and political and economic development. 

Meanwhile, they also help the government provide provincial administration necessary to meet the 

people’s basic needs. Id.
 82 Id.
 

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PRTs were expected to bolster moderates, promote reconciliation, support 

counterinsurgency operations, foster development, and build the capacity of Iraqi government 

officials to perform their duties. New PRTs work at the city, district, and neighborhood level. 

The goal is to create areas where moderates will have political space to operate and violent 

extremists can be brought under control. 

In 2007, the PRT program in Iraq was expanded and revised somewhat, with the standing 

up of embedded PRTs – PRTs embedded with the BCTs. The idea behind the new PRTs was to 

allow for more unity of effort between the goals of the BCT and the activities of the PRT. The 

critical distinction between newer ePRTs and original PRTs is that ePRTs focus on Iraq’s district 

level governments, while the original PRTs work predominately with provincial governments. 

In theory, the BCT and PRT are one team, which receives guidance from both the US 

ambassador in Baghdad and the commander of MNF-I. The BCT commander takes the lead on 

issues related to security and movement. The PRT leader from the State Department has 

responsibility for political and economic issues. Where a PRT is either embedded in or colocated with a BCT, the BCT provides security, life support, and operational support for the 

PRT. PRTs are composed of State Department and USAID Foreign Service officers and Stateprovided experts in subject matters, such as agriculture, business development, city management, 

and governance. Other agencies, including the Department of Justice and Agriculture, provide 

subject matter experts to serve on the teams. Additionally, the Department of Defense provides 

service members to fill select PRT billets (Deputy Team leaders for example), as well as 

contracted bilingual, bicultural advisors. Military Civil Affairs units also work closely with PRTs 

throughout Iraq. The composition of each individual team varies according to the needs in the 

particular area of operations and the requests of the PRT team leader. According to a 

Memorandum of Agreement between DOS and DOD, PRT members in embedded and colocated teams (the vast majority) travel with military movement teams under DOD security 

regulations. This arrangement makes it easier for civilian PRT members to work “outside the 

wire” and has increased PRT contact with Iraqi counterparts. Beyond “building sustainable 

capacity,” a term that refers to the “transfer of skills and knowledge from Coalition Forces to the 

Iraqi people,” there is no formal agreement among government agencies in Washington about 

what the PRTs are to accomplish. Ambassador Khalilzad and Multinational Force Commander 

General George Casey issued an “initial instructions” telegram establishing the PRTs, but no 

Washington interagency-approved doctrine or concept of operations governed the first PRTs in 

Iraq. 83 “Nor are there agreed objectives, delineation of authority and responsibility between the 

civilian and military personnel plans, or job descriptions.”84 

Progress has been made since those early days, though. On August 19, 2008, DOS and 

MNF-I issued a joint strategy titled Strategic Framework to Build Capacity and Sustainability in 

Iraq’s Provincial Governments, which replaced the original cable establishing the PRT program: 

83 See Perito, supra note 78.
 84 Id. See also House Armed Services Committee, Sub-Committee on Oversight and Investigations, 

Agency Stovepipes vs Strategic Agility: Lessons We Need to Learn from Provincial Reconstruction 

Teams in Iraq and Afghanistan (April 2008) 18, 

http://armedservices.house.gov/pdfs/Reports/PRT_Report.pdf. 

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The framework identifies, at the PRT level, three separate elements that are linked 

in the coordinated assessment and planning process: the quarterly maturity 

modeling assessments, the Unified Common Plans which are developed in 

partnership by PRTs and their partnered military units, and actionable PRT work 

plans linked to the Unified Common Plans and assessments. These three 

documents are critical to achieving the events that will trigger the drawdown and 

close out of PRTs.85 

The US Embassy Office of Provincial Affairs (OPA) is responsible for PRTs in Iraq. 

OPA coordinates PRT activities and provides administrative support, including all functions 

relating to civilian personnel. MNF-I provides military personnel and supports PRTs operating 

from US military bases – the vast majority of teams. In practice, the first ten PRTs had 

considerable latitude in determining their own priorities and method of operation, based on local 

conditions, available resources, logistic support, and personalities. This allowed for flexibility, 

but also required PRT leaders to improvise.86 

A model PRT would have the following complement of personnel: State Department, six; 

senior US military officers and staff, three; US Army Civil Affairs soldiers, twenty; Agriculture 

Department, one; Justice Department, one; USAID Contractor for governance issues - RTI 

International, three; USAID, two; and a military or contract security force of indeterminate size, 

depending on local conditions.87 Although the PRTs work closely with the Military Movement 

Teams and CA teams, neither are be considered as part of the PRT. Most PRTs lack their full 

complement of personnel, however, and there are time gaps between assignments. Nonetheless, 

the program is operating at nearly 95 percent personnel.88 

PRT operations differ depending upon location, personnel, environment, and 

circumstances. In general, however, staff members assigned to Iraq PRTs serve the following 

functions89: 

•	 Team Leader (TL): Usually, a senior US Foreign Service Officer, the team leader represents 

the State Department, provides leadership, and chairs the executive steering committee, 

which sets priorities and coordinates activities. The TL meets with the provincial governor, 

the provincial council, mayors, tribal elders, and religious figures and is the primary contact 

with OPA and other officials in the US Embassy in Baghdad. The TL is responsible for 

relations with the host institution and for ensuring that logistic and administrative 

arrangements are working properly. The TL’s personality and experience strongly influence 

the PRT’s objectives, activities, and success. As a civilian the TL does not command the 

PRT’s military personnel, who remain subordinate to the MNF-I commander. 

85 Special Inspector General for Iraq Reconstruction, SIGIR-09-013, Provincial Reconstruction Teams’ 

Performance Measures Process Has Improved 10 (29 January 2009), 

http://www.sigir.mil/reports/pdf/audits/09-013.pdf 

86 Id. 

87 Id. 

88 Id. 

89 Id. 

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•	 Deputy Team Leader (DTL): Normally an Army lieutenant colonel, the DTL serves as the 

PRT chief of staff and executive officer, managing daily operations, coordinating schedules, 

and liaising with the FOB commander on logistics, transportation, and security. 

•	 MNF-I Liaison Officer (LNO): A senior military officer, the LNO coordinates PRT 

activities with the division and FOB commander. These include activities related to 

intelligence, route security, communication, and emergency response in case of attacks on 

convoys. The LNO tracks PRT movements and coordinates with other US military units in 

the area of operations. 

•	 Rule of Law Advisor or Resident Legal Advisor: One or more attorneys from DOJ, DOS, 

or DOD monitor and report on the Iraqi judicial system and promote access to justice for 

Iraqi citizens. They visit judicial, police, and corrections officials and provide reports on rule 

of law activities in the provinces to the US Embassy. The program emphasizes improvement 

of the judiciary at the provincial level. 

•	 Iraq Provincial Action Officer (PAO): Usually a State Department foreign service officer, 

the PAO is the primary reporting officer. He meets frequently with local authorities and 

provides the embassy with daily reports on PRT activities, weekly summaries, analysis of 

local political and economic developments, and reports on meetings with local officials and 

private citizens. Political and economic reporting by State Department officers in PRTs is 

valued because it provides firsthand information on conditions outside the Green Zone. The 

PAO assists others in the PRT with promoting local governance. 

•	 Public Diplomacy Officer (PDO): A State Department foreign service officer, the PDO is 

responsible for press relations, public affairs programming, and public outreach through 

meetings at the PRT with local officials and escorting visitors to the PRT and its area of 

operations. 

•	 Agricultural Adviser (AGA): A representative of the US Agriculture Department, the AGA 

works with provincial authorities to develop agricultural assistance programs and promote 

agriculture-related industries. 

•	 Engineer (ENG): A representative of the US Army Corps of Engineers, the ENG trains and 

mentors Iraqi engineers working on provincial development projects. The ENG assists the 

PRT Provincial Reconstruction Development Committee in conducting project assessments, 

designing scope-of-work statements for contracts with local companies, site supervision, and 

project management. The ENG advises the TL on reconstruction projects and development 

activities in the province. 

•	 Development Officer (DO): The USAID representative coordinates USAID assistance and 

training programs and works with provincial authorities to promote economic and 

infrastructure development. The DO coordinates development-related activities within the 

PRT and supervises locally hired USAID staff. The DO is usually a development specialist 

working under a personal services contract with USAID. The agency is working internally to 

obtain authority for the representative to participate in approving all USAID projects and 

coordinating all USAID activities within the province. 

•	 Governance Team (RTI): Under a USAID contract, RTI International provides a threeperson team that offers training and technical advice to members of provincial councils and 

provincial administrators to improve the operation, efficiency, and effectiveness of provincial 

governments. The team gives hands-on training in providing public services, finance, 

accounting, and personnel management. RTI International personnel take guidance from the 

USAID representative but function under a national contract administered from the embassy 

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in Baghdad. RTI International maintains offices (nodes) in major cities that can provide 

additional specialists on request. 

•	 Bilingual Bicultural Adviser (BBA): Normally an Iraqi expatriate with US or coalition 

citizenship under contract to the DOD, the BBA serves as a primary contact with provincial 

government officials and local citizens. Advisers must have at least a BA degree and speak 

both English and Arabic. They also advise other PRT members on Iraqi culture, politics, and 

social issues. 

3. Iraqi Criminal Law and Criminal Procedure 

a) Legal History 

Iraq has a long and complex history as the center of Islamic jurisprudence. Practice 

developed initially from laws promulgated by city-states,90 and multiple conquerors brought their 

respective legal custom and tradition. 

Following the Mongol invasion in the thirteenth century, the Ottoman Empire controlled 

much of the region (including Basra, Baghdad, and Mosul) from the fourteenth to the twentieth 

century. The legal system included aspects of both Islamic law and an Ottoman Code. As the 

Ottoman influence over the region decreased in the nineteenth century, however, significant 

reforms based on the European civil law system took place. These reforms included the 

establishment of secular (non-religious) legal schools and led to the generation of legal codes91 

with heavy influence from the European civil law system. 

The creation of a British Mandate during the early twentieth century saw the 

establishment of a governing elite of state officials and officers who were almost exclusively 

Sunni in religion and Arab in ethnicity. The British formed a government to administer Iraq, 

adopting a constitutional monarchy with a parliament and a king.92 The British introduced with 

some success a Tribal Civil and Criminal Disputes Regulation modeled after a similar law in 

India. This gave certain selected sheiks the authority to settle all disputes within their tribes and 

to collect taxes for the government. In 1932, the British Government supported Iraq’s 

membership in the League of Nations, which led to Iraq becoming an independent state. 

Several attempts at legal reform followed. A quest for codification began in 1933 and, 

after several interruptions, reached completion in the early 1950s. Abdul al-Razzar Al-Sanhuri, a 

French-educated Egyptian legal scholar who had drafted the Egyptian legal code,93 oversaw the 

process. Although based on the European Civil law model, the Iraqi legal code still referenced 

Islamic law. For example, in cases not provided for by the code, the Iraqi Courts can turn to the 

Islamic Sharia to decide the merits of the dispute. 

90 By the 18th Century BC, rulers from the city of Babylon had created a detailed unifying code, covering 

all aspects of the law, in a language broadly understood by the people of the region. The carving of the 

laws into stone monuments ensured they were publically available and understood. 

91 A Penal Code introduced in 1858 used the French Penal Code of 1808 as a model, followed by a 

Commercial Procedures Law of 1861 and a Civil Code of 1876. 

92 The British appointed as the first monarch Prince Faisal Hussein, a member of an influential family in 

the Arab world, but not an Iraqi. 

93 The Egyptian code was the model for the legal systems of Libya, Qatar, Sudan , Somalia, Algeria, 

Jordan, and Kuwait. 

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Rule of Law Handbook 

Following a series of coups d’etat, the Ba’ath party led by Hassan al-Bakr94 came to 

power in 1968. The Ba’athists introduced a new constitution in 1970. Subordinate to it were five 

major codes legal codes forming the main legal pillars. These governed civil law, civil 

procedure, commercial law, criminal law, and criminal procedure.95 

b) Judicial Structure and Division of Powers - Penal System:96 

The Iraqi Criminal Courts operate on a hierarchical system from a supreme court (the 

Court of Cassation) to appellate courts and the courts of first instance. All are nationally 

controlled and the former has jurisdiction over all Iraqi territory. The appellate and courts of first 

instance are organized provincially and have jurisdiction over offenses committed within their 

own province. 

The Criminal trial courts are subdivided into Felony Courts, which deal with cases where 

the maximum penalty is more than 5 years imprisonment, and Misdemeanor Courts, which have 

jurisdiction over offenses where maximum penalty is 5 years or less. 

There are 14 appellate regions nationwide, largely based on the geographic provincial 

boundaries. These serve as courts of appeal for inferior courts.97 Moreover, the Federal Court of 

Cassation hears appeals from Courts of Appeal and the Central Criminal Court of Iraq (CCCI).98 

Special Juvenile Courts deal with offenses committed by minors, defined as those under 

18. The minimum age of criminal responsibility under Iraqi law is 7 years. Limitations exist on 

the sentencing of juveniles: offenders aged between 9 and 14 may be sentenced to a maximum of 

12 months detention. Those aged 14-18 may receive a maximum of 5 years. 

As in most civil systems, Investigative Courts collect and review all evidence during the 

investigative phase of proceedings and determine whether to transfer the case for trial. They exist 

within most, if not all, of Iraq’s courthouses. 

94 Al-Bakr was the head of the Revolutionary Command Council. Saddam Hussein was al-Bakr’s vice 

president.

95 The Civil Code law No. 40 of 1952 (as amended). Civil Procedures law No. 83 of 1969. Law of 

Commerce No. 30 of 1984. Law of Criminal Proceedings with amendments No 23 of 1971. Law on 

Criminal Proceedings No 23 of 1971. 

96 This summary concentrates solely on the criminal law system. Judge Advocates wishing to research 

aspects of the Iraqi Civil and Commercial Laws may wish to study the summary produced by the Office 

of the General Counsel at the US Department of Commerce 

http://www.trade.gov/static/iraq_prewarcommlaw.pdf.

97 See generally Book Four and Para 177 Law on Criminal Proceedings No 23 of 1971. 

98 On 22 April 2004, CPA Order 13 created the CCCI. The intent was for it to serve as a complimentary 

court to assist the existing misdemeanor and felony courts. Originally based in Baghdad, the CCCIs now 

holds court in most of Iraq 18 provinces. The CCCI has jurisdiction over all offenses that felony and 

misdemeanor courts may hear. By design, it concentrates on serious crimes, terrorism, organized crime, 

and government corruption. Since its creation in 2004, the CCCI has heard over 2,500 cases. This 

includes many cases referred by TF 134. 

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c)	 Sources of Iraqi Criminal Law 

Following the establishment of the Coalition Provisional Authority following the US-led 

invasion in 2003, the CPA took steps to reintroduce the Iraqi Law in existence before Saddam 

Hussein became head of state in 1979. As far as the criminal code and procedure were 

concerned, this was the result of two CPA Orders. CPA Order No 799 reintroduced the Penal 

Code of 1969 and CPA Memo No 3100 reintroduced the Law of Criminal Procedure of 1971. 

The following is a working summary of both codes aimed at Judge Advocate practicing 

in the rule of law arena. 

d)	 Iraqi Criminal Procedure: Law of Criminal Proceedings with Amendments No. 

23 of 1971101 

On paper, the Iraqi Law of Criminal Procedure is one of the most advanced secular 

systems in the region. As with most civil law systems, there are two distinct limbs: the 

investigative phase and the trial process. Unlike their common law counterparts, however, both 

phases have significant judicial involvement. 

The Investigation 

Initiation of criminal proceedings occurs through an oral or written complaint to an 

examining magistrate, police investigator or official, or member of the judicial system. 

Examining magistrates102 or investigators acting under their supervision,103 often called judicial 

investigators, conduct the criminal investigation. This includes examining the scene and noting 

evidence of the offense and injuries sustained. 

Police who receive information concerning an offense have a requirement to immediately 

record the informant’s statement and immediately inform the examining magistrate, further 

emphasizing the role of the examining magistrate. 

The respective roles undertaken by examining magistrates and the police varies 

tremendously in Iraq today. Some units report the police played a dominant role in the 

investigative process. Others suggest the examining magistrate is intimately involved in a 

majority of the cases. 

The basic obligations of the investigators commences with the recording of the deposition 

of the informant. Next is the testimony of the victim and other witnesses and anyone else from 

whom the parties or magistrate wish to hear.104 When doing so, each witness over fifteen years 

old gives evidence under oath.105 

The process by which evidence collection occurs often happens either in open court or in 

the judge’s chambers. The defendant has the right to be present and make comments. 

99 See http://www.cpa-iraq.org/regulations/20030610_CPAORD_7_Penal_Code.pdf. 

100 See http://www.cpa-iraq.org/regulations/20040627_CPAMEMO_3_Criminal_Procedures__Rev_.pdf. 

101 See law.case.edu/saddamtrial/documents/Iraqi_Criminal_Procedure_Code.pdf. 

102 Para 51 Law on Criminal Proceedings No 23 of 1971. 

103 Para 52 Law on Criminal Proceedings No 23 of 1971. 

104 Para 58 Law on Criminal Proceedings No 23 of 1971. 

105 Para 60 Law on Criminal Proceedings No 23 of 1971. 

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Additionally, subject to the consent of the magistrate, the defendant can put questions to the 

witness.106 Indeed, the investigator can compel the complainant or defendant to co-operate in a 

physical examination, or in the taking of photographs or samples.107 

Routine searches require a warrant issued by examining magistrate,108 except in cases of 

necessity.109 There are also provisions for the preservation of evidential integrity. 

Arrest and Detention110 

For the majority of offenses, a warrant from a court or judge is required for arrest.111 The 

police have a duty, however, to arrest those carrying arms openly in violation of the law. 

Moreover, any person may arrest another accused of a felony or misdemeanor, or if they witness 

the commission of an offense.112 

If the suspected offense carries imprisonment as a possible sentence, the investigative 

judge may order the detention of the suspect for a period of 15 days. The investigative judge may 

renew this decision at the termination of the period. This control over pre-trial detention should 

place the case of any detainee within both the knowledge and control of the judiciary. In theory, 

it provides an important check and balance to instances of police wrongdoing. In practice, 

detention within the Iraqi criminal justice system has garnered much criticism in recent years.113 

The total period of pre-trial detention should not exceed one quarter of the maximum 

sentence for the offense, and should not in any case exceed 6 months. Release on bail is possible 

if the judge determines the release will not lead to escape or prejudice the investigation. As 

previously mentioned, theory does not equate to practice in many respects. The large numbers 

held in by the Iraqi criminal justice system and the speed with which the Iraqi Courts are able to 

dispose of cases has hampered efforts to adhere to these strict time limits. 

A wide-ranging amnesty law introduced in February 2008, however, has the potential to 

ease the burdens. It may further reduce the numbers of those in custody both waiting for trial and 

in post-conviction detention. 

Questioning the Accused 

The examining magistrate or investigator should question the accused within 24 hours of 

arrest and record the statement of the accused. If the statement includes a confession, the 

106 Para 63 B Law on Criminal Proceedings No 23 of 1971. 

107 Para 70 Law on Criminal Proceedings No 23 of 1971. 

108 Para 72 – 86 Law on Criminal Proceedings No 23 of 1971. 

109 This includes searches of a location to undertaken to locate someone who has sought assistance from
 

authorities and in cases of fire or suspected drowning.

110 Para 92 – 120 Law on Criminal Proceedings No 23 of 1971. 

111 The warrant, which is valid in all provinces and remains current until executed or cancelled, should 

include details of the accused, the type of offense, and be signed and stamped by the court. 

112 Para 102 Law on Criminal Proceedings No 23 of 1971. 

113 Various reports have documented the abuse and torture of those in police detention – see United 

Nations Assistance Mission for Iraq, Human Rights Report, 1 July – 31 December 2008, 

http://www.uniraq.org/documents/UNAMI_Human_Rights_Report_July_December_2008_EN.pdf; and 

US Department of State, 2008 Human Rights Report: Iraq - 

http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm.
 

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magistrate must record the statement himself, read it back, and he and the accused must both sign 

it. CPA Memo 3 incorporated into Iraqi Law the right to silence and the right to legal 

representation.114 

The law does not permit the use of illegal methods to influence the accused or extract a 

confession. These include mistreatment, threats, injury, enticement, promises, psychological 

influence, and the use of drugs or intoxicants.115 

Trial 

At the end of the investigation, the magistrate decides if there is an offense over which he 

has authority and if there is sufficient evidence for a trial. If there is sufficient evidence, the 

magistrate transfers the case to the appropriate court.116 If the evidence does not meet the 

requisite standard, authorities must release the accused or return the accused confinement and 

order further investigation.. 

In cases of sufficient evidence, the file next goes to the prosecutor, who will formally 

frame the charges and present them charges to the trial judge. The prosecutor may refer the file 

back to the examining magistrate if it is necessary to collect additional evidence. 

The burdens and standards of proof are similar to common law systems. The Iraqi Law 

requires a “sufficiency of evidence.”117 In practice, this is similar to a “beyond a reasonable 

doubt” standard. 

When compared to criminal trial under a common law system, the significant judicial 

involvement in the investigative phase often reduces the extent to which evidence requires 

testing at trial. It is common for the trial judge to be satisfied the examining magistrate’s 

investigation of most of the evidence. Rather, the trial judge tends to focus effort on certain 

aspects of the evidence with which he or she wishes to take issue.118 

The role of counsel at trial also differs significantly when compared to the common law 

system. Again, as characterized by an inquisitorial process, the trial judge will undertake much 

of the questioning. Indeed, in some trials, the role of the advocates may be effectively limited to 

making opening and closing addresses. The court may ask the defendant any questions he or she 

deems relevant.119 CPA Memo 3 deleted the provision that a refusal to answer can be considered 

as evidence against the defendant.120 

While the right to counsel is enshrined in the criminal code, many counsels will not have 

time to take effective instructions from their client. Indeed, some may only meet their client for 

the first time on the morning of trial - even for capital offenses! 

114 CPA Memo 3, Section 4c.
 115 Para 127 Law on Criminal Proceedings No 23 of 1971. 

116 Para 130 Law on Criminal Proceedings No 23 of 1971. 

117 Para 182 Law on Criminal Proceedings No 23 of 1971. 

118 Para 170 Law on Criminal Proceedings No 23 of 1971. 

119 Para 179 Law on Criminal Proceedings No 23 of 1971. 

120 CPA Memo 3, Section 4g.
 

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In order to secure a conviction, the court must have evidence from two sources.121 This 

may include individual witness testimony supported by physical evidence, forensic evidence, etc. 

