July 2007 

Center for Law and Military Operations 
 

The Judge Advocate General's Legal Center and School 
 

Charlottesville, Virginia 22903 
 

Joint Force Judge Advocate 
 

United States Joint Forces Command 
 

Norfolk, Virginia 23551 
 
THIS PAGE INTENTIONALLY BLANK 
LT Vasilios Tasikas, USCG 
 

CPT Thomas B. Nachbar, USAR 
 

Mr. Charles R. Oleszycki, Dept. of State 
 

Mr. Cliff Aims, USJFCOM Mr. J. R. McCutcheon, USJFCOM 

LTC Corey L. Bradley, USA CPT Thomas B. Nachbar, USAR 

LTC Elizabeth Borreson, ARNG Mr. Markus Nederkorn, German MOD 

COL John L. Charvat, USA Mr. Charles R. Oleszycki, Dept. of State 

LTC Paul Cohen,.USAR CDR Jamie Orr, USN 

Mr. Dan Donovan, USJFCOM COL Bruce Pagel, USAR 

LtCol Todd J. Enge, USMC MAJ Juan A. Pyfrom, USA 

COL Richard Fay, ARNG MAJ Cynthia Ruckno, USA 

CPT Brent E. Fitch, USA MAJ Nicholas M. Satriano, USAR 

CDR Steve Gallotta, USN MAJ Jeffrey L. Spears, USAR 

COL Dave S. Gordon, USAR LT Vasilios Tasikas, USCG 

Ms. Michelle Hughes, USJFCOM Lt Col Alex Taylor, British Army 

LTC Theodore J. Hunting Horse, USMC LTC(P) Craig Trebilcock, USAR 

LTC Eric T. Jensen, USA MAJ Sean M. Watts, USA 

LTC Laura K. Klein, USA MAJ Eric W. Young, USA 

LTC Michael Lacey, USA 

Cover design by Mary Wood 

Production by SGT James M. Kilbane, USA 

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. 
THIS PAGE INTENTIONALLY BLANK 
p

Why a Practitioner's Guide 

The Center for Law and Military Operations (CLAMO) specializes in the collection of 

after action reports (AARs) from Judge Advocates and paralegals recently returned from 

deployments in either Operation Iraq Freedom (OIF) or Operation Enduring Freedom (OEF). 

There are two constantly re-occurring themes that surface in these AARs. The first is the 

command naturally turns to the legal expert within the task force to plan, execute, coordinate, 

and evaluate rule of law efforts. The second is that no comprehensive resource exists to assist 

practitioners in fulfilling this task. 

It is highly likely the GWOT will require the US military to engage in operations that 

include rule of law operations as an essential part of the overall mission. The term was 

mentioned nine times in the 2002 National Security Strategy, and sixteen times in the 2006 

National Security Strategy (NSS). As the 2002 NSS explains: 

America must stand 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.' 

The need for such a practitioner's guide for rule of law is therefore irrefutable. A much 

more challenging and debatable question, however, is what such a guide should contain and what 

should be the primary focus. Perhaps an even more fundamental and important question is 

exactly what is meant by the term "rule of law"? There are divergent, and often conflicting, 

views among academics, various USG agencies, US allies and even within the Department of 

Defense (DOD), on what is meant by the "rule of law". As in the case of any emerging area of 

legal practice or military specialty, doctrine is non-existent, oficial guidance is incomplete, and 

educational opportunities are limited. 

While acknowledging the above challenges, the Judge Advocate General's Corps 

leadership still recognizes the inevitability that Judge Advocates on the ground under 

extraordinarily difficult conditions will be called upon to execute the rule of law mission. The 

JAG Corps owes these lawyers at the tip of the spear practical guidance in the form of a 

comprehensive resource that discusses the other rule of law players and the challenges that exist 

' The National Security Strategy of the United States of America, September 2002, p.3. See also The 

National Security Strategy of the United States, March 2006, available at 

http://www.whitehouse.gov/nsc/nss.html. 
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 players 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. 

Recognizing that the rule of law mission occurs in the joint operational environment, 

CLAMO has partnered with the lawyers of the Joint Legal Training Cell and other subject matter 

experts at US Joint Forces Command (USJFCOM) to produce this Handbook. USJFCOM as the 

DOD's designated lead for the training of joint forces, development of joint doctrine, resourcing 

of joint trained forces, and capturing joint lessons learned is uniquely positioned to coordinate 

and leverage the rule of law expertise developed within the Services and among USG agencies, 

and to help bring it to the ~udge Advocates bf all Services who are tasked support rule of law 

missions in joint operations. While not joint doctrine, this Handbook is intended to be a valuable 

legal resource for all military lawyers conducting future rule of law operations. 

What the Handbook Is Not 

The Handbook is not intended to serve as US policy or military doctrine for rule of law 

operations. CLAMO has neither the resources, nor more importantly the mission, to propose or 

institute doctrine on a topic upon which no consensus has been achieved. 