If a confession obtained by the police is before the court, this may end the trial process, 

as something akin to guilty plea. However, the court will often examine the validity of the 

confession before accepting it. Iraqi Courts provide written reasoning along with their findings as 

well as, if appropriate, reasons for the sentence. 

e) The Substantive Criminal Law: Iraqi Penal Code – No 111 of 1969122 

In 1918, the Supreme Commander of British Forces of Occupation in Iraq drew up a 

penal code, “The Baghdad Penal Code.” As the title suggests, it was initially limited to the 

capital. However, it later had national application. Although a new draft code was produced in 

1957, it was not until 1969 that the Iraqi Penal Code No 111 replaced the Baghdad Penal Code. 

The code, which in translation runs some 139 pages, was the result of jurisprudential 

study, scholarly research, and judicial pronouncements, as well as findings of Arab, regional, and 

international committees. A detailed study of the individual offenses it contains is beyond the 

scope of this Handbook, but it contains a two-part structure. Part One provides detailed guidance 

on matters such as jurisdiction, elements of crimes, defenses, secondary participation, penalties, 

and amnesties. Part Two contains the full catalog of criminal offenses including offenses against 

person, property, state, against the due process of law, offenses that endanger the public, 

drunkenness, sexual offenses, trespass, and defamation. 

f) Recent Amendments 

Of the more recent amendments to the substantive criminal law, perhaps two are worthy 

of detailed comment. 

Terrorism Law 

In November 2005, the Transitional Government enacted the Terrorism Law. The offense 

is widely defined as “any criminal activity ... aiming to disturb the national security and to 

society and cause riot and disturbance among people.”123 The sanctions for such offenses are 

understandably draconian. 

Article 4 stipulates anyone convicted of terrorist activity receive a death sentence. Those 

who hide information about a terror activity or information that could lead to the arrest of 

terrorists are to receive life imprisonment. 

Amnesty Law124 

Perhaps the most significant amendment to the legal landscape was a new law passed on 

February 27, 2008, revolutionizing the existing amnesty laws. The new law allows for those 

121 Para 213B Law on Criminal Proceedings No 23 of 1971. 

122 See http://www.worldlii.org/catalog/54829.html. 

123 See Art. 1 Terrorism Law 2005.
 124 Law No 19 of 2008. 

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under investigation for or convicted of the majority125 of offenses under the Iraqi Criminal code 

to be eligible to apply for amnesty. The decision as to whether an applicant receives amnesty 

rests with a committee made up of judges and public prosecutors. It should be noted, however, 

that that this only applies to offenses committed prior to February 27, 2008. 

Of the offenses not covered by the amnesty are terrorist activity that caused death or 

permanent disability, drug related offenses, and homosexuality (the latter being in line with 

Islamic thought). 

The amnesty law also states individuals detained for 6 months and not brought before 

examining magistrate must receive amnesty, as must those detained for 12 months without the 

transferring of their case to the appropriate court. This applies regardless of the suspected crime. 

By January 2009, amnesty review committees had granted amnesty to 23,500 Iraqis in detention, 

of whom 6,300 had been released.126 

4. Security Agreement 

The United States signed a Security Agreement with Iraq on 18 November 2008127 that 

came into force on 1 January 2009, upon expiry of the UN Security Council Resolutions 

(UNSCR) previously authorizing MNF-I activities.128 

In contrast to the UNSCRs, the Security Agreement requires US forces to arrest, search, 

and detain in accordance with Iraqi law.129 In most cases, this requires US forces conducting 

such operations to obtain Iraqi arrest and search warrants. The exceptions to this rule include the 

ability to arrest without a warrant upon witnessing a crime, and to arrest or search during combat 

operations.130 

The Security Agreement also requires US operations to be “fully coordinated” with Iraqi 

authorities.131 In most cases, this requirement is met by US forces conducting combined 

operations with their Iraqi Security Force (ISF) counterparts. Ideally, those counterparts will 

obtain any necessary warrants from a local investigative judge (IJ). Exceptionally, US JAs may 

be required to assist in obtaining warrants from local or CCCI IJs. Similarly, ISF partners rather 

125 The law specifies that those sentenced to death or convicted of thirteen listed offenses are NOT 

eligible to apply under the amnesty law. 

126 DOD Report to Congress, Measuring Security and Stability in Iraq 3 (March 2009), 

http://www.defenselink.mil/pubs/pdfs/Measuring_Stability_and_Security_in_Iraq_March_2009.pdf. 

127 Agreement Between the United States and the Republic of Iraq On the Withdrawal of United States 

Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, (Nov. 

17, 2008), available at http://www.mnf-iraq.com/images/CGs_Messages/security_agreement.pdf (last 

visited Aug. 14, 2009). 

128 UNSCR 1546, 8 June 2004 (authorizing internment where necessary for “imperative reasons of 

security”), http://www.iamb.info/pdf/unsc1546.pdf; UNSCR 1790, 18 December 2007 (renewing MNF-I 

mandate until 31 December 2008), 

http://daccessdds.un.org/doc/UNDOC/GEN/N07/650/72/PDF/N0765072.pdf?OpenElement. 

129 Id. at Art. 22. See also Trevor A. Rush, Don’t Call It a SOFA! An Overview of the New U.S.-Iraq 

Security Agreement, Army Lawyer 34 May 2009, http://www.loc.gov/rr/frd/Military_Law/pdf/05­

2009.pdf [hereinafter Don’t Call It a SOFA].

130 Don’t Call It a SOFA, at 43-44. 

131 Security Agreement, Art. 4(2). 

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than US forces will normally be responsible for any detainees. US forces who do detain Iraqis 

must obtain the consent of a competent Iraqi authority (a “CIZA”) to do so.132 

5. Engaging Iraqi Judges 

Coalition forces’ ability to effectively conduct rule of law operations largely depends on 

the degree of influence they have with the Iraqi judiciary. This influence is often derived from 

the level of respect the Iraqi judges have for their collation partners and advisors. The vast 

majority of the Iraqi judiciary are intelligent, educated and dedicated. As a result, coalition 

capacity building efforts with the judiciary have been tremendously successful and the judiciary 

far exceeds most other Iraqi Government organizations in terms of transition, growth, and 

independence since 2003. In order to understand the dynamic relationship between the Iraqi 

judiciary and other branches of the Iraqi government, the rule of law practitioner must 

understand that “judicial independence” is a relatively new concept in Iraq. While Iraqi judges 

have made great strides towards exercising more judicial independence, those working with them 

must always remain sensitive to the cultural and historical norms that tend to hinder judicial 

independence in Iraq. 

Relationships start with respect, dignity and hospitality. Similar to other Arabs, Iraqi 

judges expect a level of respect and honor. A failure by coalition forces to engage with the 

requisite amount of respect will result in weaker relationships and will limit accomplishments. 

Conversely, the willingness of coalition forces to be sensitive to Iraqi and Arab cultural mores 

makes all the difference in the development of the relationship.133 The educated Iraqi judiciary 

has upfront expectations and assumes that coalition forces are educated and sophisticated enough 

to engage properly. These expectations must be maintained. 

The perception of a judge that he is being shown respect commensurate with his position 

is by far the most significant area to leverage. Respect is shown in many ways. First it is shown 

in the consistency of the engagements, their length, and their tone. Judges should be engaged 

regularly. To establish the relationship consider more frequent engagements at the beginning. 

Respect is also shown in the use of proper Arabic phrases and acknowledgement of basic Iraqi 

culture. Addressing judges in honorific terms, in Arabic, shows a judge that you have made the 

effort to show respect. They will help achieve reciprocal treatment and judicial actions consistent 

with coalition goals. 

While Iraqi relationships and government structures are dominated by Islamic tradition, 

most judges are secular in their professional roles. Moreover, they are sophisticated enough to 

realize that many coalition engagement “blunders” are due to ignorance, with no offense 

intended. Judges may overlook insensitive and disrespectful behavior if it is believed to be 

unintentional. However, if the goal is to build an effective professional relationship, the coalition 

engager must take the time to learn things the “Iraqi way.” 

132 Security Agreement, Art. 22(2). 

133 See Arab Culture Awareness: 58 Fact Sheets, TRADOC DCSINT Handbook No.2, January 2006. 

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Insurgent Responses to Changing Procedures in Iraq 

Savvy insurgents have adapted to the new environment under the US/Iraq 

Security Agreement by developing tactics, techniques, and procedures to subvert 

and sabotage the warrant and detention process. 

For instance, insurgents recognize that coalition and Iraqi security force 

operations depend on witness or “source” testimony, and thus regularly rely on 

fear and intimidation to control witnesses, sources, police, judges, and anyone 

else involved in the legal process. Not even family members of key participants in 

the legal system players are safe from violent insurgent tactics, such as 

kidnapping for ransom or assassination; in fact, families are the most vulnerable 

since they do not have personal security detachments assigned to them as do 

judges or high-value witnesses or informants. 

One response is to stand up special witness handling teams (WHT). The early 

iterations of WHT recognized that witnesses must be (1) properly identified and 

vetted, (2) handled and protected by individuals familiar with confidentiality and 

capable of traveling discreetly, (3) obliged (committed) to testify when the time 

comes, and (4) prepared for the inquisitorial style of the investigative judge (IJ). 

Proper witness handling must be discreet in practice, coordinated with CCCI 

and/or a trusted IJ, and managed by the BCT's subject matter expert, often the 

brigade law enforcement professional (LEP) contractor, Rule of Law JAG, 

Human Intelligence Collection Team (HCT), S2 on a Military Training Team 

(MiTT), a specially-tasked Army CID agent, or some other designated “case 

agent” tasked by the BCT Commander.. Proper protocols for witness protection 

and transportation should be planned and rehearsed. 

Another insurgent technique is to readily admit to terrorist acts or recent crimes 

during tactical questioning or subsequent interrogation. Recent cases suggest that 

insurgents who rapidly satisfy the unit’s written list of tactical questions do so as 

to cut short the entire operation and specifically to avoid thorough site 

exploitation. Insurgents recognize that the information they give security forces 

on-scene, even if incriminating, has to be supported by other evidence to be 

believed by an Iraqi judge. In response, Iraqi judges encourage security forces to 

“frontload” their “warrant” packets with any conceivable corroborating evidence. 

After trial and error, United States and Iraqi security forces developed unique 

items that judges consider evidence for inclusion in the eventual criminal case 

files. For example, some units draw sanitized link diagrams to show the 

insurgent’s connection to the terror network, which gives the judge more 

background of the suspect’s associates and ammunition during questioning. More 

Iraqi judges are accepting forensics, but wider acceptance and understanding will 

take time. The uncorroborated confession is seen by IJs as a waste of time, 

inhibiting flow-through of good cases and chips away at the rapport and trust that 

units have worked hard to establish with the judiciary. 

It is important to engage the right personnel. The Iraqi legal system is hierarchical; the 

local investigative judge answers to his court’s chief judge. That judge answers to the chief 

provincial judge. That judge alone has access to the Higher Juridical Council, the body that 

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governs judges in Iraq. Iraqi judges adhere to this chain of command. Not following it is a sign 

not just of ignorance, but of disrespect. At the division level, the focus of engagement will 

frequently be on chief provincial and chief appellate court judges. Local judges cannot make 

important administrative or logistical decisions without the concurrence of their superior judges, 

regardless of their own seeming agreement or enthusiasm, and so it is necessary to gain the 

concurrence of the chief provincial judge for most projects. This dynamic also matters at the 

brigade level. BCT rule of law personnel can be included in engagements with the chief appellate 

and chief provincial judges involving their local courts, enhancing the credibility of the BCT 

personnel with their respective local court judges. 

With status-conscious Iraqis, the more senior the engager from coalition forces, the better 

the results will be. However, it is impractical to have BCT commanders consistently engage with 

the courts. Frequently, judge advocates will be the primary engagers.134 In areas where there 

were fewer forces, the servicing Provincial Reconstruction Team (PRT) rule of law advisor 

would take the lead. Even more important that seniority, however, is the repeated involvement of 

the same personnel in engaging judges. Soldier paralegals also serve an important function for 

engagement strategy. At MND-C, paralegals accompanied rule of law officers on most 

engagements and assisted by simultaneously engaging court administrators and other support 

staff. During engagements that involved tasks such as computer training, the paralegal interacted 

one-on-one with Iraqi judges.135 

Lower court judges are required to report to their chief provincial or chief appellate 

judges, often in writing. The Iraqi court system has tremendous documentation and scrupulous 

record-keeping. Lower court Iraqi judges fully brief to their superiors all contact with coalition 

forces. It is respectful and advisable for the coalition engager to request permission of the chief 

appellate or chief provincial judge before setting an engagement with a lower court in the 

jurisdiction. This technique can be very helpful in showing judges that their system was 

understood and followed. Furthermore, lower court personnel will be much more amenable to 

developing positive relationships with collation forces with the permission, or at the direction, of 

their chief judge. If this courtesy is ignored, the chief judge will eventually still find out about 

the engagement, and it may cause unneeded pressure on the lower court judges and ultimately 

strain or irreparably harm your relationship. 

Iraqi judges are smart and educated. Many speak formal Arabic in addition to their Iraqi 

dialect. They know their law, which has changed little substantively since 2003. Even if there is 

some indication that local judges are not similarly competent, the wise coalition engager should 

not suggest anything except respect for the tradition and competence of the judiciary. Shame and 

honor can easily converge when working on issues requiring the cooperation of the judiciary. 

One should avoid statements that may be construed as accusations of error, lack of diligence, or 

incompetence. The judge will typically protect and defend his and the court’s honor at all costs. 

Criticisms are taken very seriously and can cause unintended consequences. 

134 One possibility at the brigade level is to have the Deputy BCT Commander as the engagement lead for 

their local court; that approach has worked in previous BCT engagements. 

135 The Soldier paralegal is also invaluable for assisting with engagement security by sharing knowledge 

of physical layout of courthouses and court personnel with the judge’s personal security detail. The value 

of the paralegal can be seen in every aspect of rule of law operations. At MND-C, the ability to leverage 

paralegal assets was key to the mission’s success. 

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Iraqi judges are proud of their legal heritage and will routinely have prints or tapestries of 

Hammurabi on their walls. 136 They may also have a framed Qur’anic verse relating to a judge’s 

duty to be fair and impartial. Respectfully acknowledging the same is a small but important 

aspect of initial engagement. The Qur’an is typically on the judge’s desk and covered to keep it 

dust-free. Do not ask to peruse it; the request would probably be granted out of politeness, but 

would likely be seen as inappropriate. 

Judges in Iraq have not historically had significant relationships with the military (Iraqi 

Army and National Police). The need for security in postwar Iraq has required judges to form 

new relationships with the army and police. Both entities have varying levels of trust of the 

judiciary and vice versa.137 Coalition forces need to be sensitive to this dynamic and realize that 

army and police issues will typically require more finesse. Do not expect rapid trust from a 

judge. 

Agree to meet judges at their courts. It not only shows respect, it shows the capability to 

move around the operating environment – the ability to leverage a convoy of trucks and 

personnel. Freedom of movement is symbolic of power and authority, both of which are 

respected in Iraq. It also supports the perception of security. One of the recurring problems for 

judges is lack of adequate personal security. Coalition presence at the courthouse helps show 

adequate and improving security. Finally, it is the best way to gauge the status of the court. 

While coalition forces have become a normal fixture in Iraq, courts may still be 

uncomfortable with the presence of servicemembers and weapons. If the security situation is 

permissive, remove all protective gear as soon as practicable and conduct the engagement 

without holding weapons. Keep personal security details out of the meeting room, if possible. 

Civilians engaging with judges should wear appropriate attire. Ties and sport coats suggest 

respect to the judge. Women should always dress professionally and conservatively. Remove 

headgear, sunglasses and gloves as soon as possible and before shaking hands. Be sensitive to 

the fact that you are in a court. 

Spend plenty of time greeting. Always greet the senior person first. Work your way 

around and shake hands with each person as practicable. Putting one’s hand over the heart 

connotes respect and sincerity. After taking one’s place, be prepared to spend plenty of time on 

extended greetings and initial discussion. Do not go right into business as it is contrary to the 

Iraqi way. Spend time asking the judge about current events and his opinion of coalition forces 

or Iraqi Security Forces, but don’t expect to engage on such issues until your relationship is welldeveloped. Similarly, expect the first meetings to be more cordial than substantive. As the 

relationship develops, judges will gradually engage on more substantive issues and work towards 

resolving coalition issues of interest. 

136 Hammurabi was the sixth King of Babylon and is known for the set of laws called Hammurabi’s Code, 

one of the first written codes of law. 

137 The relationship between Iraqi security forces and the judiciary is critical for local security and the 

functioning of the prosecution of terror suspects. Attention and time by coalition forces is needed to 

nurture these relationships. Senior Iraqi army officers reported to the author that prior to the 2003 

invasion and the subsequent disbanding of the Iraqi army, the army enjoyed a higher standing with the 

judiciary than the police. 

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Do not ask questions about a judge’s female family members including his spouse. 

Openness and friendliness, while sincere, may offend. Sensitivity to this Islamic tradition shows 

respect. Iraqis do however greatly appreciate your interest in their culture, language, and history 

and welcome appropriate questions. Expressed interest in Iraqi history can demonstrate respect 

for both the judiciary and legal system. When engaging Iraqi officials both male and female, 

remember to maintain eye contact; not looking at someone suggests they are unimportant. 

Engage in friendly discussion and do it leisurely. Engagements with judges should 

typically last one to three hours. “Drive-bys” should be avoided and suggest lack of respect. 

Judges will not rush and will make a great effort to be hospitable, attempting to show respect. An 

Arabic word, “karamah,” partially captures the approach: it suggests granting others respect, 

honor and dignity, and treating others with generosity. Doing so is part of the “righteous path” 

and consistent with the Qur’an’s teachings.138 Judges may take phone calls during the 

engagement. This is not a sign of disrespect. Also, interruptions by other court personnel may 

occur, very often this will be to offer tea and other assorted deserts. When offered such items of 

hospitality, you should graciously accept the first round. 

Use the same coalition interpreter or advisor whenever possible. The judge will form a 

concurrent relationship with this person. A savvy and motivated advisor can make a tremendous 

difference in the growth of the relationship with the judge. Uneducated or otherwise 

unsophisticated interpreters hamper engagements. As relationships mature, the level of privacy 

and trust accorded coalition forces will increase. Having the same Arabic speaker at each 

engagement will hasten this process. Furthermore, much of the contact with the judge will occur 

over the phone. If the judge trusts and likes the interpreter, he will be more willing to engage 

remotely. Be cognizant of ethnic and tribal affiliations.139 Work in advance with your interpreters 

to prepare them for engagements. The judges will be able to quickly discern if the interpreters 

are aware of the agenda. It indicates respect that preparation occurred. 

Strive to avoid uncertainty. The strict rules and laws in Iraqi culture reduce the tolerance 

for ambiguity.140 Judges will seek to avoid risk and the chance of the unexpected occurring. They 

will invariably become uncomfortable and resistant if coalition personnel advocate situations 

with uncertain outcomes. In general, they will not accept risk. Decisions are typically made 

gradually. The dynamic changes that occur with shifting coalition personnel and issues, 

battlespace boundaries, and Iraqi government development are all contrary to traditional Iraqi 

thought. With judges, be sensitive to questions that may force an “I don’t know” response, as this 

is distasteful for Arabs. 

Build your relationship by following through on “promises.” Be careful what you agree 

to do. If you agree or promise to do something and fail to follow through, you risk reinforcing 

the common Arabic perception that “America never keeps its promises.” Iraqi judges are very 

conscious of coalition efforts, whether they are sustained engagement efforts or tangible rule of 

law initiatives. Do not risk a loss of credibility early on by promising the unobtainable. Rather, 

indicate that you will “look into it.” 

138 See “Understanding Islam” at www.understanding-islam.com (last visited 22 August 2008). 

139 Some coalition personnel believe that non-Iraqi Arabs (e.g., Egyptian, Moroccan) are more effective 

with Iraqi judges due to continued issues of sectarian mistrust. 

140 JODIE R. GORRILL, DOING BUSINESS IN IRAQ: IRAQI SOCIAL AND BUSINESS CULTURE (2007). 

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Engaging key judges can be the most significant of any rule of law initiatives. The 

dividends from consistent judicial engagement can range from security solidification, increased 

judicial capacity, and the growing confidence of court personnel and host nation citizens. 

Investing time and effort in judicial relationships is likely to remain one of the most critical parts 

of reinforcing the rule of law. 

6. References and Further Reading 

Law Library of Congress – Iraq - www.loc.gov/law/help/guide/nations/iraq.html
 

World Legal Information Institute Country Studies Iraq - www.worldlii.org/iq/ 

Iraqi Corporate Law – www.gulf-law.com/iraq_law.html
 

CHIBLI MALLAT, INTRODUCTION TO MIDDLE EASTERN LAW (2007). 

Zuhair E. Jwaideh, The New Civil Code of Iraq, 22 GEO. WASH. L. REV. 176 (1953). 

Dan E. Stigall, Iraqi Civil Law: Its Sources, Substance, and Sundering, 16 J. TRANSNAT'L L. &
 

POL’Y 1 (2006) 

Haider Ala Hamoudi, Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and 

Man: Legal Pluralism and the Contemporary Muslim Experience, 1 BERK. J. MIDDLE 

EASTERN AND ISLAMIC L. (2008). 

Dan E. Stigall, A Closer Look at Iraqi Property and Tort Law, 68 LA. L. REV. 765 (2008). 

Global Justice Project: Iraq (English translations of some Iraqi legislation) - 

http://www.gjpi.org/library/primary/iraqi-legislation/ 

Global Justice Project: Iraq (criminal law and procedure resources) - http://www.gjpi.org/centralactivities/criminal-procedures/ 

United Nations Development Programme Iraqi Legal Database (in Arabic) - http://www.iraqild.org/AboutEn.htm 

US Department of State, 2008 Human Rights Report: Iraq - 

http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm 

Human Rights Watch, “The Quality of Justice, Failings of Iraq’s Central Criminal Court” - 

http://www.hrw.org/sites/default/files/reports/iraq1208webwcover.pdf 

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Chapter IX - Theater-Specific Information 264 
 

 

X. Rule of Law Narratives 

Editors’ Note: This chapter contains the experiences of three Judge Advocates who 

conducted rule of law missions in Iraq and Afghanistan during 2008 and 2009. These are 

descriptions of their experience written from their own perspectives. The first narrative is from a 

Judge Advocate who replaced the author of one of the narratives written for the 2008 edition of 

the Handbook. The other two entries are from individuals who occupied similar coordinating 

positions in both Iraq and Afghanistan and allow some comparison of the centralized 

coordination mechanism at the respective US embassies in those two countries. 

A. A Continued† Case Study: Rule of Law in Afghanistan 

Counter-Insurgency Operations 

∗

1. Introduction 

The 4th Brigade Combat Team1 (4BCT), 101st Airborne Division (Air Assault) deployed 

to Regional Command - East (RC-East) in southeastern Afghanistan in March 2008. Under the 

leadership of Brigade Commander, Colonel John “Pete” Johnson, 4BCT was focused on the 

counter-insurgency (COIN) fight, but well-trained and prepared for the many kinetic 

engagements that took place during the year long deployment. The mission was to separate the 

insurgents from the Afghan populace and support the Afghan government in a manner where the 

Afghan leaders were at the forefront. 

As the Brigade Judge Advocate, I took over2

 rule of law as my piece of the counterinsurgency fight.3

 I was not overly prepared for the intricacies of initiating rule of law projects in 

Afghanistan when I first deployed. My real training was more on-the-job training I received 

† See MAJ Robert A. Broadbent, Rule of Law Development in Counter-Insurgency Operations: An 

Afghanistan Case Study, in THE RULE OF LAW HANDBOOK: A PRACTITIONERS GUIDE 257-66 (Center for 

Law and Military Operations 2008 ed.) [hereinafter Broadbent, Rule of Law Development]. This narrative 

takes up at the point of then-MAJ Broadbent’s redeployment. 

∗

 MAJ Jeffrey J. Mullins served as the Brigade Judge Advocate for the 4th Brigade Combat Team (CTF 

Currahee), 101st Airborne Division (Air Assault), in Southeastern Afghanistan from March 2008 to 

March 2009. 

1

 The 4th Brigade Combat Team was known as Combined Task Force Currahee operating in AO 

Currahee that included six provinces of southeastern Afghanistan (Khost, Paktya, Paktika, Logar, 

Wardak, and Ghazni) that, together, were roughly the size of the state of West Virginia. 

2

 My predecessor was then-MAJ Robert A. Broadbent, Brigade Judge Advocate, 4th BCT, 82nd Airborne 

Division, who was instrumental in preparing me for the long, and sometimes frustrating, rule of law road 

I was set to travel. 

3

 COL Johnson granted me authority to “move out aggressively” with the rule of law programs with the 

understanding that I kept him well informed of each project and how it affected the Afghan government, 

Afghan people, other U.S. Agencies, and our mission. Each project incorporated his guidance, the mission 

focus and the idea of providing substantial progress to the Afghan people. 

265 
 

 

Rule of Law Handbook 

when I reached Afghanistan.4 I noticed from the start that, if allowed, I could spend every minute 

of the deployment day5

 on initiating rule of law programs, interacting with Afghan judicial 

officials and leaders, and working closer with other U.S. and international agencies conducting 

rule of law programs throughout Afghanistan.6 

Rule of law in Afghanistan can be characterized as having two distinct parts: the city of 

Kabul and everywhere else. Many Afghan people feel safer in Kabul than anywhere else in 

Afghanistan, and outside of Kabul, the existence of laws and enforcement of the laws vary 

greatly. Rule of law projects also vary greatly depending on which agency initiates them, how 

much they cost, and whether they are supported by the U.S. Embassy, National Afghan 

Agencies, and the local Afghan government. What follows describes my receiving the rule of 

law baton, my leg of the race, and my somewhat reluctant passing of the baton as I redeployed. 

2. Receiving the Rule of Law Baton 

Although the rule of law may not be well-developed in Afghanistan, the theater itself is 

mature, and when I arrived, I inherited a number of existing rule of law initiatives. On the third 

day of my scheduled 15-month deployment, I headed out on a convoy to get a feel for one of the 

largest rule of law projects ever initiated in Afghanistan: the Khost Justice Center.7

 The Justice 

Center was initiated to be a “one-stop shopping” judicial center. It is a large Commander’s 

Emergency Response Program (CERP) project constructed on an area roughly 300 yards long 

and 150 yards wide. It contains 13 judicial buildings, to include a judge’s quarters, prosecuting 

attorney quarters, defense attorney quarters, a pre-trial confinement facility for suspected 

insurgents,8 an administrative building, and conference hall, among others. The Justice Center 

also included a new courthouse with separate office space for prosecuting attorneys and defense 

attorneys during trials, permanent office space for judges, and an office for court clerks.9 This 

became my pet project. 

4

 My rule of law pre-deployment training included a Rule of Law elective class in the 55th Graduate 

Course at The Judge Advocate General’s Legal Center and School in 2007. However, there was very little 

Afghan specific rule of law training during the Leadership Training Program (LTP) or during 4BCT’s 

rotation at the Joint Readiness Training Center at Fort Polk, LA. 

5

 The deployment day typically lasted 18-20 hours during the spring/summer/fall months and 14-16 hours 

during the winter months. It is the only time in my life I wished for more winter. 

6

 Other U.S. and International Agencies included the U.S. State Department, U.S. Agency for 

International Development, the U.S. Department of Justice, U.S. Institute of Peace, the United Nations 

Assistance Mission in Afghanistan (UNAMA), and the World Bank. 

7

 The Khost Justice Center was originally called the Terrorist Prosecution Center and later changed to the 

High Value Cases Justice Center and lastly, the Khost Justice Center. The Rule of Law office in the U.S. 

Embassy encouraged the name changes due to feedback they received from the Afghan Supreme Court, 

Afghan Ministry of Justice, Afghan Ministry of Interior and the Afghan Attorney General’s Office. See 

Broadbent, Rule of Law Development at 262-65 (discussing the “High-Value Case Prosecution 

Program”).

8

 A separate pre-trial confinement facility for suspected insurgents was vital to keeping with Afghan law 

because insurgents were not allowed to be confined with general criminals. Prior to the construction of 

the Justice Center, there were no prosecutions of suspected insurgents in AO Currahee. 

9

 The courthouse also included a modern latrine, kitchen and break area. 

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Another pre-existing project in the area of operations (AO) was a large scale Quarterly 

Continuing Legal Education (CLE) Program.10 The idea was to coordinate and conduct quarterly 

CLEs for a large number of Afghan Judges and attorneys living and working throughout AO 

Currahee. In keeping with my Brigade Commander’s intent that all rule of law initiatives be 

Afghan-centric, the CLEs were organized by the BJA staff and supported by CERP funds, but 

the CLEs were taught by Afghan professors from Kabul University Law School. 

Another rule of law project I inherited was the Jingle Truck Initiative.11 This project held 

contractors and drivers accountable when the contracted trucks arrived at their final destination 

without all the invoiced property. 12 It was also a means of generating revenue for the local 

government by fining drivers who were found guilty of stealing property or letting others steal 

the property. All of these rule of law programs had several hurdles to be overcome while moving 

them forward for the benefit of the Afghan populace. 

Finally, I inherited a huge number of ideas for smaller rule of law projects. Some of the 

ideas were easy to implement, some of the ideas were a little more challenging, and some of the 

ideas were ahead of their time. But the most valuable rule of law asset I inherited was the Afghan 

Attorney Advisor. He knew every prominent legal official in the country, was passionate about 

forwarding rule of law in his homeland, and worked tirelessly and at the risk of his own life to 

make Afghanistan a better place.13 

3. Racing Afghan Rule of Law Programs Forward 

a) Quarterly Continuing Legal Education Program 

The operational tempo combined with never ending administrative issues precluded fulltime attention to the rule of law, the best COIN weapon available.14 My Afghan Attorney 

Advisor was able to streamline interaction with Afghan agencies by speaking with the Director 

of the Afghan Supreme Court, the assistant to the Attorney General, and the Deputy Chief of the 

Ministry of Justice. He could also schedule individual meetings with and among those high-level 

10 Smaller scale CLEs had been conducted throughout the six provinces in the preceding 12 months, but 

they were mostly limited to province-specific locations. See Broadbent, Rule of Law Development, at 264­

65. 

11 Jingle Trucks were the type of Afghan truck contracted to ship gas, PX items, military containers and 

vehicles, etc. to different Forward Operating Bases and Combat Outposts throughout Afghanistan. 

12 There were many instances of drivers claiming ignorance of the missing property, but very few 

instances of drivers reporting theft of property to the proper authorities. 

13 See Broadbent, Rule of Law Development, at 261. The local national attorney, known as “The 

Professor” for teaching English to so many Afghans in Khost Province, graduated second in his class 

from Kabul University Law School. He often received “night letters” threatening his life and his family’s 

lives for working with Coalition Forces, but he continued to work harder and longer hours despite the 

threats. 

14 Rule of law is the best counter-insurgency weapon because it will enable the country to increase 

security by prosecuting insurgents and, if guilty, imprison them and remove them from the battlefield. 

Security is a huge issue throughout Afghanistan, but it is impossible to have security if the country lacks 

the ability to enforce its laws. 

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Afghan officials. Outside the Afghan agencies, I was responsible for coordinating and interacting 

with the Rule of Law section at the U.S. Embassy, UNAMA and the World Bank.15 

The Quarterly CLE program was the first project I worked on. The first step was to 

obtain approval for the program from the Afghan Supreme Court; providing legal training to 

Afghan Judges and attorneys in the same venue could not take place without the Afghan 

Supreme Court’s blessing. Through my Afghan Attorney Advisor, I was able to submit my 

request directly to the Director of the Afghan Supreme Court and we received an affirmative 

written response within a week of submitting my official request.16 

The Quarterly CLE topics were created using Afghan Judicial Desk Sets.17 It was the best 

resource for creating the CLE topics because the Judicial Desk Sets were both modeled after the 

Afghan Constitution and in very high demand. We contracted with the Kabul University Law 

School professors to create the actual CLE class material based on the syllabus derived from the 

desk set.18 In addition to creating the CLE class material, the professors were also contracted to 

actually provide a majority of the CLE training. By the second and third Quarterly CLEs, though, 

the attendees also received CLE training from an Afghan Supreme Court Judge, attorneys from 

the Attorney General’s office, attorneys from the Ministry of Justice, and the Dean of Kabul 

University Law School. Obtaining additional instructors was easy because each of the Quarterly 

CLE sessions were conducted at the Kabul University Law School facility.19 

The first Quarterly CLE covered both criminal law practice and procedure and civil law 

practice and procedure. It received high praise from all the attendees and there were many 

requests to extend the one-week program to two weeks.20 Attendees included Supreme Court 

Judges, prominent Provincial Judges, attorneys from the Attorney General’s office, and local 

Judges and attorneys from the six different provinces. 

15 Although there was some tension between the U.S. Department of State and the U.S. military officials 

working in the rule of law arena, it was clear to everyone that the State Department had the lead when it 

came to the Afghan rule of law mission. It was also clear that the U.S. military had both excellent rule of 

law ideas and the means to implement them. Over time, the relationship between the two U.S. agencies to 

moved forward in a positive direction 

16 Because we had gone directly to the Afghan Supreme Court, the Rule of Law section at the U.S. 

Embassy was initially unaware that the Court had approved the request. A copy of the approval letter was 

forwarded to the Rule of Law Coordinator at the U.S. Embassy, which eventually paved the way for 

additional CLE projects throughout Afghanistan. 

17 The Afghan Judicial Desk Set was a 17 volume judicial guide derived from the Afghan Constitution. 

The Desk Sets were originally created and paid for by the USAID. Each province was given 

approximately 600 sets to distribute to Judges and attorneys. It was such a popular product that an 

additional 600 sets were distributed to each of the six provinces in AO Currahee.

18 Once the CLE class material was prepared, it was collected and taken to a publishing company to 

manufacture 120-150 CLE booklets. 

19 After conducting smaller provincial level CLEs it was decided that large scale CLEs involving 120-150 

Judges and attorneys from six provinces would work better in Kabul. Most of the judicial officials and 

legal practitioners felt safe in Kabul and were willing to travel there for the CLEs. 

20 The Rule of Law section at the U.S. Embassy implemented a policy in late 2008 that any Afghan CLEs 

created and resourced by U.S. agencies were limited to one-week durations. 

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The second Quarterly CLE focused primarily on the civilian legal practice. It covered 

topics such as divorces, family law, property disputes, insurance and financial laws. This CLE 

was also well received and we also received additional requests for CLE training in these area of 

law.21 

The third iteration of the Quarterly CLE program focused on corruption in the courtroom. 

Corruption was a topic of much interest because of the numerous claims of corrupt Afghan 

officials, including judicial officials.22 Like the two before, this CLE included a mock trial as 

part of the training. The mock trial was an essential part of the program that allowed the 

attendees to actually practice what they were learning, which was particularly important because 

some Afghan judges had very little legal training, if any. 

The fourth iteration of the Quarterly CLE was scheduled to occur after my redeployment, 

but the CLE program continued to be modified and updated. It was during the planning stage of 

the fourth Quarterly CLE that the idea to expand the Quarterly CLE Program to other provinces 

was initiated. It was a bold step forward to expand the program to include each Afghan Province 

from RC-East, but doing so would require coordination among all the brigades in RC-East 23with 

the support and guidance of the CJTF-101 SJA and his Rule of Law Coordinator.24 

b) Khost Justice Center 

The project I made my highest priority, the Khost Justice Center, was more like an 800 

pound gorilla than a 25 pound dog. However, it was the most necessary of all rule of law 

projects. Insurgents need to be prosecuted and convicted if guilty. Judges and prosecutors need a 

safe work environment where they are not gunned down walking to work.25 Afghanistan needs 

provincial level justice centers in each province. The establishment and enforcement of laws 

cannot only take place in Kabul, but must take place throughout the entire country. 

21 The enthusiasm that Afghan judges and attorneys displayed over civilian legal practice was taken as an 

indication that the program was successful, but more importantly, that legal practice was headed in the 

right direction. Their realization of the value of civil law was taken as a sign of development. Under the 

prior regime, Afghans had largely ignored courts as a mechanism for resolving civil disputes, and civil 

practice consequently had been a low priority. 

22 Many judges’ salaries were between 50 and 200 dollars a month. Without judicial pay reform judges 

were unlikely to risk their lives and their family’s lives convicting terrorists who could pay much better 

for acquittals and who had connections throughout the country. 

23 Each BCT in RC-East had considerable leeway to organize their rule of law projects as they deemed 

appropriate, complicating the coordination effort. 

24 CJTF-101 was very supportive of the rule of law efforts made in AO Currahee. The projects received 

considerable command attention. For instance, the CTF Currahee Commander briefed the CJTF-101 

Commander after each CLE was conducted. The CJTF-101 Commander openly acknowledged the 

Quarterly CLE program as a great rule of law project during his Commander’s Update Brief and 

encouraged the expansion of the program.

25 A month into my tour, the Deputy Prosecuting Attorney in Khost Province was shot four times walking 

to work in Khost city. He miraculously survived the attack and, recovering in the hospital, he said “I want 

to get the men who did this.” Four months later, the insurgents fired multiple shots at the Chief Provincial 

Judge for Khost as he walked to work one morning. He died from that attack. 

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It quickly became clear that coming up with the idea behind the justice centers, 

submitting the CERP project for funding, and even constructing the justice centers was the easy 

part. Just because a justice center is built does not mean that Afghan judicial officials will use it. 

Coordination among Afghan institutions was the hardest part. Because the Khost Justice Center 

was included all the functions of a justice center, the various agencies representing the different 

functions (the Afghan Supreme Court, Attorney General’s office, the Ministry of Justice, and the 

Ministry of Interior) had to agree to work together at this one site.26 Even before obtaining an 

agreement among the Afghan agencies, an agreement between the U.S. agencies needed to be 

reached on how the Khost Justice Center would operate. The justice center concept was not 

initially approved by all the relevant USG agencies. What was agreed was that the justice center 

would be run completely by the Afghan government; the U.S. military would not play any role in 

its operations, the justice center would try both insurgents and general criminals and, if 

convicted, would imprison both insurgents and general criminals given the large prison and the 

ability to keep the two groups separated. 

Once the USG agencies agreed on the overall justice center concept, it was time to brief 

the national Afghan leaders in Kabul. The first meeting took place in July 2008 at the U.S. 

Embassy in Kabul. A joint U.S. agency front on the Khost Justice Center was presented to the 

Afghan Supreme Court Director and Chief Financial Officer, Afghan Attorney General, and the 

Chief Deputy of the Ministry of Justice. A second meeting took place in August 2008 at the 

Embassy and it included the prior attendees and the Chief Deputy of the Ministry of Interior.27 

The Afghan agency leaders recessed from the second meeting and took several months to meet 

independently and contemplate the Memorandum of Agreement (MOA) provided to them.28 

Finally, in December 2008 the MOA was signed by all parties to the agreement. The Khost 

Justice Center was an official judicial Afghan compound. The only problem is that no one is 

using it. 

In addition to the problems getting all the parties to agree, there was a problem with 

funding the daily operations of the compound. The funding issue was two-fold: the funding 

requirements would cut into Kabul funds29 and three Afghan agencies would need to contribute 

proportionally to the operating costs, which was not covered in the MOA.30 The final problem, 

but the easiest to fix, was that the compound did not contain a water well. The water well was 

26 This was an exceptionally daunting task because, following the communist model of the 80s, each 

agency was highly independent and the government lacked a culture of working with the other agencies 

for the common good. 

27 The Ministry of Interior (MOI) was reluctant to participate originally and did not want any ownership 

stake in physical buildings in the Khost Justice Center compound. However, by the end of the agreement 

process the MOI agreed to provide support by using Afghan police forces to escort judges to and from the 

Khost Justice Center. 

28 The MOA was revised several times and was no longer than 3 pages in length. It was a short concise 

agreement that included each Afghan agency’s roles and responsibilities. 

29 No one ever explained the breakdown of the Kabul funding process, but the operating costs of the 

Khost Justice Center would only be a fraction of the total money given to the Afghan government. 

30 Under the MOA the Ministry of Justice (MOJ) was the overall caretaker of the Khost Justice Center. 

The MOJ was responsible for guarding the compound and had administrative responsibility over eight of 

the thirteen buildings. The Attorney General’s office was responsible for four buildings. The Supreme 

Court was responsible for the remaining two buildings. 

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submitted as an additional CERP project and was quickly processed and approved. 

Unfortunately, even with the additional water well project complete and very small operating 

costs, no trials or prosecutions have taken place at the Khost Justice Center. 

Although the Khost Justice Center remains empty, it is not for lack of a strong concept. 

Like the Quarterly CLE program, the Khost Justice Center was briefed by the brigade 

commander to the CJTF-101 commander after significant milestones were crossed. The justice 

center concept was so well received by military officials that additional justice centers were 

planned for Paktya and Paktika Provinces in AO Currahee. Likewise, the justice center concept 

was well received by representatives from the World Bank, who indicated that the justice center 

compound was similar to the idea they were independently considering. The problems with 

initiating operations at Khost Justice Center have never been attributed to the merits of the 

program; rather the problem seems to be one internal to the way funds are allocated and spent 

within the Afghan government. If those internal financing problems can be overcome, the Khost 

Justice Center concept can be tested in action. 

Failing to use the Khost Justice Center has a cost that goes beyond the wasted time and 

resources that went into building it; building the justice center and not using is likely worse than 

not building it in the first place. If, even with a safe, secure location for prosecutions, insurgents 

are still not being prosecuted, the insurgents have won. 

c) Jingle Truck Initiative 

The Jingle Truck Initiative was the smallest of the big three rule of law projects that were 

conducted during my deployment. It was a means of recouping for lost/stolen US property, 

enforcing local laws, and generating local Afghan district revenue. It was only implemented in 

Khost Province, but it had the potential to expand to others. 

Jingle trucks delivering goods (which can be broken down into two categories: fuel and 

everything else) were quickly assessed to determine if items or amounts were missing upon 

arrival to the final destination. If items were missing, the MPs were called to interview the 

driver, conduct Biometric scans, and file a report. The report included the driver’s name, the 

contract company responsible for delivering the goods, the type and amount of the missing 

item(s), and the shipment tracking number.31 The drivers were then turned over to the Afghan 

National Police (ANP) for detention and interview. Based on the MP report and the information 

obtained by the ANP, the local prosecutor decided whether to prosecute the driver before the 

local judge. If prosecuted and convicted, the driver would be fined, required to pay restitution,32 

and write an apology letter indicating he will never steal from the US government again. 

The jingle trucks were impounded on the forward operating base (FOB) until the above 

requirements were satisfied. Once they were satisfied, the driver or a contract company 

31 The shipment tracking number was essential because the shipments normally originated at Bagram 

Airfield, Afghanistan and it was used by the military and contractor representative to identify the specific 

contract responsible for delivering the goods. This was important because some contracts contained 

specific reimbursement clauses and other contracts did not. 

32 The contract company would often pay the restitution, but the driver would have to show proof of 

restitution. 

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representative returned to the FOB and provided proof of restitution, payment of the fine (if 

convicted) and the apology letter.33 

The Jingle Truck Initiative gained notoriety with many of the contract drivers guilty of 

stealing property or letting others steal the property. The guilty drivers began stopping short of 

their final destination and recruiting local and unsuspecting, villagers to drive the jingle trucks 

just a short distance onto the FOB. The local villagers were paid well for the amount of work 

they were required to conduct, but they were sure to be detained once they reached the final 

destination and in some cases required to pay a fine. We worked closely with the CTF Currahee 

Information Operations (IO) Officer to combat this growing trend. Several information operation 

campaigns were successful in informing the local villagers that driving the jingle trucks could 

result in their arrest and a possible court case against them due to the original driver’s theft. 

The Jingle Truck Initiative was in affect and was having positive effects on reducing the 

amount of stolen U.S. property, except in one area; winter fuel transport. A majority of the power 

in rural Afghanistan came from fuel powered generators. It runs the generators on the FOB, the 

generators attached to a CERP projects (in this way, the proliferation of CERP projects added to 

the generator power problem; the generators were new and operated perfectly, except for when 

they ran out of fuel) and the generators in local villages. However, fuel was expensive and hard 

to obtain for many local nationals. The insurgents could wield considerable influence with the 

local population by controlling fuel and giving it to the locals. They could also negatively 

influence the heavily fuel-dependent coalition force operations if they stole fuel and used it for 

the insurgency. 

The Jingle Truck Initiative was not revered in all coalition circles, especially as it related 

to jingle trucks transporting fuel. Impounding the fuel trucks had a predictably negative impact 

on the ability to transport fuel and became a cause for concern with the logistics unit responsible 

for moving fuel throughout Afghanistan. At one point, I had the same conversation with 6 

different people explaining the Jingle Truck Initiative process and how it should not delay fuel 

transport if the contractor quickly paid restitution and encouraged their drivers to pay the fine if 

convicted, because the local Afghan court system was fast at hearing the driver’s cases and 

making a decision. A driver detained in the morning could have his case heard and receive the 

Judge’s decision by afternoon. Eventually, the initiative was modified for fuel shipments,34 but it 

remains a valuable rule of law venture. 

d) Small Rule of Law Projects 

Several small rule of law projects were also conducted throughout AO Currahee. Six 

hundred additional Afghan Judicial Desk Sets were produced and distributed to judges and 

33 The apology letter is a cultural idea that impacts the individual by calling on their honor by promising 

to never steal again. This was another great idea made possible by my Afghan Attorney Advisor’s 

sensitivity to local Afghan culture. 

34 The logistical unit provided the shipment tracking number for all the jingle trucks under contracts 

requiring the contractor to pay restitution. If the drivers of those trucks were detained, then they would 

have to provide proof of all the requirements before the truck would be released, but if the driver was not 

detained then the truck would be released to the contractor’s representative. 

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attorneys in AO Currahee’s six provinces. The desk sets were highly coveted; the goal was to 

provide one set to every judge and attorney in AO Currahee. 

Local level CLE programs were also implemented and conducted during CTF Currahee’s 

tenure. These CLE programs took place in different districts and focused on local level legal 

issues.35 They were limited to small groups of attorneys, justice officials and corrections 

officials.36 The legal issues discussed included local level prosecutions for misdemeanor type 

offenses, evidence collection, women’s rights, and alternative dispute resolution. These programs 

also received high praise from the Afghan attendees, who indicated that they prefer being taught 

by Afghan instructors.37 

Several legal Shuras38 were also conducted during the deployment. We met with 

Provincial Judges and prosecutors, local judges and prosecutors, ANP prosecutors and civilian 

attorneys to discuss their concerns with judicial pay reform, prosecutions of insurgents, personal 

security and logistical needs for their practice of law. Several CERP projects were initiated from 

the issues discussed during these Shuras. Two projects included: providing concertina wire for an 

existing prison to deter escape and providing office supplies to Judges and attorneys to assist 

with their legal practice. The Shuras also provided a means for the provincial and local level 

judicial officials to raise concerns that were then addressed at meetings with their leaders at the 

national level.39 

One of the most notable smaller scale rule of law projects involved producing a criminal 

law manual by an Afghan Supreme Court Judge and distributing it to judicial officials in AO 

Currahee and Kabul. Three thousand copies of the manual were produced and provided to Judges 

and prosecuting attorneys. This project was not only beneficial to the Judges and attorneys who 

received a copy, but it was beneficial to CTF Currahee and all coalition forces. It continued 

building upon a great relationship with national level judicial officials and helped obtain their 

support on our larger rule of law projects.40 

4. Passing the Rule of Law Baton 

When 4BCT redeployed, the Khost Justice Center was complete and capable of 

prosecuting and imprisoning insurgents and criminals while protecting judicial officials, and 

setting an example for other Afghan Provinces. Yet, it remained unoccupied, and the plan to 

build two additional justice centers in AO Currahee remained just a plan. Countless additional 

rule of law projects listed on the whiteboard in my office when I first arrived in Afghanistan 

35 Each Afghan Province contained multiple districts similar to counties in the United States. 

36 The local CLE programs normally had 15-25 participants. 

37 Other international organizations provided training to Afghan judicial, justice and corrections officials, 

but they used US and international instructors instead of Afghan instructors. The Afghan led courses 

received high praise because the instructors were more familiar with Afghan customs and traditions in 

addition to the laws and constitution. 

38 Shura is an Arabic word for “consultation”.
 39 Many of the provincial and local level judicial officials were concerned about pay reform, 

transportation and security. We forwarded those concerns during meetings with the Afghan Supreme 

Court, Afghan Attorney General, Ministry of Justice and Ministry of Interior. 

40 We requested support from the Supreme Court on three separate projects and received their support 

each time without hesitation. 

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were still on the whiteboard without a checkmark next to them. Most importantly, Afghan 

judicial positions remained one of the lowest paying positions within the Afghan government. 

In the end, however, I did feel like the CTF Currahee rule of law program had a positive 

impact on Afghan judges, attorneys, and citizens. Many of our projects could be used as models 

for other areas in Afghanistan. We were able to creatively accomplish many projects and I 

believe we left a lasting impression on southeastern Afghanistan and advanced rule of law in AO 

Currahee. Lastly, although I miss many of the great and inspirational Afghan citizens, I feel a 

deep sense of professional satisfaction for my role in advancing rule of law in their country. 

B.	 Reconciling Security and Rule of Law While 

Coordinating US Military and Civilian Efforts* 

In the summer of 2008, Multi-National Forces-Iraq (MNF-I) and the US Embassy, Iraq 

(the Mission), conducted a periodic review of progress in achieving the goals of the Joint 

Campaign Plan (JCP) for Iraq. At that time, the JCP focused upon four lines of operation (LOO): 

security, economic, political, and diplomatic. Significant progress had been achieved in each of 

the LOOs. Of particular note, the “Awakening” (see below), the surge of US forces, and the 

increases in the Iraqi security forces (ISF) had resulted in a dramatic improvement of the security 

environment; by virtually every statistical measure, acts of violence had reached levels last seen 

in 2003. The same could not be said for the establishment of the rule of law. 

The Iraqi judiciary was legally independent of the other branches of government, but it 

was overwhelmed. The High Judicial Council recognized a need for 3,000 judges, but there were 

only approximately 1,250 in office. In addition, judicial security was a significant problem; 

dozens of judges had been assassinated since 2003. These problems led to significant backlogs of 

cases, which exacerbated the existing pre-trial detention challenges. Pre-trial detention 

conditions rarely met the most basic international standards. Conditions of over-crowding, 

inadequate hygiene facilities, and very limited medical support existed in nearly every pre-trial 

detention facility. Forcing confessions from prisoners was a well-established police practice; 

MNF-I police training teams reported scores of these cases every month supported by physical 

evidence. Official corruption was endemic, and the Government of Iraq (GOI) had not developed 

the oversight mechanisms needed to combat it. Ministry inspectors general were neither 

resourced nor empowered to act. The Board of Supreme Audit and the Commission on Integrity 

were similarly hampered. Most problematic was Article 136b of the Criminal Procedure Code, 

which gave individual ministers the authority to block the criminal prosecution of any member of 

their ministry. When the assessments were completed, the Ambassador and MNF-I Commander 

decided to make the Rule of Law a separate line of operation of the JCP. 

This was the context for USG rule of law capacity building efforts in Iraq in 2008-09. A 

review of those efforts offers insights into the tensions that can arise between competing 

*

 COL Richard Pregent deployed to Iraq from May 2008 to June 2009. During his tour, he served as the 

director of the Interagency Rule of Law Coordinating Center (IROCC) at the US Embassy and, from 

April to June 2009, as the director of the Law and Order Task Force at FOB Shield. During his first tour 

in Iraq in 2004, he served as the Deputy General Counsel for the Coalition Provisional Authority. 

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priorities in a theater where counterinsurgency and stability operations are being conducted 

simultaneously, as well as the tensions between competing models of how to achieve a unity of 

effort in the rule of law capacity building. 

1. Rule of Law, Security, and Stability 

Rule of law1 capacity-building is only one aspect of a broader national strategic goal of 

reconstruction and stabilization of “fragile, conflict-prone, and post-conflict states.”2 In a typical 

post-conflict situation, the state’s ability to keep the peace by enforcing the law has been 

compromised. Police, courts, and detention capacity may be limited or not exist at all. But just as 

important to stability operations is the state’s ability to provide for the essential needs of its 

citizenry: clean water, adequate food and shelter, a secure environment, and a functioning 

economy with legitimate employment opportunities. Rule of law plays a key role in establishing 

and maintaining stability, particularly in disciplining the actions of the state, but it is only one 

part of the good governance needed to help stabilize and rebuild a weakened state. Within DOD, 

the reconstruction and stabilization mission is described as Stability Operations.3 

Rule of law capacity-building cannot be conducted in an operational vacuum. Some 

degree of security must exist for technical advisors to focus on a state’s compliance with its own 

laws, building up a functional court system, protecting the due process rights of pre-trial 

detainees, and all the many other rule of law capacity-building missions. There are always cases 

in which security and the types of protections associated with the rule of law will come into 

tension. In those cases, senior leaders will have to make the strategic decision to improve 

security that some may criticize as compromising the principle of the rule of law. There will be 

times during an active counterinsurgency when the long-term goals of the rule of law mission 

will necessarily be a lower priority than establishing and maintaining short-term security. 

a) The Awakening 

In 2007, many of the Sunni Insurgency leadership realized that it was in their best 

interests to come to terms with Coalition Forces (CF) and the government in Iraq.4

 The 

movement, which began in Anbar Province, became known as the Awakening. As the movement 

spread, MNF-I entered into agreements with regional Awakening leaders – literally bringing 

former Sunni insurgents, the Sons of Iraq (SOI), into a contractual relationship with CF. The SOI 

were paid salaries by CF and were incorporated into CF security plans and operations. Some 

observers believe this event was a greater contributor to the improvement in security than the 

increase in combat forces commonly referred to as the Surge.5

 In late 2007, the Awakening 

1

The definition of the rule of law used by both the US Mission - Iraq (the Mission) and Multi-National 

Forces-Iraq (MNF-I) in their Joint Campaign Plan (JCP) was that contained in the Rule of Law Handbook, 

and adopted in Army doctrine in the fall of 2008. See ch. II, supra.

2

 Nina M. Serafino, Peacekeeping/Stabilization and Conflict Transitions: Background and Congressional 

Action on the Civilian Response/ Reserve Corps and other Civilian Stabilization and Reconstruction 

Capabilities 3 (Congressional Research Service Report July 23, 2009). 

3

 U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS 1–9 (Oct. 2008) 

4

 Thomas Ricks & Stephen Biddle, “The Gamble”: Did the Surge Work?, washingtonpost.com, (Feb. 9, 

2009).

5 See id. 

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movement began to bear political fruit: MNF-I negotiated an agreement with the GOI to 

incorporate a portion of the SOI into government positions, and many SOI were hired into 

positions at the Ministry of Interior and incorporated into the Iraqi Army. This partial 

“reconciliation” between the GOI and former insurgents was strategically key to improving 

security across the country; wherever these agreements were put in place, acts of violence 

decreased dramatically. Even though the agreements were effective, they were also 

extraordinarily difficult to maintain politically for both the Sunni insurgency leadership and the 

primarily Shia elected government officials. Elected leaders felt the SOI had boycotted earlier 

national elections and chosen to become terrorists while the SOI felt the elected government had 

been complicit in the vicious sectarian ethnic cleansing that had paralyzed the country since the 

Samarra Mosque bombing in February 2007. This political compromise was both strategically 

important and extremely fragile. 

As insurgents, many of the SOI had committed criminal acts before this reconciliation. In 

many cases arrest warrants had been legally issued by Iraqi judges, and these arrest warrants had 

not been withdrawn with the advent of the Awakening nor when CF – and later the GOI – 

entered into agreements with the SOI. In 2008 there were several instances of Iraqi Security 

Forces (ISF) arresting senior Sunni Awakening leaders based upon these “pre-Awakening” 

warrants. These arrests led the SOI to believe the GOI was breaking faith with their agreements, 

creating a very real risk that the security situation would backslide and the SOI would turn back 

to the insurgency. Although the arrests on their face may have been lawful, they also created the 

strategic risk of destabilizing the fragile political agreements. 

At first glance, CF and Mission leadership seemed to be placed in the position of having 

to choose between supporting the rule of law by supporting the arrest and prosecution of Sunni 

leaders for criminal acts or to discourage enforcement of the law (essentially to encourage Iraqi 

officials to ignore judicial arrest orders) in order to support a political agreement that improved 

the nation’s short-term security. In fact, there was no choice in the matter; the realities on the 

ground dictated that security be maintained and the warrants should not be executed. Given the 

circumstances in Iraq at the time, short-term security necessarily took priority over long-term 

realization of the principles underlying the rule of law. 

In the end, this compromise not only preserved the most important principles of the rule 

of law but also recognized the importance of reconciliation in post-conflict environments. 

Members of the Awakening leadership were not prosecuted for allegations of criminal acts 

related to the insurgency that preceded their agreements with CF and the GOI. Criminal 

allegations that arose for acts committed after these agreements, however, did result in arrests 

and prosecutions. This political resolution was not formally approved by the Iraqi Parliament; the 

Executive Branch simply did not execute the legally valid arrest warrants issued by the courts. In 

principle, this undercut the rule of law in Iraq. In reality, it made it possible for the SOI to begin 

a reconciliation process with the GOI and improved security nation-wide. The improved security 

environment made it possible for the GOI, USG, and the international community to expand their 

reconstruction efforts, to include trying to establish the rule of law. Ultimately, the leadership 

realized that rule of law capacity-building must not block political accommodations between 

disputing factions that make stability possible. 

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b) UNSCR Detainees 

Another example of the tension between rule of law capacity-building and maintaining 

security was the disposition of individuals detained by CF under the authority of the UN Security 

Council resolution (“legacy detainees”) after the expiration of the resolution on 31 December 

2008 and the implementation of the US/Iraq Security Agreement (SA).6

 On 1 January 2009, 

when the SA came into effect, US Forces held in excess of 15,000 security detainees that the US 

no longer had the authority to detain.7

 The challenge was to devise a process that complied with 

the SA in a way that supported the establishment of the rule of law without undercutting security. 

The end result was a qualified success. 

Under the SA, detainees had to either be prosecuted pursuant to Iraqi criminal law or they 

had to be released. At the time, nearly 2,000 detainees held by CF under the authority of the 

UNSCR were in some stage of criminal prosecution in an Iraqi court, and those detainees could 

be transferred into the Iraqi pre-trial detention system as space became available. Both the GOI 

and CF were concerned that releasing the remaining thousands of detainees at one time could not 

be done “in a safe and orderly manner.” It would put the hard-earned security improvements at 

risk. CFs established a review and release plan for the remaining legacy detainees. Lists of 

detainees were given to the GOI each month together with releasable information that supported 

each detention. Frequently, the classified nature of most of the information meant that very 

limited information was provided, most disclosures consisted of only a conclusory statement that 

the detainee was involved in supporting the insurgency. The GOI, in turn, either acceded to the 

releases or provided warrants for the arrests of the detainees. To the surprise of many, the GOI 

began to produce hundreds of warrants for detainees CF intended to release. It quickly became 

evident that the GOI was not issuing warrants as the result of an independent assessment of 

evidence pursuant to Iraqi criminal and constitutional law but rather simply to transfer detainees 

taken and held under the UNSCR from US custody into Iraqi pre-trial detention. 

It was felt by many within the GOI leadership as well as US forces leadership that the 

legacy detainees MNF-I held were security threats and if released would destabilize the country. 

As far as many CF leaders were concerned, the more warrants issued the better. Because a 

warrant enabled CF to transfer the detainees into the Iraqi criminal justice system rather than 

release the detainees into Iraqi society, many US military leaders welcomed the flood of Iraqi 

6

 Agreement Between the United States and the Republic of Iraq On the Withdrawal of United States 

Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, (Nov. 

17, 2008), available at http://www.mnf-iraq.com/images/CGs_Messages/security_agreement.pdf (last 

visited Aug. 14, 2009). 

7

 Article 22 of the Security Agreement states: 

Upon entry into force of this Agreement, the United States Forces shall provide to the 

Government of Iraq available information on all detainees who are being held by them. 

Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by 

them. The United States Forces shall act in full and effective coordination with the 

Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities 

pursuant to a valid Iraqi arrest warrant and shall release all remaining detainees in a safe 

and orderly manner, unless otherwise requested by the Government of Iraq and in 

accordance with Article 4 of this Agreement.. 

Id. art. 22. 

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warrants as a good thing rather than a violation of the principles underlying the rule of law. As a 

result, US forces made no effort to encourage the GOI to limit warrants to those cases that were 

in fact supported by evidence. Keeping detainees off the streets was deemed more important than 

ensuring that their deprivation of liberty was done in accordance with the law. The result was to 

move even more pre-trial detainees into a criminal justice system that was already glutted and 

dysfunctional. 

One of the many organizations that worked closely with Iraqi officials to help establish 

the rule of law, the Law and Order Task Force (LAOTF), had studied the detainee population 

records at Rusafa Prison, Iraq’s largest detention facility.8

 LAOTF’s study showed that over 20% 

of the prison population had been arrested by the Iraqi Army and no action had been taken on 

their cases since their detention order. Over 500 of these detainees had been in pre-trial 

confinement over a year without any action taken on their case; over 290 of these had been in 

pre-trial confinement for over two years with no action taken. This research project highlighted 

violations of Iraqi law and a significant cause of the constant overcrowding and inhumane 

conditions for the detainees. The US was quick to bring this to the attention of the Minister of 

Justice for corrective action. 

Despite this information, US detention leaders chose to continue to equate warrants with 

success. It remains to be seen whether the USG detention leaders have created a longer term 

strategic risk by taking advantage of the GOI’s eagerness to continue to hold CF detainees and 

accepting these mass-produced warrants unchallenged. The rule of law, efforts at reconciliation, 

and the cause of de-radicalizing the SOI may eventually suffer as a result of this perceived shortterm security gain. The least that can be said is that this was a lost opportunity to show the 

executive branch of the GOI that it must comply with its own laws. 

2.	 The Civil/Military Tension in Rule of Law Capacity Building: Establishment of the 

IROCC 

The persons tasked to lead the LOOs were the senior officers responsible for the USG 

efforts in those areas: the MNF-I Deputy Commanding General for Operations for the Security 

LOO, and the Mission’s senior Political, Economic, and Diplomatic officers for those LOOs. 

The lead for the Rule of Law LOO was shared by the Mission’s civilian Rule of Law 

Coordinator (ROLC) and the MNF-I Staff Judge Advocate (SJA). This was a reflection of both 

the realities on the ground and the manner in which the US had conducted operations in Iraq 

since the invasion. While the Ambassador was the senior representative of the United States, 

there was an overwhelming military presence in Iraq. In August 2008 there were over 160,000 

Coalition Forces in Iraq with nearly as many contractors supporting the military presence. These 

military and civilian assets were spread across the country. The number of Mission personnel 

and contractors was a small fraction by comparison, and most were concentrated in Baghdad. 

The organization of the US capacity-building effort in Iraq reflects how DOD Stability 

Operations Doctrine tries to reconcile two conflicting understandings: that reconstruction and 

stabilization efforts are best conducted and led by civilians and that military personnel will 

8 See generally Processing Detainees in Rusafa in THE RULE OF LAW HANDBOOK: A PRACTITIONERS 

GUIDE 280-83 (Center for Law and Military Operations 2008 ed.). 

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oftentimes be the only assets available to perform these tasks.9 This conflict has at times defined 

the USG’s ad hoc reconstruction and stabilization efforts in Iraq since the invasion, as 

demonstrated by the development of the Interagency Rule of Law Coordinating Center (IROCC). 

In order to understand the IROCC, some background on the organization of rule of law efforts in 

Iraq is helpful. 

a) Civilian-Led Rule of Law Capacity-Building Assets 

The ROLC at the Mission was a senior executive service officer seconded from the DOJ. 

Rule of law capacity building was only part of his responsibilities; both DOJ and the Mission 

looked to that person to oversee all USG justice activity in Iraq, basically serving the role of 

legal attaché as well as ROLC. In August 2008, the number of personnel under the ROLC’s 

technical supervision included personnel from the US Marshals Service, the Federal Bureau of 

Investigation, and Homeland Security, but few of these assets were in Iraq primarily to support 

the rule of law capacity building mission. ROLC personnel dedicated to the rule of law mission 

included full-time liaisons to the Ministry of Justice (MOJ), Ministry of the Interior (MOI), and 

the Iraqi High Tribunal (IHT) and, on the US side, to the Bureau of International Narcotics and 

Law Enforcement (INL) office, the International Criminal Investigative Training Assistance 

Program (ICITAP) office, the ROLC deputy, and one action officer. There were also resident 

legal advisors (RLA) located at most of the Provincial Reconstruction Teams (PRTs). The 

numbers and sizes of PRT offices fluctuated frequently but in the summer of 2008 there were 

about 26 PRTS spread across the country. The PRTs and their RLAs fell under the authority of 

the Chief of the Office of Provincial Reconstruction (OPA) and not the ROLC. 

The ROLC MOJ and MOI liaisons had limited impact. The capacity building mission for 

MOI rested with MNF-I.10 Thus, the Mission’s liaison was an observer of events within the 

Ministry and had developed a network within the Ministry to arrange key leader engagements. 

This was an important function but did not make a critical contribution to rule of law capacity 

building. The MOJ liaison similarly met with limited success, largely because, in the summer of 

2008, the Acting Minister of Justice who had been in place for nearly a year refused to cooperate 

with either CF or the Mission. This continued until early 2009, when a new Minister was 

appointed. The IHT liaison office was known as the Regime Crimes Liaison Office from 2003 to 

2007 and provided significant amounts of technical assistance to the IHT. By 2008 the IHT had 

matured and required less support; the liaison’s role was limited to observing court activities and 

coordinating assistance when needed. The bulk of the rule of law capacity building contributions 

by the ROLC were made by ICITAP, INL, and the RLAs at the PRTs. 

ICITAP’s role was to provide technical assistance to the GOI to improve the quality of 

correctional facilities and the professionalism of the Iraqi Corrections Service. ICITAP had been 

9

 U.S. DEP’T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION 

AND RECONSTRUCTION (SSTR) OPERATIONS, para. 4.3 (28 Nov. 2005); JOINT CHIEFS OF STAFF, JOINT 

PUB. 3-0, JOINT OPERATIONS V-24 (Sept. 2006) (“US military forces should be prepared to lead the 

activities necessary to [secure and safeguard the populace, reestablishing civil law and order, protect or 

rebuild key infrastructure, and restore public services] when indigenous civil, USG, multinational or 

international capacity does not exist or is incapable of assuming responsibility.”). 

10 In the summer of 2009, an assessment was conducted to determine how this might be shifted to the 

Mission but, to date, providing technical assistance to the MOI remains with the military. 

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present in Iraq since 2003 and helped the GOI make enormous strides in its correctional system. 

In 2008, it had a senior corrections professional in the ROLC managing over 80 contractors 

divided into teams and spread across 11 prisons and 6 detention facilities. Although ICITAP’s 

focus was on post-trial detention facilities, it maintained a presence in some pre-trial facilities. 

ICITAP worked closely with MNF-I’s Task Force 134 to train Iraqi Corrections Officers and 

help the GOI institutionalize this training capacity. The ICITAP contractors were the USG’s eyes 

and ears into Iraqi corrections facilities. ICITAP was greatly responsible for the fact that, by 

2008, MOJ-run facilities usually met international standards and rarely generated allegations of 

detainee abuse.11 

The RLAs focused upon rule of law capacity building at the provincial level and below. 

As mentioned above, they were part of the PRTs and therefore fell under the authority of the 

Embassy’s Office of Provincial Reconstruction, not the ROLC. The PRTs had the broader 

reconstruction and stabilization goals of supporting good governance by improving the local 

government’s ability to provide essential services, employment and educational opportunities, 

and health services, as well as increasing the transparency of government to battle corruption. 

The RLAs focused upon the rule of law aspect of reconstruction and stabilization, tailoring their 

efforts to the needs of a given region. The RLAs frequently served in austere and dangerous 

environments and relied on MNF-I assets for security and movement support. Several RLAs 

were retired military lawyers or assistant US attorneys on detail and served for at least a year. 

Although the INL office had no rule of law capacity building practitioners in Iraq, it was 

the funding source for the civilian rule of law capacity building efforts and managed related 

contracts. For example, INL funded ICITAP, most of the RLAs, Iraqi Judicial and Law 

Enforcement Assistance Programs, various information technology initiatives, and the 

construction of five prisons. INL also managed a $400 million contract for the DOD to provide 

over 750 police and border advisors. The ROLC had no authority over the director of the INL 

office, which created significant problems for the Mission’s rule of law capacity building efforts. 

Frequently, the INL office would act independently without coordinating its actions with the 

ROLC. At other times, the INL office would disagree with the rule of law priorities set by the 

ROLC and refuse to fund them. To some extent, the tension between these offices reflected the 

greater tension between the Departments of Justice and State. The DOS lacked subject matter 

expertise in rule of law capacity building and turned to DOJ for this support. Yet DoS refused to 

give DOJ officers authority over the funding of rule of law capacity building. This fundamental 

gap between DOS capabilities and responsibilities is at the heart of USG failings in 

reconstruction and stabilization efforts. 

b) Military-Led Rule of Law Capacity-Building Assets 

The US military in Iraq applied extraordinary assets to the stabilization and 

reconstruction mission, including rule of law capacity building. In 2004, then Major General 

Patreus built the Multi-National Security Transition Command–Iraq (MNSTC-I), consolidating 

Mission-led and military-led efforts to provide technical assistance to the GOI in rebuilding the 

Ministries of Defense and Interior as well as the Iraqi military and police forces. MNSTC-I 

11 Conditions in pre-trial detention facilities were appalling, but those facilities were run by the MOI and 

not supported by ICITAP. 

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assisted both the MOI and MOD in developing codes of conduct and establishing open and 

transparent internal court systems to discipline their forces. Dozens of MNSTC-I advisors and 

contractors worked within the ministries to institutionalize oversight mechanisms (inspectors 

general and human rights offices) and at the training bases to assist in establishing training 

standards and “train the trainer” programs that included respect for basic human rights and the 

rule of law. MNSTC-I also trained CF training teams that were then assigned to the field 

commanders within Multi-National Corps Iraq (MNC-I), MNF-I’s subordinate, operational 

command. 

In 2008, MNC-I had 120 Military Training Teams, 35 National Police Training Teams, 

and 244 Police Training Teams operating in Iraq. These teams were partnered with Iraqi units 

and worked with them on a daily basis to provide technical assistance in conducting operations 

and professionalizing the forces. MNC-I required each subordinate command to inspect all Iraqi 

detention facilities within their area of responsibility every quarter, and training teams were often 

used to conduct these assessments. Monthly reports were provided to the MNC-I Provost 

Marshal and proved an invaluable tool to identify the areas with the most significant problems. 

MNC-I also had a contract for law enforcement support in addition to the $400 million dollar 

contract managed by INL referred to above. About 150 civilian law enforcement professionals 

(LEPs) were provided under this contract and were distributed down to the battalion level to 

work with the police training teams and partnered Iraqi units. In 2008, MNC-I had over 200 JAs 

and paralegals serving within MNC-I; many of them worked with the PRT RLAs and local Iraqi 

judicial and law enforcement officers on various rule of law capacity building projects. 

Task Force 134 (TF 134) was created in 2004 to manage detention operations for CFs. 

Although the TF’s principal mission was running detention facilities at Camps Cropper and 

Bucca, which housed thousands of security detainees, it also made significant contributions to 

rule of law capacity building. The TF 134 legal office was staffed with dozens of attorneys 

whose mission was to support the prosecution of security detainees in the Central Criminal Court 

of Iraq (CCCI). Although this effort was intended primarily to prosecute and punish those who 

attacked CFs, it had the added benefit of improving the efficiency and professionalism of one of 

Iraq’s largest criminal courts.12 TF 134 also conducted inspections of Iraqi prison facilities to 

ensure that the facilities met basic standards before transferring detainees that were charged with 

or convicted of committing offenses under Iraq law. In addition, TF 134 trained Iraqi Corrections 

Officers (ICO) and integrated them into the guard force rotations at Camps Cropper and Bucca, 

providing carefully supervised job training. In 2009, TF 134 initiated and oversaw, in 

coordination with ICITAP, the construction of a multi-million dollar training center near Camp 

Cropper. This effort included the development of programs of instruction and training Iraqi 

trainers. Despite the downsizing of MNF-I, TF 134 also built a capability to field nine 

corrections assistance transition teams. Much like the police training teams described above, 

these teams travel to Iraqi detention facilities ICITAP cannot support and provide technical 

assistance to the Iraqi guard force and facility managers. 

MNF-I also created the LAOTF in 2008. It was intended to help build “Iraqi capacity for 

independent, evidence based, and transparent investigation and trial of major and other crimes 

12 TF 134 supported prosecutions maintained about a 50% conviction rate while the rest of Iraqi criminal 

courts conviction rate hovered around 10%. 

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before the Central Criminal Court of Iraq (CCCI).”13 LAOTF was located at Forward Operating 

Base Shield near Iraq’s largest detention facility, Rusafa Prison, and the Rusafa Criminal Courts. 

Rusafa prison was Iraq’s largest14 and included both sentenced prisoners and pre-trial detainees. 

Although the conditions were better than most Iraqi pre-trial detention facilities, it was 

notoriously overcrowded. The detention facility was poorly managed; corruption and sectarian 

bias were rampant. ICITAP’s efforts were frequently frustrated by the inertia of the Rusafa 

Criminal Courts. In August 2008, the courts were so slow that it would take three years to retire 

the backlog of cases. Thousands of pre-trial detainees languished awaiting trial. LAOTF’s 

mission was to improve the Rusafa Criminal Court’s throughput. 

LAOTF was initially staffed with US military lawyers and criminal investigators from 

Australia, the United Kingdom, and the US military. It was intended that the criminal 

investigators would be paired with Iraqi criminal investigators to improve the quality and 

efficiency of their investigations. The military lawyers were titled “mentors” for the Iraqi 

investigative and trial judges.15 LAOTF also established Iraq’s first defense clinic near the 

prison. The clinic was run by an experienced senior DOJ civilian attorney and a JA. It was 

comprised of about 20 Iraq defense counsel who were “mentored” on how to provide support to 

Rusafa detainees. In the inquisitorial system in Iraq, there is a very limited role for defense 

counsel. Most western trained attorneys found it difficult to accept that the investigative judge 

served the role of prosecutor, defense counsel, as well as independent judge.16 The goal of the 

Defense Clinic was not to change Iraqi criminal law or practice but a more modest one of 

providing detainees with advocates who might be able to move their cases through the 

investigative process more quickly. 

LAOTF also assumed a role in coordinating Iraqi judicial support to military operations 

after the expiration of UNSCR 1790. As the expiration approached, MNF-I conventional forces 

began to conduct all operations “by, through, and with” their Iraqi counterparts. These operations 

were based upon warrants issued by Iraqi criminal courts. LAOTF worked closely with the units 

and CCC-I court judges to assist in the presentation of evidence supporting the issuance of 

warrants and the follow on prosecution of those cases. This support helped to some degree in 

disciplining the operations of the Iraqi security forces, which were not used to conducting 

counterinsurgency operations with a goal of criminally prosecuting the detainees, an important 

rule of law goal. 

13 MNF-I Commander’s Memo 

14 The Rusafa Prison population fluctuated between 6,000 and 7,000, about 20% of all detainees held by 

the GOI. 

15 None of these military lawyers could speak Arabic nor were they experienced or schooled in Iraqi law, 

rendering the title “mentor” presumptuous. Accepting this criticism, the JAs assigned to these duties 

normally established close ties with the Iraqi judges who took pride in teaching the US lawyers about 

their legal system and traditions. The JAs also shared with the Iraqi jurists US legal practices and 

traditions. The end results included small improvements in judicial efficiency and work ethics. Like so 

many areas within rule of law capacity building, however, these incremental improvements are nearly 

impossible to measure. 

16 Of particular note is the lack of a right to be warned against self-incrimination. For a detailed analysis 

of the issue and the “corrective” action taken during the occupation by the Coalition Provisional 

Authority see Dan E. Stigall, Comparative Law and State-Building: The “Organic Minimalist” Approach 

to Legal Reconstruction, 29 LOY. L.A. INT’L & COMP. L. REV. 1, 30-31 (2007). 

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c) The Interagency Rule of Law Coordinating Center 

As the importance of rule of law capacity-building was being recognized by the Mission 

and MNF-I leadership by making it a separate line of operation in the JCP, the ROLC and MNFI Staff Judge Advocate recognized that the many separate efforts taking place were being 

conducted by separate commands and agencies; there was no unity of command. To achieve a 

unity of effort, they decided to create the Interagency Rule of Law Coordinating Center 

(IROCC). The IROCC was intended to coordinate and synchronize rule of law capacity building. 

In military parlance, it would serve the role of a fusion cell. 

The concept of the IROCC was initially opposed by the senior DOS leadership in the 

Mission, a result of the well-established institutional concern about the “militarization of 

diplomacy.” Only after repeated assurance that the IROCC would have no tasking authority over 

any DOS assets and would operate under the ROLC and MNF-I SJA supervision did the Mission 

relent. 

The concept was that the IROCC would be staffed with action officers from the ROLC 

office and the MNF-I SJA’s ROL office. Those officers would continue to work rule of law 

issues but do so together in one office ensuring that all would have a broad situational awareness, 

redundancies would be avoided, and synergies achieved. The IROCC would be led by an Army 

JA colonel working for both the ROLC and the MNF-I SJA. When the draft fragmentary order 

(FRAGO) was initially staffed, the civilians within the ROLC office who would be working 

within the IROCC objected. These were DOJ employees who balked at working within an 

organization led by a military officer. Once again, it was necessary to reiterate that the IROCC 

was a coordinating body and had no tasking authority over DOS or DOJ personnel. 

Once the FRAGO was issued by the MNF-I Commander,17 the military entities involved 

in rule of law capacity building (MNC-I, MNSTC-I, TF 134, and LAOTF) immediately engaged 

in the coordination process led by the IROCC. Mission representatives (ROLC, OPA, ICITAP, 

MOJ and MOI liaisons, INL, Baghdad PRT RLAs) also participated. At the action officer level, 

it was quickly discovered that the IROCC was a useful (and non-threatening) coordinating body. 

Weekly video-teleconferences were held with all rule of law capacity builders at the operational 

level and above. 

Initially the IROCC focused on Iraqi detention facility inspections. A central database, 

accessible to all rule of law capacity builders, was developed for inspection reports, as was a 

central inspection/ assessment calendar to de-conflict the oversight process. MNSTC-I advisors 

to the Ministry of Defense Human Rights Office and Ministry of Interior Inspector General 

offices were able to better coordinate logistical support for Iraqi inspections of their own 

facilities. MNC-I was able to more quickly provide reports of inspections and serious incident 

reports to the MNSTC-I liaison officers to ensure inspection reports were not stale and could be 

investigated by the Iraqis. The results of all inspections were more efficiently and broadly shared 

across the inspecting community. Significant incidents or particularly bad conditions could be 

quickly brought to the attention of both the Mission and MNF-I leadership. The IROCC process 

supported a “targeting” process for key leader engagements. 

17 Copy on file with Center for Law and Military Operations. 

283 Chapter X - Narratives 
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The IROCC became the established mechanism for rule of law capacity builders to 

coordinate and deconflict their efforts. During the weekly meetings, rule of law capacity building 

initiatives were presented ranging from real property dispute resolution to coupons for access to 

legal representation for the indigent. For example, the IROCC held a separate forensics forum, 

gathering subject matter experts from MNSTC-I, MNC-I, ROLC, MNF-I, LAOTF, TF 134, and 

the UK Mission, to discuss initiatives to help the Iraqis develop a forensic capability within its 

Ministry of Interior and courts. It was quickly discovered that there were overlapping efforts and 

opportunities that had not been identified earlier. The forum helped the leadership dispel the 

enduring myth that the Iraqi courts would not accept forensic evidence and to focus efforts on the 

weakest link in the forensic arena: police training. The IROCC also held an IT forum during 

which it gathered all those who were working on developing databases or information 

management systems for the Iraqis (TF 134, LAOTF, INL, MNC-I). The goal was to achieve 

compatibility and avoid creating a series of separate, unique, and incompatible information 

management systems. 

The International Committee for the Red Cross attended several IROCC meetings as did 

the UK Mission legal advisors. After 6 months, the IROCC attempted to engage with the 

international community to coordinate rule of law capacity building efforts there as well. The 

Mission leadership objected, arguing that relations with international actors was the exclusive 

province of the DOS and the ROLC office. To date, there is no organization comparable to the 

IROCC within the international community in Iraq. 

Despite the bureaucratic hesitation, the IROCC proved to be a useful coordinating 

mechanism. It remains to be seen whether the various agencies involved in reconstruction and 

stabilization operations in the future will embrace the concept of a fusion cell in the field. 

3. State Department Leadership in Reconstruction and Stabilization 

With very limited exceptions, virtually all of the USG rule of law practitioners currently 

working in Iraq are military, DOJ, or contractor personnel. Although INL and USAID administer 

many large rule of law-related contracts, neither organization has a DOS rule of law subject 

matter expert serving in Iraq. It is particularly noteworthy that the Mission’s Rule of Law 

Coordinator is seconded to the mission from DOJ. In Iraq, the State Department outsources the 

management of rule of law capacity building and contracts out all reconstruction and 

stabilization efforts. It is unclear whether either DOS or USAID has the subject matter expertise 

on staff to manage these contracts. 

Although it is widely accepted, including in Army doctrine, that civilians should lead 

reconstruction efforts, including rule of law capacity building efforts, that ideal has not been 

realized in Iraq. Treating civilian agencies as the optimal lead places military commanders in the 

position of having to plan for the inability of another governmental agency to accomplish its 

mission. The consequences in Iraq have been stark. It remains to be seen what lessons the 

civilian/military relationship in Iraq will provide for future conflicts. 

4. Conclusion 

Rule of law operations are necessarily complex and, at times, tension-filled. Some of 

those tensions reflect conflicts between values like judicial process and the need for security. The 

response to those tensions has been imperfect, but it is undeniable that the security situation in 

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Iraq is vastly improved. Whether that security has been bought at too high a price remains to be 

seen. 

Rule of law capacity building also creates tensions among those charged with carrying it 

out. The USG’s rule of law capacity building efforts in Iraq have been and continue to be 

extensive in terms of both manpower and funding. These efforts have been well intentioned and 

in many areas have accomplished a great deal. The USG rule of law capacity building 

community in Iraq, however, lacks unity of command and often unity of effort. This is a result of 

DOS’s lack of capacity and willingness to assume its leadership role. The DOS institutional 

concern over the “militarization of diplomacy” focuses upon DOD’s intrusion into what DOS 

believes is its area of responsibility. It fails to recognize, however, that DOD is filling a void that 

would otherwise remain empty. 

C.	 Rule of Law in Afghanistan: A View from the Top* 

My tour as the Senior Legal Advisor for Rule of Law in Afghanistan proved to be an 

exciting and challenging assignment in a unique operating environment. The position I occupied 

did not exist prior to my deployment; but the senior JAG Corps leadership, attuned to the 

changing national priorities, foresaw the imminent increased emphasis of the Afghan theater of 

operations and determined the need to establish the position. The idea was to place a JA in the 

office of the Rule of Law Coordinator (ROLC) coordinator who could help integrate civilian and 

military rule of law efforts. After many moves, the position is now a permanent one within U.S. 

Forces-Afghanistan. 

1.	 Differing Institutional Cultures in USG Agencies and the Role of the Rule of Law 

Coordinator 

Another reason for establishing the position was to help close a perceived gap between 

the Department of State and Department of Defense . A disconnect between those agencies had 

contributed to the souring of working relationships between the Embassy staff and certain parts 

of the US military in Afghanistan. 

This disconnect can be partly attributed to the different organizational cultures of DOS 

and DOS. Those differences have been frequently experienced and commented upon by those 

who have worked in interagency assignments. A prime example of friction was in the area of 

planning. Military servicemembers are accustomed to working from an operations order that 

establishes the commander’s intent, assigns specified and implied tasks to subordinate units, and 

allows for flexibility as to how these tasks are accomplished. The US strategy for Afghanistan, as 

approved by the National Security Council in July 2008, had designated DOS as lead agency for 

rule of law development. From the Embassy staff’s perspective, this meant that the military was 

under an obligation to inform and clear actions with the Embassy prior to carrying them out. 

From the perspective of the military servicemembers involved in rule of law development, there 

was an expectation that DOS would provide guidance as to what tasks would have to be executed 

under the framework of a greater plan. Unfortunately, this greater plan did not exist. 

*

 LTC Dean Vlahopoulos served as Senior Legal Advisor for Rule of Law at the US Embassy 

Afghanistan from May 2008 to May 2009. 

285 Chapter X - Narratives 
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The office of the ROLC is an office that does not normally exist in US embassies. It 

exists in the US embassies in Afghanistan and Iraq to assist in the coordination of rule of law 

development in these war-torn societies. When I arrived in Kabul the ROLC office was manned 

by a dedicated and hardworking individual serving his third consecutive year in Afghanistan. 

Although serving in a DOS position, he was employed not by DOS but by DOJ. Originally a 

federal prosecutor, he had only limited experience and training applicable to managing and 

supervising the legal reconstruction of an entire nation. To make things worse, his office was 

severely undermanned. Until my arrival, it consisted of himself, his Afghan secretary, and 

occasional short-term DOS augmentees. During my deployment, DOS assigned an additional 

career Foreign Service Officer to the office for a year-long tour . 

The breadth of the responsibilities of the ROLC made actual planning impossible. The 

ROLC served as the Ambassador’s point person on all legal matters. He was the face of the 

United States on all international meetings involving legal matters and the principle point of 

contact with the Afghan justice sector officials. The time requirements of those tasks eliminated 

the possibility of any time for strategic planning, even by the most dedicated and bestintentioned individual. Moreover, ROLC had very limited powers. I would often joke with him 

that the ROLC had no rule of law budget, runs no rule of law programs, and does not evaluate 

any of the rule of law personnel. In terms of what constitutes power within the federal 

bureaucracy, he had none. His only power was that he spoke on behalf of the Ambassador on 

rule of law issues. 

2. The State of Development Efforts in Afghanistan 

The challenges facing rule of law in Afghanistan are formidable. Afghanistan is a nation 

that has suffered thirty years of consecutive conflict; it is an Islamic, multi-ethnic, tribal and 

decentralized society. The human capacity of Afghanistan is very low. It lacks an educated 

middle class to run the machinery of government; many of the educated have either been killed 

or have fled. 

Development efforts have been halting and inadequate. After the 9-11 terrorist attacks on 

the United States and the subsequent liberation of Afghanistan from Taliban rule in December 

2001, the international community held the Bonn Conference to agree on how to govern the 

country. The development efforts organized pursuant to the Bonn framework have suffered from 

a lack of resources and unity of effort. The events that led to the liberation of Iraq from Ba’athist 

rule focused the attention of the United States and the international community away from 

Afghanistan. For US policy makers, in regards to personnel and funding priorities, Afghanistan 

was clearly a secondary effort. 

In an effort to reinvigorate what was obviously the lagging success of the international 

community’s’ rule of law efforts in Afghanistan, a subsequent conference was held in Dubai, 

United Arab Emirates in December 2006. The timing of this new effort was closely tied to the 

Government of Afghanistan’s own establishment of the Afghan National Development Strategy 

(ANDS) framework, a clear Afghan commitment to justice sector reform, and a growing 

international interest in improving justice sector assistance to meet the needs of the Afghan 

people. This was followed by the July 2007, Rome conference that further defined rule of law 

goals and resulted in an additional $98 million in pledges earmarked for rule of law 

development. Finally, a June 2008 conference in Paris reaffirmed the importance of rule of law 

in Afghanistan and further increased the pledges by the donor nations. 

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International development efforts in Afghanistan are spearheaded by the United Nations 

Assistance Mission in Afghanistan (UNAMA), which was established on 28 March, 2002 by UN 

Security Council Resolution 1401. Its original mandate was to support the Bonn Agreement. 

Reviewed annually, this mandate has been altered over time to reflect the needs of the country 

and was recently extended until 23 March 2010 by UN Security Council Resolution 1746. 

UNAMA’s mandate currently has the following elements: providing political and strategic 

advice for the peace process; providing good offices, helping the government to implement the 

Afghanistan Compact, assisting with the Afghanistan National Development Strategy and the 

National Drugs Control Strategy, promoting human rights; providing technical assistance, ; and 

continuing to manage and coordinate all UN-led humanitarian relief, recovery, reconstruction 

and development activates in Afghanistan. These elements of the UNAMA mandate were 

endorsed by the UN Security Council in Resolution 1662. The international conferences are 

important because they provide guidance and direction from the donor nations (including the 

United States) as to the development framework the international community is attempting to 

establish in Afghanistan. 

3. The View of the International Development Effort From the Ground in Kabul 

For practical purposes, what mattered was that the Afghan National Development 

Strategy (ANDS) approved in July 2008, established three overarching objectives for the rule of 

law development in Afghanistan: establish improved institutional capacity to deliver sustainable 

justice services; establish improved coordination and integration within the justice system and 

other state institutions; and improved quality of justice services. These objectives were further 

refined in the National Justice Sector Strategy (NJSS) which finally generated the National 

Justice Plan (NJP). This is the key document regarding all rule of law development efforts in 

Afghanistan because it establishes specific rule of law objectives in six areas: accountable 

institutions; infrastructure; human capacity; legal framework; integrated justice; and citizen 

rights awareness. The NJP is in theory an Afghan government plan; the Afghan government 

maintains responsibility for its implementation. 

It is important to understand that the US government is a significant, but not the only 

entity implementing rule of law programs in Afghanistan. Our efforts are loosely nested under 

the UNAMA umbrella and complemented by the efforts of other donor countries (UK, Canada, 

Italy, the Netherlands, Germany, and others) and organizations such as the International Security 

Assistance Force (ISAF), the United Nations office for Drugs and Crime (UNODC), the 

European Police mission in Afghanistan (EUPOL) and the World Bank. Simply going by the 

commitment of financial resources and manpower, though, the United States was definitely the 

most important single contributor for rule of law development in Afghanistan. 

4. The US Rule of Law Effort in Afghanistan 

The U.S efforts to implement rule of law in Afghanistan were a joint civilian-military 

effort. Five major separate US agencies had rule of law development programs, with separate 

streams of funding and assigned personnel. The three main civilian agencies were: DOS Bureau 

of International Narcotics and Law Enforcement (INL), the United States Agency for 

International Development (USAID), and the Department of Justice. The military had two main 

implementers: Combined Joint Task Force-101 (CJTF-101) and the Combined Security 

Transition Command-Afghanistan (CSTC-A). 

287 Chapter X - Narratives 
 

Rule of Law Handbook 

INL was by far the single greatest US contributor in terms of assets committed to Afghan 

rule of law reconstruction. INL was responsible for the administration of two major U.S. 

programs: First, INL ran the Justice Sector Support Program (JSSP), which provided direct 

support to the Afghan Attorney General’s Office, supported the Afghan Ministry of Justice with 

embedded mentors, and provided additional advisors to the Afghan legal aid and defense 

attorney support programs. Second, INL had a regional training program for justice officials and 

supported the Independent National Legal Training Center, a training facility tasked to provide 

common baseline training for all Afghan legal professionals entering public service. INL also 

administered the Corrections Sector Support Program (CSSP) which was responsible for 

corrections infrastructure development, a corrections training program, and direct support to the 

Afghan Central Prisons Directorate (CPD). The majority of deployed INL personnel were 

contractors. 

USAID provided direct support to the Afghan Supreme Court, provided support to 

legislative drafting for the Afghan government, published and distributed a wide variety of legal 

reference materials, provided support to legal outreach and efforts to better understand the 

Afghan informal (tribal) justice system, and provided support to legal aid efforts. The USAID 

efforts were managed by government employees but the implementation was similarly 

accomplished by contractors. 

DOJ was tasked to create and mentor the Afghan Counternarcotics Justice Task Force 

(CnJTF). The CnJTF was a special counternarcotics entity within the Afghan government and 

the only court of special jurisdiction in Afghanistan. It was designed to litigate drug cases 

involving quantities above a certain threshold. The task force was mentored round-the-clock by a 

DOJ team of experienced federal prosecutors and was able to create a cadre of trusted Afghan 

judges and prosecutors that could pass a US-administered polygraph. This Afghan team was 

compensated significantly in excess of regular Afghan salaries, which provided an incentive to 

remain free of the corruption frequently associated with narcotics law enforcement. The CnJTF 

was considered the best trained and least corrupt judicial body within the Afghan government. 

One judge paid with his life for upholding this standard. DOJ also spearheaded additional efforts 

in anti-corruption and was considering programs involving the United States Marshals Service to 

enhance judicial security. 

The Combined Security Transition Command-Afghanistan’s (CSTC-A) primary mission 

in the rule of law arena was to administer the Focused District Development program (FDD). 

This program was a detailed, district-by-district training program for the Afghan National Police 

(ANP). The ANP, as an organization, seemed woefully unprepared to assume law enforcement 

duties across the nation, and even less prepared to stand as a co-equal partner with the Afghan 

National Army (ANA) in the counterinsurgency fight. Despite less than adequate training, the 

ANP was the most frequent target of the Taliban since they often manned static checkpoints and 

represented the power of the central government in many remote areas. The ANP suffered from 

low morale and low pay, and was perceived by the Afghan public as a very corrupt institution. 

CSTC-A was also involved in assisting the preparation of police legislation, facilitating policeprosecutor interaction, developing of military justice for the ANA, and assisting in the transfer of 

detainees from US custody for prosecution by the Afghan courts. 

While police mentoring programs technically fell outside the purview of rule of law, the 

general consensus was that, unless the police and prosecutor mentoring were working in tandem, 

there would be no long term progress in rule of law development. An obvious problem was that 

Chapter X - Narratives 288 
Rule of Law Handbook 

the ANP was currently being trained and utilized as a fighting gendarmerie participating a tough 

counterinsurgency conflict. Under the conditions prevalent at the time, traditional law 

enforcement training came second. 

The final US implementer in the rule of law arena was CJTF-101. Headquartered out of 

Bagram Airfield, the CJTF fielded four separated brigade-sized task forces and was responsible 

for securing Regional Command-East (RC-East) as part of ISAF’s fighting forces. The CJTF101 Staff Judge Advocate had a separate rule of law officer to supervise the brigade rule of law 

efforts and would implement rule of law guidance through the traditional FRAGO process. 

CJTF-101’s main advantage was that it was forwardly located in provinces and could directly 

impact local rule of law developments. CJTF-101’s main disadvantage was that RC-East was 

hostile territory, and it was difficult to make meaningful connections with local justice officials 

spread over such a large geographical area. Brigade legal sections were simply not manned or 

equipped to serve as the rule of law development offices for an area larger that some US states. 

The Provincial Reconstruction Teams (PRT) joint, multi-disciplined interagency force provided 

some possible additional resources to each brigade to assist rule of law efforts, but until mid 

2008, the PRTs lacked specific rule of law expertise. 

The main asset in the CJTF-101 inventory was the availability of CERP funding. Using 

this funding, the brigades could fund additional infrastructure for the provincial level of the 

Afghan justice sector. In simple terms, they could build courthouses, justice centers, and jails. 

CJTF-101 had the limited ability to interact with local government officials through what they 

called “Key Leader Engagements” (KLEs). These, essentially, were periodic visits and 

discussions of legal issues with Afghan provincial justice sector officials. Low manning levels 

did not allow for any meaningful ongoing mentoring efforts. CJTF-101 was very effective in 

distributing legal reference materials, leveraging the training opportunities provided by other US 

Government entities, and supporting rule of law through a variety of radio and other information 

operations campaigns. CJTF-101 was instrumental in the creation and funding of the 

Independent Afghan Bar Association. This was a prime example of the successful use of CERP 

funding to accomplish a strategic national level objective. 

5. Coordinating US Efforts 

All these activities were monitored on a weekly basis by the Special Committee on the 

Rule of Law (SCROL). The SCROL brought together these five implementers as well as the 

representatives of the PRT office, the Embassy political section, the FBI, the US Treasury 

Department, and ISAF. The SCROL served to keep the Embassy ROLC informed of other 

ongoing activities, but was not able to provide any meaningful strategic guidance or direction. 

The document that guided the US rule of law efforts in Afghanistan was a short document 

approved by the National Security Council in 2008. But this document was not intended to 

provide a programmatic approach to integrate and manage all USG efforts in Afghanistan. 

One of the major efforts during my time in Afghanistan was to draft a document that 

created a single plan that accounted for the over 120 different rule of law activities taking place 

in theater by five separate implementing agencies. All US efforts were anchored to one of the six 

categories of the NJP and managed both geographically and as part of a national, strategic plan. 

The draft plan provided one- and three-year objectives and established a six-month periodic 

review allowing for adjustment of the stated objectives. More importantly, it leveraged the power 

of the newly created Integrated Civil Military Action Group, which provided a mechanism to 

289 Chapter X - Narratives 
Rule of Law Handbook 

assign specific actions to the various US agencies. While it is still too early to determine the 

success of this program, the Embassy was able to use it to successfully prioritize all the future 

judicial construction within RC-East with the Afghan government, resolving the longstanding 

problem of haphazard construction efforts, which had been a source of disagreement between 

military implementers and the Embassy. 

6. The Way Ahead 

Tremendous challenges lay ahead in rule of law development in Afghanistan. One 

tempting avenue would be to create a “Rule of Law Czar” assigned specific objectives and 

armed with real power to assign people and control budgets. Given the nature of the interagency 

environment, though, this is unlikely to occur. Other issues remain equally challenging. 

Corruption remains endemic across the Afghan government; opium production remains the 

staple of the Afghan economy; the physical and human infrastructure is lacking and may take a 

generation to improve; there are limits to Afghan federal power and a lack of physical security 

limits the reach of the central government. There is also the need to incorporate and co-opt the 

informal justice system and legitimize the legal practices that are probably currently providing 

more legal services to Afghan citizens than the formal justice sector. Finally, there must be 

increased political will by both the Afghan and US governments to enforce the rule of law. The 

task is not impossible but it will be a long and hard fight. 

Chapter X - Narratives 290 
 

XI. Rule of Law Project Descriptions 

Editors’ Note: As with the previous chapter, this chapter contains practical discussions 

of actual experiences. Rather than describe the experience of a particular individual, though, 

this chapter provides descriptions of a variety of recent rule of law projects. Our hope is to 

provide an idea of the wide variety of projects being performed at many levels by various types 

of organizations as well as to some ideas about what rule of law teams can do. As with the 

previous chapter, these are descriptions of recent operations that may not be applicable in other 

environments. Many describe not only challenges but also successes achieved through 

application of the principles described elsewhere in the Handbook. 

A.	 Prosecution Task Forces and Warrant Applications in 

Multinational Division-Center* 

The US-Iraq Security Agreement that went into effect on 1 January 20091 marked a 

significant milestone in the six-year conflict in Iraq. It not only signified an important political 

turning point, it also radically changed the legal operating environment for US forces in Iraq. 

Compliance with Iraqi law, particularly Iraqi criminal law and procedure, became a priority 

under the agreement, and as the primary interface between US forces and Iraqi judges and 

judicial institutions at the division level, the Rule of Law Working Group experienced an added 

sense of urgency. MND-C established Prosecution Task Forces (PTFs) to ensure an accurate 

understanding of and proper compliance with Iraqi criminal law and procedure. The PTFs served 

two functions: They helped ensure US compliance with Iraqi law under the Security Agreement 

and helped strengthen local criminal investigations and prosecutions. In practice, however, both 

missions overlapped, particularly in the area of criminal investigations. 

US understanding of Iraqi law prior to the implementation of the US-Iraq Security 

Agreement was limited, primarily because operations under the United Nations Security Council 

resolutions did not require compliance with Iraqi law.2 Prior to the Security Agreement, 

multinational forces had conducted operations in Iraq in accordance with a series of Security 

Council resolutions adopted pursuant to Chapter VII of the U.N. Charter. The resolutions 

authorized multinational forces to take “all necessary measures to contribute to the maintenance 

of security and stability in Iraq.”3 The provisions of the Security Agreement, however, were 

*

 CPT Ronald T. P. Alcala served as the Chief, Rule of Law Operations, and Legal Advisor to the 

Governance, Reconstruction, and Economics Coordination Cell, Multinational Division-Center from 

September 2008 to May 2009. CPT John Haberland served as the Chief, Detention Operations, 

Multinational Division-Center from May 2008 to June 2009. 

1

 Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United 

States Forces from Iraq and the Organization of Their Activities During Their Temporary Presence in 

Iraq, U.S.-Iraq, Nov. 17, 2008 [hereinafter Security Agreement], available at http://www.mnfiraq.com/images/CGs_Messages/security_agreement.pdf. 

2

 See, e.g., S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004) [hereinafter UNSCR 1546]. 

3

 UNSCR 1546, supra, ¶ 10. The last in the series of U.N. resolutions extending the mandate of the 

multinational force was U.N. Security Council Resolution 1790, which expired on 31 December 2008. 

S.C. Res. 1790, U.N. Doc. S/RES/1790 (Dec. 18, 2007). 

291 
 

more restrictive than the broad mandate of the UNSCRs. Notably, the Security Agreement 

declared that it was the “duty” of US forces to “respect Iraqi laws, customs, traditions, and 

conventions” and to take “all necessary measures for this purpose.”4

 Provincial Iraqi Control 

(PIC) Agreements completed prior to implementation of the Security Agreement helped 

familiarize US forces with Iraqi law but did not compel compliance with local laws. 

The PTFs, meanwhile, were responsible for guiding criminal investigations and ensuring 

compliance with local evidentiary standards and procedures. The PTFs generally took the form 

of committees comprised of US military personnel (e.g., PMO, JAG, S2), US law enforcement 

contractors (e.g., Law Enforcement Professionals or “LEPs”), and members of the Iraqi Security 

Forces (ISF). Some PTFs included local judges as well, although the level of judicial 

involvement in the committees varied by province. 

The PTFs met regularly, usually on a weekly basis, to review criminal evidence and to 

focus investigations. Frequent key leader engagements (KLEs) with local judges, conducted 

primarily by brigade-level judge advocates and civilian PRT rule of law advisors, helped clarify 

what evidence the judges required (e.g., eyewitness statements, documentary evidence, forensic 

evidence) in order to approve warrant applications. Feedback from judges also identified areas 

where law enforcement investigations needed improvement. In one province, for example, arrest 

warrants applied for by the Iraqi Police (IP) were consistently rejected by the local Investigative 

Judge (IJ). Frustrated by the apparent intransigence of the IJ, the IPs eventually stopped applying 

for warrants altogether. During a meeting between the judge and the brigade rule of law attorney, 

however, the IJ expressed his own frustration with the quality of evidence presented in support of 

the IPs’ warrant applications. After explaining what evidence he expected to receive and 

consider, the PTF worked with the IPs to develop evidentiary packets sufficient to meet the IJ’s 

evidentiary threshold. Warrant applications accompanied by adequate supporting evidence were 

approved by the IJ thereafter. 

The PTFs also helped the ISF collect and analyze criminal evidence. As part of the 

division’s wider effort to professionalize the ISF, law enforcement personnel received training 

on subjects ranging from basic law enforcement techniques to crime scene management and 

forensics. Working through the PTFs, the ISF gained practical experience dealing with real 

world exigencies, particularly in the area of evidence analysis. US forces held training sessions 

for the ISF and local judges that explained the collection, preservation, and analysis of scientific 

and forensic evidence. These training sessions noticeably increased the acceptance of physical 

evidence in a society still largely reliant on eyewitnesses and testimonial evidence. By 

highlighting the value of physical evidence in pending cases, the PTFs helped improve the 

investigative proficiency of the ISF while promoting the use of scientific techniques by both 

judges and the police. 

Finally, in some provinces, IJs participated directly in the PTFs. Sitting with the 

committees, the judges reviewed evidence and could identify evidentiary gaps in ongoing 

criminal investigations. The judges regularly pointed out weaknesses in cases and could direct 

further investigation when necessary. The judges’ participation, moreover, was not limited to 

reviewing evidence for warrant applications. The judges, providing guidance similar to the 

direction they might give to Judicial Investigators (JIs) at an Investigative Hearing, could specify 

4

 Security Agreement, supra note 1, art. 3, para. 1. 

Chapter XI - Project Descriptions 292 
 

 

Rule of Law Handbook 

what additional evidence would be needed for a successful prosecution. By providing a forum 

for direct communication between judges and the police, these PTFs promoted an unprecedented 

level of communication and cooperation that helped strengthen local prosecutions. 

Ultimately, the PTFs were an invaluable tool for ensuring compliance with Iraqi law and 

respect for the rule of law in the provinces. Working directly with judges and the police, the 

PTFs helped improve the effectiveness of criminal investigations and prosecutions by sharing 

information and building local relationships that should endure even after the withdrawal of US 

forces from Iraq. 

B. Linking Up Investigative Judges with Investigators* 

Soon after the Law and Order Task Force (LAOTF) expanded its Investigative Judge 

Team in the summer of 2008, it became apparent that the Investigative Judges (IJs) working at 

the Central Criminal Court of Iraq – Rusafa (CCCI-Rusafa) had little to no personal interaction 

with their Iraqi Police Investigators stationed throughout the Rusafa (east) side of Baghdad. The 

only apparent solution was for US JAs to serve as a conduit to build relationships between the 

Iraqi IJs and the Iraqi investigators. In order to do so, JAs not only had to build relationships with 

the 26 CCCI-Rusafa IJs, but also to identify, find, and build relationships with the investigators 

assigned to investigate the IJs’ cases. The link-up between the IJs and their investigators was 

absolutely essential to progressing a case through the Iraqi criminal justice system and therefore 

essential to the overall advancement of the rule of law in Iraq. 

With the implementation of the 1 January 2009 Security Agreement,1 Coalition Forces 

(CF) must obtain an Iraqi arrest warrant prior to detaining a suspected terrorist.2 Although IJs 

issue the warrants; investigators build the cases and present them to the IJ for issuance of a 

warrant and after arrest, for issuance of a detention order. They are also responsible for followup as the IJ prepares the case for forwarding to the trial court. As a result of this interaction, in 

addition to building relationships with the IJs in their area of operations, it is equally important 

*

 LTC Jeff Bovarnick served as a Team Leader on the Law and Order Task Force, MNF-I, Rusafa, 

Baghdad, from May 2008 to April 2009 and as the Legal Advisor to the Baghdad Operations Center from 

April-June 2009.]

1

 Agreement Between the United States of American and the Republic of Iraq on the Withdrawal of the 

United States Forces from Iraq and the Organization of Their Activities During Their Temporary 

Presence in Iraq, Nov. 17, 2008 [hereinafter SA], available at http://www.mnfiraq.com/images/CGs_Messages/security_agreement.pdf (last visited Aug. 24, 2009). 

2

 SA, supra note 1, art. 22, para. 1. The full paragraph reads: “No detention or arrest may be carried out 

by the United States Forces (except with respect to detention or arrest of members of the United States 

Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi 

law and pursuant to Article 4.” In addition to certain exceptions to the warrant requirement under Iraqi 

law, the SA itself provides CF an exception “in the case of combat operations conducted pursuant to 

Article 4.” Id., art. 22, para. 5. Article 4 (Missions) of the SA describes “[T]he Government of Iraq[‘s 

request for] the temporary assistance of the United States Forces for the purposes of supporting Iraq in its 

efforts to maintain security and stability in Iraq, including cooperation in the conduct of operations 

against al-Qaeda and other terrorist groups, outlaw groups, and remnants of the former regime.” Id. Art. 4, 

para. 1. See also CDR Trevor Rush, Don’t Call It a SOFA! An Overview of the U.S.-Iraq Security 

Agreement, ARMY LAW., May 2009, at 38-39, 42. 

293 Chapter XI - Project Descriptions 
 

 

for CF to know and build relationships with the Iraqi investigators that work within the 

investigative judges’ jurisdictions. Although IJs use both Judicial Investigators and Police 

Investigators, in the types of terrorism cases relevant to CF, Police Investigators are almost 

exclusively used, and, more specifically those investigators that work with the IJs from the 

Central Criminal Court of Iraq (CCCI).3 

In Baghdad, the Central Criminal Court of Iraq has two locations, one courthouse on the 

west side of the Tigris River (commonly referred to as the Karkh district) and one courthouse on 

the east side of the river (or Rusafa district). These two courts, CCCI-Karkh and CCCI-Rusafa, 

have primary jurisdiction over all terrorist cases for Iraq. From May 2008-May 2009, there were 

approximately 25 IJs in each CCCI court. While IJs from CCCI-Karkh and CCCI-Rusafa have 

worked with CF since their inceptions in 2003 and 2007, respectively, the interaction with 

investigators from those courts was limited prior to the implementation of the SA. Beginning in 

June 2008, the Law and Order Task Force expanded its interaction with Iraqi investigators to 

assist in the overall rule of law project within the CCCI-Rusafa.4 

Investigative Judge “Jurisdictions” 

All of the IJs at CCCI-Rusafa have either a “subject matter jurisdiction” or an 

“area/location jurisdiction” (with a subject matter jurisdiction within that location). While not 

referred to by the Iraqis as “jurisdictions,” for explanatory purposes, that term is the closest 

analogy for how the caseload is divided among the IJs by jurisdictions. Focusing on the Rusafa 

side of the Tigris River,5

 the 26 IJs at CCCI-Rusafa cover eight primary jurisdictions spread out 

among eight different Iraqi “police station” locations. 

There are essentially two agencies within the Ministry of the Interior that investigate 

terrorism cases, the Iraqi Criminal Investigation Directorate (CID)6

 and the National Information 

and Investigation Agency (NIIA).7 

3

 Police Investigators are separate and distinct from Judicial Investigators (JIs). Judicial Investigators are 

civil servants that work within the court and they are employed by the High Judicial Council (HJC) and, 

as a result, they can be held accountable by court personnel, whether it is Chief Appellate Judge or 

Investigative Judge. Police Investigators are employed by the Ministry of the Interior (MoI) and, 

consequently, IJs have less authority over a Police Investigator than a JI. While IJs may reprimand an 

investigator, only the MoI can discipline them, the. While IJs would prefer to use trained JIs to assist on 

investigations, reality on the ground in Iraq, at least between June 2008 and June 2009, was that CCCIRusafa IJs almost exclusively used Police Investigators to conduct investigations. 

4

 Prior to June 2008, LAOTF worked with only one IJ, the Chief IJ, Judge Hussein on all of the cases that 

LAOTF helped to initiate within the CCCI-Rusafa jurisdiction. Between June and December of 2008, one 

LAOTF team focused on expanding its interaction with all 26 CCCI-Rusafa IJs and assisting on the 

processing of terrorist cases that originated solely within the Iraqi criminal justice system. After the 

implementation of the 1 Jan 09 SA, LAOTF’s focus again shifted to assisting CF to obtain warrants and 

detention orders from CCCI-Rusafa IJs, as well as coordinating investigative hearings. 

5

 The author worked exclusively with CCCI-Rusafa IJs and their investigative agencies; however, through 

numerous conversations with IJs, investigators, and CF familiar with the Karkh side of the river, it 

became apparent that the Karkh and Rusafa jurisdictions were similar in their operations. 

6

 Iraqi CID was established by Major General Dhia Hossein, Director, CID, in close coordination with 

then LTG David Petraeus in his role as the Commander, Multi-National Security Transition CommandChapter XI - Project Descriptions 294 
 

 

Rule of Law Handbook 

Including its headquarters building, Iraqi CID has approximately 11 offices throughout 

Baghdad. The first nine offices are called CID #1 through CID #9 and the other two offices, 

those utilized most frequently by CF are called Rusafa Operations and Karkh Operations.8 

Generally, each CID office has the following subsections: counter-terrorism, counter-kidnapping, 

counter-organized crime. Each subsection has multiple investigators and each is overseen by one 

or more IJs from CCCI. 

While CID started out as an investigative agency focused on the national level major 

crimes, NIIA started out as an intelligence agency with relatively few investigators compared to 

CID. With the fall of Saddam Hussein, as the number of terrorists in Iraq grew, NIIA expanded 

from solely intelligence gathering against terrorists into investigations. As of the summer of 

2009, the NIIA had two primary locations dedicated to the investigation of terrorist cases. 

Each IJ is assigned to a jurisdiction that has investigators assigned to CID or NIIA and 

for CCCI-Rusafa, this includes one of eight locations on the east side of the river. For example, 

an IJ with a “narrow jurisdiction” could be assigned to work with the counter-terrorism section 

of CID #2 in the Adamiyah area of east Baghdad or an IJ may have a broader jurisdiction 

working with the al-Masbah NIIA office which covers all major terrorist cases that could 

originate anywhere in Iraq. Rusafa Operations IJs will handle all cases in which CF are attacked 

and all cases where Iraqi Security Forces are targeting terrorists. 

Linking Up IJs with Investigators 

Due to the security environment in Baghdad, with few exceptions, IJs work out of their 

offices at the court. With good reason, primarily fear of assassination, IJs very rarely visit the 

Iraqi police stations where their case files are located. Instead, they rely on the daily courier 

service between the IP stations and the court. Each day at approximately 1000, a trusted courier 

brings approximately 30 files from the IP to the IJ at the court. The courier then waits in the 

hallway while the IJ reviews the case files, issues judicial orders in green ink on the case file and 

returns the files to the courier anytime between 1300-1400. The courier then returns the files to 

the IP station where the investigator assigned to the case is responsible for following up on the 

judicial order. Similar to the IJ, the investigators rarely venture out of their IP station, but they 

will draft hand-written correspondence that is forwarded to another agency for assistance in 

gathering the judicially-requested information. When the investigator gets a response to his 

memorandum, then he will forward that response to the IJ. Essentially every action requires a 

memorandum and most times, this antiquated process can cause the system to come to a slow 

crawl. 

One suggestion from LAOTF Judge Advocates was to marry up the IJs with their 

investigators. Because the pretrial detainees and case files are both located at the IP stations, the 

initial suggestion was to get IJs out to the IP stations rather than have the investigators come to 

Iraq between June 2004 and September 2005. Author interview with MG Dhia, Fall 2008. See also 

http://en.wikipedia.org/wiki/MNSTC-I (last visited Aug. 24, 2009). 

7

 Formerly known as the National Intelligence and Investigation Agency. “Intelligence” was changed to 

“Information” due to its negative connotations. Author interview with Brigadier General Salim Qassim,
 

Lead Investigator, Baghdad Operations Center, Summer 2008. 

8

 These latter two CID offices are co-located with the Rusafa Area Command (RAC) (at the Old Ministry
 

old Defense complex) and the Karkh Area Command (KAC) (located at Forward Operating Base Justice). 

295 Chapter XI - Project Descriptions 
 

 

the IJ. This suggestion was met by resistance from the vast majority of the IJs for a variety of 

reasons, with safety and security, both long-term and short-term, as the primary factors. When 

CF volunteered to provide the secure means of transportation to get the IJs out to the IP stations, 

the idea gained momentum. While the primary focus of this rule of law effort was to follow the 

“by, with, and through” directive, this initial means of secure transportation was solely to get 

momentum in the process. Despite CF best efforts, an order from Chief Justice Medhat, issued 

through the Chief Appellate Judge at CCCI-Rusafa, Judge Ja’far, was still required to get the IJs 

to make bi-monthly trips to their respective IP stations. 

In addition to travel and security concerns, initiating face-to-face meetings between the 

judges and the investigators had other challenges. In the Iraqi criminal justice system, there was 

a clear hierarchy, and the judges clearly viewed themselves as well above the investigators. The 

judges expected preferential treatment when they visited the police stations, and when the police 

stations complied, things went smoothly. But when the police did not show deference to the 

judges, it would be a wasted trip. Through much trial and error, the LAOTF JAs were able to 

assess the different personalities to make sure each IJ visit to a police station was productive. In 

addition to visiting their IP stations to meet with investigators to review case files, the IJs also 

met with detainees, inspected detention facilities, and interviewed witnesses. As the judges and 

investigators got to know and trust each other, their working relationship helped to increase case 

throughput, both by decreasing the time for investigations and increasing the volume of cases 

investigated. 

Bringing It All Together – Warrants, Detention Orders, and Investigative Hearings 

Between June and December 2008, LAOTF’s work with IJs and investigators was 

focused on the increasing the efficiency and throughput of cases handled exclusively within the 

Iraqi criminal justice system. This work led to LAOTF’s discovery that IJs and their police 

investigators rarely, if ever, met and their lack of personal interaction led to numerous cases 

deficiencies and delays. During this time prior to the implementation of the Security Agreement, 

the majority of CF units were not concerned with getting warrants or detention orders because 

they were not required before 1 January 2009. As a result, the CF that did not need to build cases 

within the Iraqi criminal justice system did not fully appreciate the role and relationships 

between IJs and their police investigators. 

With the implementation of the SA on 1 Jan 09, CF outside of LAOTF quickly learned 

that IJs relied heavily on their investigators for the processing of cases. The need for CF to 

identify, locate, and build relationships with the IJs’ investigators became just as important as 

knowing the IJ himself. During the six months following the implementation of the SA, 

essentially all CF Warrant Task Forces throughout Iraq had successfully identified the key 

judicial personnel in their sectors and forged the relationships essential to the process of 

obtaining warrants, follow-on detention orders, and ultimately, investigative hearings. 

Rule of law efforts focused on identifying and building relationships of trust with both 

the IJs and their investigators is not only essential to case processing of terrorists cases, but also 

to rebuilding and reinvigorating the Iraqi criminal justice process, which in many locations 

moves slowly due to the lack of face-to-face working relationships and communications between 

IJs and their police investigators. 

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Rule of Law Handbook 

C.	 Scenario Based Criminal Investigator Training for Iraqi 

Police in Northern Iraq* 

Background 

During 1st Armored Division’s deployment to northern Iraq from September 2007 to 

December 2008, the extreme overcrowding of Iraqi pretrial detention facilities was a major, 

persistent issue. The overcrowding led to a worsening of already poor living conditions, an 

increase in detainee abuse, and a general lack of respect for the criminal justice system by the 

local population. The division Rule of Law team (composed of three JAs and two paralegals) 

was able to identify poor criminal investigative techniques as a major contributing factor to the 

backlog in several provinces in northern Iraq and undertook a program to correct the problem, 

realizing several collateral benefits in the process. 

The Basis of the Problem 

Under Iraqi law, Iraqi police investigators conduct criminal investigations under the 

direction of an investigative judge or judicial investigator and are authorized to collect evidence 

and question witnesses. The Ministry of Interior (MoI) requires every police investigator to 

attend a police college for several years. But many of the investigators in Salah ad Din never 

attended police college. Rather, they had been transferred directly from the Iraq Army and had 

been promoted to fill senior positions, even though they and had never received any training on 

criminal investigations. The police investigators’ lack of witness interviewing skills and 

understanding of forensic techniques led them to abuse detainees in order to procure confessions. 

Investigative judges also played a part: upon receiving a reportedly poor investigation, they 

would authorize continued pretrial detention while sending the case back to the police for further 

investigation. This stalled the case with the detainee in confinement but gave the police little 

incentive to conduct a proper investigation (as would have been the case if detainees were 

released if the investigation was inadequate). The breakdown between judges and police was 

compounded by a significant social disparity between the two professions. In Iraq, judges are 

members of the highest echelon of society, whereas police officers are considered common and 

unprofessional. As a result, the judges and the police rarely spoke. One step toward solving the 

problem was for judges and police officers to collegially discuss the requirements of a criminal 

investigation in the abstract, without the outcome in any particular case, and the political 

consequences, depending on the conversation. 

Proposed Solution 

Although the problem of overcrowding was ubiquitous throughout northern Iraq, the rule 

of law team decided to address the problem in Salah ad Din province first. Salah ad Din offered 

several advantages as a pilot location: the strong working relationship between the division, the 

local BCT (1/101 ABN), the Salah ad Din PRT, and the Salah ad Din International Police 

Advisors (IPAs);1

 the proximity of the local police training facility to the rule of law team’s 

*

 CPT Emilee Elbert served as a Rule of Law Attorney for the First Armored Division, Multi-National 

Division-North from September 2007 to December 2008. 

1 The IPAs worked for the Civilian Police Assistance Training Team (CPATT). CPATT, a 

subordinate command to Multi-National Security Transition Command- Iraq (MNSTC-I), is charged with 

297 Chapter XI - Project Descriptions 
 

location; and the relationship between the coalition forces and the Iraqi police and the judiciary. 

Through a rule of law working group, which included staff members from the division and 

representatives from each of the previously mentioned groups, the rule of law team developed 

and implemented a scenario-based training program for the Salah ad Din police investigators. 

Implementation 

Based on the group’s assessment, the course had to include scenario-based training and 

legal training from an Iraqi judge. According to the IPAs, some of whom had been training Iraqi 

police for over three years, students did not respond well to classroom instruction. The Iraqi 

police were inattentive and had trouble retaining information that was presented to them, 

particularly when the class was given using a computer-generated slide show (a medium 

frequently used by CPATT and MNSTC-I).2

 The IPAs believed that training that included 

realistic scenarios would be far more effective. Their training plan consisted of class-room 

instruction developed by CPATT and approved by MoI, but also included the use of physical 

objects, such as cars and containers; real property, including buildings; and actual participants in 

the local jail and legal system, including corrections officers, the local police chief, and 

investigative judges.3 

From the rule of law perspective, instruction by an Iraqi judge in the classroom and the 

inclusion of an investigative judge during the scenario-based training modules were essential. 

Through a series of engagements with the provincial Chief Judge in coordination with the Salah 

ad Din PRT, we convinced the judge to provide an investigative judge to instruct the police 

investigators on the legal standards for arrest and detention, evidence collection, and presenting 

evidence at the investigative hearing; the Chief Judge also agreed to have that same judge 

participate in the scenarios. Including the judiciary in the training accomplished two important 

goals: (1) it provided the police investigators with an understanding of the judges’ requirements 

for conviction in accordance Iraqi Criminal Procedure Code, and (2) it helped build relationships 

between the judges and the police by requiring them to work together in a neutral environment 

devoid of the conflicting political pressures that surrounded the performance of their duties in 

actual cases. 

manning, training, and equipping the civil security forces of the Ministry of Interior in Iraq. This includes 

the Iraqi Police Service, the Department of Border Enforcement, the National Police, and additional 

specialized units. 

2

 Through the proctoring of simple tests to the police investigators in Salah ad Din, we determined that all 

ranks of investigator, including the provincial police chief, lacked even basic knowledge of criminal 

investigative techniques and the legal standards for arrest and detention. 

3

 According to the Salah ad Din IPAs’ proposal document, the “training will focus on proper emergency 

call logging, handling, and dispatching procedures followed by the deployment and operations of patrol or 

line officers, carrying over to criminal investigations, evidence handling, interview and interrogation of 

suspects and witnesses, report writing, and finally presenting a case to the courts. It will allow for 

multiple scenarios to be running simultaneously creating a realistic work environment for the Iraqi police 

in which they can safely be mentored in the carrying out of daily business.” Iraqi Police Scenario Based 

Training Initiative, Salah ad Din Province International Police Advisors (3 March 2008) (on file with 

author). 

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Rule of Law Handbook 

Sustainment 

Since 2004, many attempts had been made by coalition forces to train the Iraqi police. 

Some were successful, buy many did not survive the redeployment of the unit sponsoring the 

training. The lack of follow-through eroded the confidence of the Iraqi police in our methods and 

created confusion among the judiciary. Perhaps the most important part of our plan was to lay 

the groundwork to sustain the training beyond 1st Armored Division’s departure. First, the 

training was designed to be transplanted to other provinces in northern Iraq based on the success 

of the first US-run course in Salah ad Din province. Second, the course was designed to be 

turned over to permanent Iraqi instructors at the provincial police academy prior to our departure 

from theater. When the course was successfully transferred to Iraqi control, several positive 

secondary effects became apparent: (1) the Iraqis were able to take control of the course, 

ensuring it would continue indefinitely; (2) we were able to assess the success of the course and 

make necessary adjustments before implementing the course in other provinces; and (3) high 

ranking police officers in other provinces saw the success of the course and agreed to initiate 

similar courses. 

Conclusion 

By emphasizing scenario-based training, which included instruction from a local 

investigative judge, the rule of law team was able to improve the rule of law in Salah ad Din 

province in three distinct ways. First, with their improved investigative skills, Iraqi police 

investigators were able to conduct basic criminal investigations in a timely manner that was 

effective at investigative hearings. With improved investigations, the judges could process the 

detainees more quickly through the justice system (either by convicting the detainees and 

transferring them to the prison system, or by dismissing meritless cases and releasing the 

detainees back to their families), thus alleviating some of the strain on the detention system in 

the province. Second, relying on Iraqi judges to conduct the training made the training 

sustainable beyond our unit’s (and indeed US forces’) redeployment. Finally, the form of the 

training allowed the investigators and judges, both of whom are critical to the effective operation 

of the criminal justice system, to build a working relationship in a safe environment that can 

improve their combined effectiveness in countless cases to come. 

D. Mudhouse is Born in Wasit Province* 

Background 

By October 2008, the rule of law in Wasit was advancing and developing. Security forces 

were stabilizing, and the courthouses throughout Wasit were functioning well. Conviction rates 

were rising, crime had decreased, human rights violations by the police and other governmental 

agencies were virtually non-existent and perhaps most importantly, the judiciary and security 

forces were beginning to work together for the populace. The only problem was the populace 

was not aware of any of this. It became very clear to the Wasit Rule of Law Team, consisting at 

the time of a Rule of Law Coordinator for the PRT and the Brigade Judge Advocate for the 

maneuver brigade responsible for Wasit, that an information operations (IO) campaign had to be 

*

 CPT E. Patrick Gilman served as a Brigade Judge Advocate for the 41st Fires Brigade, Multi-National 

Division – Center (South) from June 2008 to July 2009. 

299 Chapter XI - Project Descriptions 
waged. It would attempt to spread the word to the people of Wasit that security was improving, 

the judiciary was working for them, that Iraq is their country, and they need to stand up to protect 

it. 

Several months earlier, the PRT Public Diplomacy Officer (PDO) had reached out, 

through local media contacts, to a group known as Mudhouse: a local sitcom broadcast on 

Sumaria Satellite Television. The show, a satire filmed in Wasit Province, is most easily 

identified as a series similar to Seinfeld: a show about nothing. It is set in the 1950s against a 

backdrop of an Iraqi family living in a mud house and deals with the traditions and customs 

prevailing in the agricultural segments of Iraqi society during that time. The series, which airs 

weekly and had just begun filming its third season, highlights the spontaneity and simplicity of 

Iraqi life during that period. In May 2008, the PDO had worked with the cast of Mudhouse to put 

on a comedy show for the populace of Al Kut, which had been the first such entertainment in 

Wasit Province since the fall of the former regime in 2003. Its purpose was twofold: to determine 

if the populace of the Shia dominated Wasit Province would be receptive to a secular, 

nonreligious family activity, and would turn out to attend in large numbers an event associated 

with Coalition forces. By all accounts, the show was a huge success. It was hosted in an indoor 

theater and in attendance was approximately 3000 over two nights. Subsequently, the Rule of 

Law Team began exploring with the PDO the idea of using a Mudhouse comedy production as a 

method to expose the populace to rule of law themes. 

At first glance, enlisting Mudhouse as a vehicle to reach the relevant Iraqi population 

seemed futile. It was assumed that the demographic for Mudhouse was those alive during the 

period covered by the show –the 1950s – which is not a major target audience for a program 

seeking to reach a younger demographic. What the Rule of Law Team came to realize, with the 

assistance of the PDO, was that Mudhouse’s popularity cuts across a broad spectrum of society 

including the younger generations. Once they realized that Mudhouse had such intergenerational 

appeal, the Rule of Law Team and the PDO began the process of putting Mudhouse II together. 

Developing Mudhouse II 

Planning for an early October show, , the Wasit PRT PDO and the Rule of Law Team sat 

down in late September 2008 and began discussing possible messages for a new production. The 

team decided to convince the producers of Mudhouse to provide a message of civil liberties, 

constitutional rights, civic education, voting, and the ills of political corruption – essentially to 

convey the idea that Iraqis own their own collective destiny. The goal was to reach as many 

people as possible over the course of three evenings and the team agreed to meet with the main 

character and producer of Mudhouse to get his opinion and creative ideas. 

The combined Rule of Law Team and the PRT PDO had two meetings with the producer 

of Mudhouse prior to the October production. The first meeting lasted 45 minutes and mostly 

consisted of a discussion of ideas. During that meeting, the Rule of Law Team pitched its 

proposed message and explained the goal of reaching as many people as possible. The second 

meeting dealt with logistics: money, venue, dates, and times. At that second meeting, the parties 

agreed to the budget for the production ($25,000.00 for three nights), the message, the venue (an 

open air theater was constructed at the Al Kut Hotel), and the cast. Also present at that meeting 

was the Associate Dean of the Wasit Law School. He was present to develop a 15-20 minute 

speech to be delivered prior to the beginning of the play on each of the three nights. His speech 

Chapter XI - Project Descriptions 300 
Rule of Law Handbook 

would be used to set the backdrop of the production in order to ensure that the audience 

understood exactly what Mudhouse II represented. 

At the completion of that second meeting, the preparations for Mudhouse II were in full 

swing. The dates were set, the stage was constructed, seating was set up, the site was surveyed 

by the Rule of Law Team and various Coalition and Iraqi Personal Security Details, security was 

arranged by the ISF, a guest list was developed, and invitations were sent. All media and 

promotion for the event were coordinated and carried out by the Iraqi producer of Mudhouse 

rather than by coalition forces or the PRT. The Iraqi producer subcontracted to have flyers and 

leaflets made advertising the show and to distribute and display them throughout the city and 

province. To promote its legitimacy with the populace, the promotion of the event and all of its 

public aspects contained no reference to Coalition forces in any way, but were instead promoted 

as being sponsored and produced by Iraqis. 

Mudhouse II – the Production 

On 3 October 2008, at approximately 1700 hours, only two weeks after the initial 

meeting with the producer, and without Coalition Force pre-reviewing the script, the first of three 

Mudhouse II productions began. The dean delivered his speech to a crowd of approximately 

1500 inside the hotel grounds and an additional 3500 people standing outside and on rooftops. 

Though the speech went on a bit longer than expected, it was well received. When the cast of 

Mudhouse took the stage, the grounds and the streets erupted in cheer. Throughout the show, the 

crowd was in a constant state of laughter and at the end of the production the cast took the stage 

for a final bow and led the crowd in song as copies of the Iraqi Constitution were distributed to 

everyone present. 

The production was covered by multiple media outlets including Iraqiya SAT TV, 

Sumeria SAT TV, Baghdadiya SAT TV, Al-Kut TV and Radio (Terrestrial), Nahrain TV and 

Radio (Terrestrial), Wasit Forum (Newspaper), and a Reuters reporter. For its first two nights, 

there was no American presence. It was not until the third and final night Americans and Iraqi 

VIPs attended the production. By its close on the third night, Mudhouse II was seen by more 

than 15,000 people in Wasit Province. 

The Aftermath of Mudhouse II 

In the days, weeks, and months following the shows, the cast of Mudhouse took to the 

road contracting with PRTs all over the country to hold similar performances in their respective 

provinces. In Wasit, the Rule of Law Team saw an immediate increase in civic involvement from 

members of the populace filing complaints with the police (instead of about the police), 

cooperating with investigations, appearing before judges to testify, and turning out to vote during 

the provincial elections. 

Subsequently, twenty-five thousand DVDs, containing both the speech by the professor 

and the comedy production, were produced through PRT QRF funding to be distributed by 

members of the ISF at security check-points throughout Wasit Province. 

By all accounts, Mudhouse II was a phenomenal success resulting in a third Mudhouse 

production, which took place over three nights in December 2008. The themes for the third 

production included citizens demanding accountability from their elected public officials to 

reduce corruption and the necessity of their participating in the 31 January elections for that 

reason. For Mudhouse III, the introductory remarks were made by a female human rights 

301 Chapter XI - Project Descriptions 
 

attorney, chosen by the Iraqi producer as the best speaker available on the subject. Because of the 

trust and confidence between the Rule of Law Team and the Iraqi producers of the event, 

Coalition forces did not know it was a female until she presented herself at the event. 

As with Mudhouse II, Mudhouse III contained no official statement of Coalition 

sponsorship (although it was funded with Quick Reaction Fund). After Mudhouse III, the 

concept was adopted by the Rule of Law Coordinator's Office at the US Embassy and divisionlevel rule of law team at Multi-National Division – Center (South), where it was adopted for 

dissemination throughout the division’s AOR and subsequently throughout other provinces in 

Iraq. 

By relying almost entirely on local, Iraqi producers, writers, and actors, the PDO and 

Rule of Law Teams were able to come up with a public education campaign that was readily 

accepted by the local population. Moreover, by relying on a program with proven entertainment 

value in an environment where real entertainment had been lacking for years, the team was 

assured of exceptionally high interest in the production and a sense of local commitment to both 

the production and the messages it conveyed. 

E.	 Finding an Iraqi Solution to Overcrowded Prisons in 

Basrah* 

One of the greatest challenges to rule of law in Basrah province1 throughout 2008 was the 

severe overcrowding in the prisons and detention facilities and the lack of due process for 

criminal suspects. The problems facing the criminal justice system were caused by breakdowns 

throughout every step of the process, from arrest to investigation to trial. Although the Provincial 

Reconstruction Team (PRT) and Coalition Forces (CF) were continuously working to build 

capacity among the Iraqi judiciary and security forces, a major obstacle to solving the detainee2 

problem was a lack of cooperation and trust among Iraqi officials in the justice institutions 

(police, courts, prisons, and the army to an extent). It became increasingly obvious that a solution 

would not occur unless the Iraqis themselves could identify specific breakdowns in the justice 

process and work together to address them. Coordinated efforts between the PRT, U.K. Civilian 

Police Advisors (CivPol), and CF were needed to bring Iraqi counterparts to the table and foster 

greater cooperation and coordination among high-ranking justice officials. 

Throughout 2007 and the spring of 2008, the city of Basrah was under the brutal and 

chaotic control of various militias, the most dominant being Jaish al Mahdi (JAM)3, led by the 

anti-American Shiite cleric, Muqtada al Sadr. During this period, rule of law was in state of 

*

 Timothy Kotsis served in the State Department as Rule of Law Advisor for the Basrah Provincial 

Reconstruction Team from December 2007 to June 2009. 

1

 Basrah province is an area of great commercial and strategic importance. It contains vast oil reserves, 

Iraq’s only deep-water port, and shares borders with Kuwait, Saudi Arabia, and Iran. The provincial 

capital, Basrah city, is the second largest in Iraq. Basrah was a British area of operation, with a British-led 

PRT, until the transfer of authority to U.S. forces on March 31, 2009. 

2

 The term “detainee” in this context means a criminal suspect that has been incarcerated and is awaiting 

trial. Basrah also had a large number of convicted prisoners mixed with pre-trial detainee populations; 

however, pre-trial detainees made up the vast majority of those held in prisons and detention sites. 

3

 Translated as, the Mahdi Army. 

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Rule of Law Handbook 

failure: the courts suffered daily intimidation and threats from insurgents, the police force was 

heavily infiltrated by militia members, and the prisons were used to punish political enemies. 

However, a dramatic turn for the better began at the end of March 2008 with the Iraqi-led/ 

Coalition-supported Operation Charge of the Knights. The operation decisively wrested control 

of the city from JAM, allowing Iraqi Security Forces (ISF) to re-establish relative stability and 

security throughout the province. The success of Charge of the Knights had the consequence, 

however, of exacerbating the already dire situation in Basrah’s prisons by filling them with 

hundreds of detainees swept up during the operation. The sudden influx of detainees resulted in 

overcrowding in the prisons and major backlog in the courts, which threatened to crush the 

already fragile criminal justice system in Basrah. Suspects were imprisoned for excessive periods 

without trial, lacked access to legal representation, and were held in dire conditions4. 

A deep distrust between the judiciary and police, and a lack of high-level engagement 

among judges and police commanders, contributed to the breakdown of the criminal justice 

process. Each side would always blame the other for the backlog of detainees, insisting that the 

other was not doing its job. The fact that the Iraqi Army also conducted arrests and detention 

further complicated matters and caused consternation among the judiciary.5

 Dealing with this 

problem required the PRT, CivPol, and Coalition Forces to bring the respective entities together. 

The PRT Rule of Law section was the focal point for the judiciary and prison officials. U.K. 

CivPol advised the Provincial Director of Police (PDOP) and his staff, and CF worked with the 

Iraqi military. Each organization had to work to convince their relative Iraqi counterparts of the 

benefit of high-level engagements and the need take other parties’ concerns into account. 

First, it was incumbent on the PRT to demonstrate to the British and US military 

commanders that the plight of detainees in Basrah’s prisons should be a priority6. By the 

beginning of 2009, Basrah was doing well from a military perspective. Security, while not ideal, 

continued to improve; the Iraqi Army steadily improved its effectiveness in disrupting insurgent 

activity; and the police, though lagging behind the army, began to make high-value arrests. 

Additionally, a priority was placed on economic development, given the province’s vast oil 

reserves, deep-water port, and proximity to international borders. While conditions that 

potentially violated human rights were always a concern, due process for terrorist suspects was 

generally viewed by Iraqi and Coalition forces as collateral damage resulting from efforts to 

improve the security situation. The negative impact to security that could result if dangerous 

detainees were released back on the streets of Basrah because the poor quality of case files was a 

4

 Basrah has two prisons, Al Maqal Prison and Al Minah Prison, neither of which were built as prisons. 

Al Maqal was converted from a hospital built in the 1920s; Al Minah is a converted warehouse in a port 

area on the Shatt al Arab river. Various police divisions also have detention facilities, only one of which 

is built for that purpose and in suitable condition. 

5

 Basrah’s judges were concerned with the legality of arrests and investigations conducted by the Iraqi 

Army, and the army’s general lack of knowledge of criminal procedure. The power of law enforcement 

fell upon the army because it was the only effective security force during Operation Charge of the 

Knights and the following interim period, as responsibility for security slowly transferred from the army 

to police.

6

 This is not to imply that Coalition military commanders were not concerned with the lack of due process 

for detainees, just that security was always their foremost priority. Indeed, the British commander for 

Multi-national Division Southeast, Major General Andy Salmon, placed a high emphasis on the rule of 

law mission, and readily supported the PRT in this area. 

303 Chapter XI - Project Descriptions 
 

legitimate concern, but the Rule of Law mission required a practical solution that considered 

both security and due process under Iraqi law. 

Second, the Coalition had to collect the data regarding the number of detainees; where 

they were being held; and the status of their cases in the criminal justice process7

. When engaged 

on the issue of the detainee backlog, Iraqi judges and police tended to minimize the extent of the 

problem, understate the number in detention, and insist that most detainees were receiving timely 

process. Therefore, they claimed, no high-level meeting was necessary. In order to motivate 

judges and ISF to deal with the problem, the Coalition needed to present them with the 

overwhelming evidence that the system was in crisis. This was especially crucial in bringing the 

judges to the table. They were understandably apprehensive of the police, given the recent 

history of infiltration of the police by JAM. To accomplish the collection of data on detainees, 

the PRT relied on CivPol and CF to engage with their counterparts in order to ensure access to 

police and army detention sites. 

Third, the PRT required CivPol and CF to emphasize to the police and the Iraqi Army the 

primacy of the judiciary in the Iraqi criminal justice system.8

 This was important in order to give 

the judges the confidence to productively confront the security forces about what they saw as 

violations of Iraqi law. Additionally, the high-level meetings that were eventually arranged took 

place in the provincial courthouse, with the Chief Judge or Deputy Chief Judge chairing. This 

was important to send a message to ISF commanders that the justice system was an inherently 

civilian function, controlled by the judiciary, and strictly governed by law. 

Two meetings between senior judiciary and ISF commanders led to incremental, but 

important, steps toward solving the detainee crisis and establishing better cooperation among the 

justice actors. For instance, the judiciary established a committee to specifically address the 

detainee problem; police and military officers promised greater cooperation with judges 

regarding the disposition of evidence and case files; and a member of the judiciary was given a 

seat on the Basrah Security Council in order to provide better institutional coordination with ISF. 

The extent of the detainee problem in Basrah did not lend itself to high-profile quick 

wins, or simple solutions. It was an Iraqi problem that could only be solved by Iraqis. However, 

Coalition members were able to play an important role by bringing judges and ISF commanders 

together, advising on possible solutions to the problem, and provided targeted resources to build 

capacity in the justice system9

. 

7

 A thorough assessment of the legal status of detainees was difficult for logistical and security reasons. 

Assessments were usually conducted by polling sample sets among the detention populations and 

corroborating the data with various independent reports. 

8

 The judiciary, while legally the most powerful institution in the justice process, relied heavily on the 

police and army to keep them safe from militias, including from militia members and sympathizers within 

the ranks of the ISF. 

9

 The Coalition provided training and support to police and correctional officers, including instruction in 

human rights and humane detention procedures. In addition, construction of the U.S.-funded Basrah 

Central Prison is underway, which will provide the province with a built-for-purpose facility and adequate 

space to house prisoners. 

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Rule of Law Handbook 

F. Bringing Rule of Law to a Developing National 

Operations Center* 

In June 2009 the Afghan National Army (ANA) conducted a week-long national exercise 

to prepare for the Presidential election in August. In addition to the ever-present threats of 

Taliban infiltration of local communities and improvised explosive devices (IEDs), the ANA 

anticipated additional, election-specific threats of voter intimidation, assassination of candidates, 

as well as attacks on international election observers, local officials, polling places and 

supporting convoys. The Combined Security Transition Command – Afghanistan (CSTC-A), the 

coalition unit whose primary mission is to mentor and train the ANA, designed the exercise. 

Coalition mentors from CSTC-A consisted of American, British, Canadian, Romanian, 

Polish, Italian, Austrian and French officers and enlisted from every staff section. All worked for 

months with their Afghan counterparts preparing for the exercise. Coalition mentors developed 

scenarios to test the ability of the ANA National Military Command Center (NMCC),1

 the 

subordinate Tactical Operation Center (TOC), and field unit leaders to respond to the potential 

threats that might emerge in the weeks before and during the election. The exercise also 

represented the first time that ANA General Staff lawyers were invited to participate in an 

operations center at the national level. 

Even in a developing army, it is easy for commanders to understand the role lawyers play 

in the unique military justice system. It is more difficult for Afghan commanders to imagine how 

their lawyers can contribute in the operational arena. Exercises such as this one allowed 

commanders to see the effect that rule of law can have on operations. 

With that in mind, legal mentors developed exercise scenarios emphasizing the need for 

operational legal advice to assess the ability of the participating lawyers to give that advice. 

Without any operational experience guiding them, ANA lawyers participated in the exercise to 

observe and learn as well as contribute. 

Much like a law school exam question, legal mentors developed fact patterns to test the 

ability of the ANA lawyers to apply rather than recite the law. The first challenge for the ANA 

lawyers was to spot legal issues. The second was to communicate those issues to the TOC 

commander and make useful recommendations. Once each issue was identified and addressed, 

the legal mentors adjusted the scenarios in order to raise other issues. 

Many important lessons were learned throughout the exercise, some regarding 

operational law and others about practicing law in an operations center. ANA lawyers quickly 

learned the importance of distinguishing between combatants and noncombatants, separating 

tactical areas where the ANA should be involved from those where it would be more appropriate 

for other ministries (such as the Afghan National Police) to exercise jurisdiction, and the levels 

*

 Maj. Kurt Sanger, USMCR, served with the Combined Security Transition Command – Afghanistan as 

the Senior Legal Mentor to the Afghan National Army General Staff Legal Section from March 2009 to 

September 2009. 

1

 The National Military Command Center, the Afghan equivalent to that of the same name in the 

Pentagon, is the primary source of information and communication flow for the Afghan President and all 

Ministries to and from the ANA. 

305 Chapter XI - Project Descriptions 
 

of force necessary to meet nonviolent and violent situations where threat levels escalated from 

rock throwing to the use of deadly force. 

In addition to developing their legal skills, ANA lawyers also recognized many important 

aspects of their duties as staff officers: building relationships with each of the staff sections and 

to solve problems in a cramped, loud tent where everyone competed for workspace and resources 

as well as the TOC commander’s attention. 

Coalition mentors learned equally vital lessons that could improve future mentoring. For 

example, in the US, an insurgent (or vandal) caught in the act of tampering with an election 

ballot box who otherwise posed no threat to life or limb would probably not merit a violent 

response and would likely be addressed by law enforcement officials. In Afghanistan, the same 

action could threaten the legitimacy of the election and the entire Afghan Government and might 

need to be addressed by soldiers with force. 

ANA lawyers recognized the unique equities at stake in this election – the failure to fairly 

and safely execute the vote at this stage in Afghanistan’s development represented an existential 

threat to the country and its government – and recommended changes to the use of force to 

ensure those interests were protected. It is imperative that legal mentors understand that what 

may properly address the legal and operational issues in their own countries will not necessarily 

provide the appropriate answer for host nations, such as Afghanistan, facing very different 

political, cultural, and legal challenges. 

Although originally designed to address the specific question of how to provide security 

during a national election, the election exercise improved relations between ANA lawyers and 

their commanders and staff sections. Exercises such as this give staff lawyers a chance to show 

their own security forces the value legal advice during operational planning. This exercise was 

the first time ANA lawyers had been invited to take a seat at the operational table. By providing 

useful advice, the ANA lawyers demonstrated to commanders and staff members that they 

should keep that seat at the table. Their contributions were so valuable that they have been 

invited to have a permanent seat in Afghanistan’s NMCC. 

Because this exercise focused on the operational planning process, it not only improved 

the security conditions for an event as important as the national election, it also gave the national 

staff experience working with their military lawyers. By focusing on process, the exercise 

produced a long-term, sustainable improvement to the conduct of military operations in 

Afghanistan by improving the capacity of the ANA NMCC to conduct all operations in 

accordance with the rule of law. 

G. Integrating Rule of Law with Foreign Internal Defense* 

For multiple rotations, the primary line of operation (LOO) for Combined Joint Special 

Operations Task Force – Arabian Peninsula (CJSOTF-AP) has been Foreign Internal Defense 

(FID). Because FID inherently involves operations “by, with, and through” our partnered Iraqi 

*

 LTC Dan Tanabe served as the Command Judge Advocate for Combined Joint Special Operations Task 

Force – Arabian Peninsula from November of 2007 to June of 2008 and from February of 2009 to June of 

2009. 

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Security Forces (ISF), CJSOTF-AP has been able to build sustainable capacity within multiple 

partnered ISF units throughout Iraq. 

In late November of 2007, the CJSOTF-AP J3 (Operations), Deputy J3 along with the 

command judge advocate (CJA) realized many of the detainees held in Camp Bucca and Camp 

Cropper were being held as “security detainees.”As such, they would eventually be released, 

possibly in large numbers in the near future due to the sheer number of detainees at these 

locations and the looming expiration of the U.N. Security Council Resolution authorizing 

continued US detention of Iraqis.1 If, however, a detainee entered Camp Cropper pursuant to a 

“referral to trial” by an Iraqi Investigative Judge in accordance with Iraq Criminal Procedures 

Law, then the detainee would be a “criminal detainee”. Unlike security detainees, criminal 

detainees would not be considered for mass release and would instead be detained to await trial 

in “pre-trial” status. 

Recognizing the importance of these distinctions under Iraqi law, the CJSOTF-AP 

commander authorized the establishment of a “Rocket Docket” to undertake the necessary 

criminal process for on High Value Individuals (HVIs) or targets of a national value to our 

partnered ISF units. The implemented concept of operation was to bring Iraqi witnesses before 

an Iraqi Investigative Judge immediately after the point-of-capture to seek a “referral to trial” 

before placing the detainee into a U.S detention facility. This CONOP was successfully executed 

over the next seven months resulting in nearly 33% of all CJSOTF-AP detainees being 

inprocessed into U.S detention facilities as “criminal detainees” with a “referral to trial” by an 

Investigative Judge, as opposed to as “security detainees” detained under the authorities of the 

United Nations Security Council Resolution then in force. 

By June of 2008, the Iraqi Special Operations Force (ISOF) and Emergency Response 

Brigade (ERB) along with their regional subordinate units (regional commando battalions (RCB) 

and regional emergency response units (R-ERU)) were capable of unilateral counterterrorism 

operations as well as facilitating national scalable strike force packages capable of quelling flare 

ups such as the Basra Uprising of 2008. Along with this growing capability was the requirement 

of ensuring such partnered ISF units followed the rule of law. 

The US/Iraq Security Agreement of January, 20092

 required a shift to Iraqi legal 

detention rather than security detention, mandating what has come to be called “warrant-based 

targeting” in most cases. This requirement fit nicely with the requirement to ensure that 

partnered ISF units adhered to the rule of law. In order to achieve this desired endstate, in lateJanuary 2009 the CJSOTF-AP commander tasked the CJSOTF-AP CJA along with the J3, 

Deputy J3, J3 ISF Planner and the J5 (Future Plans), to develop an expedited process similar to 

the initial “Rocket Docket” that nested the targeting methodology within the Iraqi Criminal 

Procedures Law. The resulting process needed to balance targeting responsiveness without being 

a “rubber stamp,” thereby creating a sustainable yet functional process that disrupted terrorist 

and insurgent activity while being viewed as legitimate by the local and regional population. 

1 See generally section IX.B.4. 

2

 Agreement Between the United States and the Republic of Iraq On the Withdrawal of United States 

Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, (Nov. 

17, 2008), available at http://www.mnf-iraq.com/images/CGs_Messages/security_agreement.pdf (last 

visited Aug. 14, 2009). 

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The guiding principle from the start was to ensure we only adopted and implemented 

sustainable processes and techniques that our partnered ISF forces could readily continue once 

US forces began the eventual withdrawal and took their advanced technology and resources with 

them. While techniques involving fingerprints and explosive x-spray, for example, were 

occasionally accepted in Baghdad at the Investigative Hearings, their success at the trial level 

was about 1%. Not only were such techniques frequently viewed with suspicion by magistrates, 

the technological support necessary for these techniques was often lacking in more remote 

locations such as Jalula or Amarah. In light of these realities, CJSOTF-AP decided to remain 

within the accepted practices of the Iraqi criminal judicial system and to defer any notions of 

modernization for another time and agency. 

Based on this guiding principle and our assessment of the Iraq criminal procedure as 

practiced by the Investigative Judges we had previously worked with, we determined that the key 

critical requirement from an evidentiary standpoint was live witness testimony, preferably from 

an Iraqi. While hard physical evidence was important and some Investigative Judges were 

issuing arrest warrants on minimal non-live witness-based evidence, the follow-up requirements 

for post-capture process under Iraqi law were not sustainable for our partnered ISF units due to 

logistical short falls. Therefore, CJSOTF-AP decided to “front-load” our arrest warrants with the 

quality and quantity of live testimony we knew based on detailed guidance from the Investigative 

Judges would be required in order to justify continued detention under Iraqi criminal procedure. 

We brought in several Iraqi witnesses to testify before an Investigative Judge, and only after the 

arrest warrant3

 was comfortably issued by the presiding Investigative Judge was that individual 

targeted for capture. This process consistently provided CJSOTF-AP a streamlined process that 

required minimal follow-up requirements post-capture other than bringing the criminal detainee 

before the Investigative Judge along with all the physical evidence secured during the site 

exploitation on the objective. 

A FRAGO written by a team that consisted of the CJSOTF-AP CJA, Deputy J3, and J35 

ISF Planner was published at the beginning of February 2009. The importance of setting up a 

team to draft and publish this FRAGO was to ensure that the legal principles and technical points 

were written in a manner that the operators could readily understand and put into the context of 

their operating environment. With the evolution towards transparent targeting with our partnered 

ISF units, it is important to understand that in essence the “Rocket Docket,” while managed by 

the legal team, belonged to the commander and J3. The plan became the process for our overall 

targeting methodology and included within it decisions on whether or not most missions were 

approved. In this way, this ostensibly “legal” element was the commander’s, much in the way 

that ROE, which may be managed by the SJA, are owned by the commander & J3. 

Beginning in February 2009, teams located in the Baghdad area and nearby towns like 

Taji and Fallujah began to coordinate local national witness appearances with the CJSOTF-AP 

legal team. In an attempt to promote transparent targeting and legitimacy, the use of “secret 

sources” was discouraged and instead the focus was on “vetting” the Iraqi Investigative Judge in 

order to protect the identities of sources and sub-sources. Such vetting was conducted by our 

3

 Under the Iraqi Criminal Procedures Law, a validly issued arrest warrant has no time limitation and is 

valid until rescinded by the issuing Investigative Judge or higher authority. 

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Rule of Law Handbook 

ISOF counter-intelligence team and backstopped by OCE reporting through their source 

networks. 

In order to set the conditions for success in this process of requesting traveling judges, 

CJSOTF-AP took a “white paper” drafted by a Baghdad OCE and published it across CJSOTFAP as guidance to the teams in how to prepare local national witnesses for testifying before an 

Investigative Judge. It also contained smaller points such as requirements of lodging, Iraqi food, 

and a general template on how to set up a room for the Investigative Judge – all of these small 

points focused towards building rapport and mutual respect between CJSOTF-AP and the 

Investigative Judges. 

Near the middle of May 2009, the Law and Order Task Force (LAOTF) that had worked 

with a set of Investigative Judges, the Joint Investigative Committee (JIC) out of CCCI-Rusafa, 

extended its operations to Central Criminal Court of Iraq – Khark (CCCI-K). Through 

coordination with Multi-National Force-Iraq SJA and Rule of Law Coordinator, CJSOTF-AP 

began discussions with LAOTF to employ the CCCI-K JIC Investigative Judge for CJSOTF-AP 

“Rocket Docket.” After vetting of this JIC Investigative Judge through ISOF counterintelligence 

and the CJSOTF-AP J2, a proof-of-principle (PoP) CONOP was developed between CJSOTFAP and LAOTF to bring this JIC Investigative Judge to Mosul and Baqubah to support the ISF 

units at these locations that were partnered with CJSOTF-AP assets. Bringing an Investigative 

Judge from Baghdad was essential because local Iraqi witnesses were willing to testify before an 

Investigative Judge from Baghdad, but not before a local Investigative Judge. It was also 

impractical to use the other existing mechanism, rotating circuit judges, because of 

inconsistencies in the standards applied by new judges when they arrived in Mosul. Having a 

single Investigative Judge from Baghdad provided both the legitimacy and consistency 

necessary. 

Upon arrival at Mosul, the JIC Investigative Judge and his criminal investigators were 

greeted and by the Mosul ISOF RCB reconnaissance commander, who also provided lodging and 

food. After breakfast the morning after their arrival, the IJ and the criminal investigators sat 

down with the Mosul ISOF RCB reconnaissance commander and discussed the general situation 

in Mosul, what types of targets they were focusing on, and the general details for the source 

network that the witnesses would be coming from to testify before the IJ. 

After this professional discussion, the witnesses were brought in one by one, first to the 

criminal investigators for their preliminary testimony and then to the IJ. Over two days 15 local 

national witnesses testified against various terrorist and insurgent networks. Based on the 

testimony of the 13 local Iraqi witnesses who testified,4

 the IJ issued of 86 arrest warrants. Near 

the end of the second day, another professional discussion was held so that the JIC Investigative 

Judge could provide both positive feedback on the hearings as well as suggestions for 

improvement, a degree of professional and cooperation we found quite impressive. 

After Mosul, the mobile judicial team travelled to Baqubah, where the Baqubah R-ERU 

followed a similar procedure, providing the criminal investigators and the IJ with testimony from 

six local Iraqi witnesses who testified on various terrorist and insurgent networks operating in the 

4

 Two of the 15 witnesses failed to bring their required four forms of identification and were consequently 

not heard by the IJ. 

309 Chapter XI - Project Descriptions 
Baqubah area. Based on the testimony of these six local national witnesses, 38 arrest warrants 

were issued by the IJ. A similar professional development session was conducted between the 

JIC Investigative Judge and the Baqubah R-ERU deputy commander. 

After about a week following the CJSOTF-AP and LAOTF liaison officers’ return to 

base (RTB), the Baqubah R-ERU captured nine of the criminal detainees based on the recently 

issued Arrest Warrants. Based on the initiatives of the team leader in Baqubah, he requested the 

authorization to have the Baqubah R-ERU convoy the nine criminal detainees to Victory Base 

Complex (VBC) for transfer into the CJSOTF-AP Temporary Holding Facility (THF). The team 

leader believed that this would give the local population an understanding of the professionalism 

of the Baqubah R-ERU and also allow the Baqubah R-ERU “pride in ownership” of this 

operation from start to finish, both top-priority goals of CJSOTF-AP’s FID LOO. The transport 

to Baghdad was successfully completed, and the detainees, with their Gensia cards and physical 

evidence from the site exploitation were transported to the CJSOTF-AP THF for inprocessing 

without incident. Once inprocessed into the CJSOTF-AP THF, the LAOTF liaison officer was 

informed and began coordinating the docketing of the Investigative Hearings for the nine 

criminal detainees before the JIC Investigative Judge. Because, under Iraqi Criminal Procedures, 

criminal investigators are not allowed in Iraqi Courts, we had to provide separate facilities for the 

criminal investigators and the IJ to conduct their separate interviews of the detainees. CJSOTFAP THF assets lead by a CJSOTF-AP liaison officer escorted the criminal detainees to their 

preliminary interviews with the criminal investigators and later escorted the criminal detainees to 

their Investigative Hearings at CCCI-K before the JIC Investigative Judge in order to gain a 

Detention Order / Referral to Trial. The results of the Investigative Hearings were then related 

through the SOTF to the Baqubah team leader to be shared with the Baqubah R-ERU 

commander and then disseminated among the local population in order to foster a sense of 

professionalism and legitimacy in the eyes of the local population for the Baqubah R-ERU. 

By undertaking a functional approach to the targeting problem, we were able to put in 

place a sustainable process that took the targeting methodology used by our partnered ISF forces, 

nested it within the Iraqi Criminal Procedures Law, and made it responsive to the mission of 

disrupting terrorist and insurgent activity. 

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