The Handbook is not intended to offer guidance or advice to other military professionals 

involved in the rule of law mission. It was written by Judge Advocates for Judge Advocates and 

its scope and purpose is limited to providing the military attorney assistance in the 

accomplishment of the rule of law mission. While others involved in rule of law missions may 

find the Handbook helpful, they should understand its intended audience is the Judge Advocate 

or paralegal involved in the rule of law mission during on-going military operations. 

Finally, the Handbook is not only intended as a resource for Judge Advocates serving in 

the OIF and OEF theaters. A conscious decision was made to make the lessons learned and 

principles discussed as universal in application as possible. The Handbook is not meant to offer 

an all inclusive formula on how to conduct rule of law operations, nor does the book provide an 

exhaustive prescriptive list of tactical plans to implement rule of law missions. Although the 

GWOT rule of law mission today is being conducted primarily in Iraq and Afghanistan, it would 

be shortsighted and counterproductive to make the Handbook only applicable to missions 
As previously discussed, this publication is primarily designed to assist Judge Advocates 

as they practice law during military operations in the currently ill-defined realm of rule of law. 

There was much debate and discussion from this publication's authors and contributors on its 

final form and content. Was it to use the typical "pilot's checklist" type of format that is so 

popular in military circles? Should it follow the traditional AAR format and only provide a brief 

summation of issues faced and the reasons for the successes and failures of Judge Advocates 

who have participated in rule of law missions? Should it be an introduction and synopses of the 

key issues and overall themes on the current status on the rule of law perspective within the US 

military, government, and academic circles? 

In the end it was decided that, to fully understand the complexity of the rule of law 

mission, the Handbook should combine all three of the above formats - but without ever 

forgetting its primary audience - the practicing Judge Advocate in the field striving to 

accomplish his commander's intent. Although the checklist approach has great utility for the 

time sensitive and result oriented military officer, it was determined that while implementation of 

rule of law may be assisted by the use of such checklists and matrixes, success could not be 

ensured without practitioners understanding why they were implementing the measures on the 

list. Rule of law is simply too complex to limit our effort to listing physical actions performed 

such as "build courthouse in province X or "provide computers to judge Y." 

It was also determined that it would be insufficient to produce a work that was a mere 

recitation of recent lessons learned about rule of law operations from Judge Advocates who had 

participated in such missions. While useful for understanding what we have accomplished (and 

failed to accomplish) to date - standing alone they simply lack the refinement and 

comprehensive analysis to truly assist the practitioner. 

It was also' decided that it would be impractical to make the Handbook a legal text to 

debate the pros and cons of the different types and approaches involved with rule of law 

missions. While a solid foundation in the theory of what rule of law is and its overall goals are 

important for the practitioner, theory without practice is like faith without works - empty and 

meaningless. 

It is also hoped that the Handbook will serve as an educational resource for Judge 

Advocates who are preparing to practice in the field. There currently exists very little 

information on this emerging discipline. Even if the Handbook only serves as an introductory 

resource to further their professional education on the topic -it will have served a vital purpose. 

Much like the realm of cyber law ten years ago, rule of law is a field that everyone is talking 

about, but because of the lack of educational resources, discussions are taking place without 

defined parameters or boundaries. 

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.............................. 6 
 

3. Formalist vs. Substantive Conceptions of the Rule of Law ..................................... 13 
 

B. Rule of Law Operations ................................................................................................
 14 
 

1. Rule of Law Operations as an Aspect of Stability Operations ................................ 15 
 

2. Operational Impact............................................................................................16 .......
 3. An Effects-Based Approach ....................................................................................
 19 

111. Key Players in Rule of Law ................................................................................................. 21 
 

A. US Policy and Players -Interagency Coordination...................................................... 21 
 

B. Post-Conflict Interagency Structure...............................................................................22 
 

1. National Security Presidential Directive 44.............................................................22 
 

2. Department of Defense Directive 3000.5 ................................................................ 23 
 

3. US Officials Influencing Post-Conflict Operations ................................................. 24 
 

C. US Governmental Agencies Involved in Rule of Law .................................................. 
 27

1. Department of State ............................................................................................27 .....
 2. Office of the Coordinator for Reconstruction and Stabilization............................. 28 
 

3. Bureau for International Narcotics and Law Enforcement Affairs (INL) ...............29 
 

4. United States Agency for International Development (USAID) ............................. 30 
 

5. Department of Justice (DOJ) ................................................................................... 31 
 

6. United States Institute of Peace (USIP) ................................................................... 32 
 

7. Department of Defense (DOD)................................................................................33 
 

8. Judge Advocates ......................................................................................................34 
 

9. Civil Affairs .........................................................................................................35 ....
 10. Military Police .........................................................................................................36 
 

11. Defense Institute of International Legal Studies (DIILS)........................................ 36 
 

D. US Embassy Country Team.........................................................................................37 
 .. E. International Players ......................................................................................................
 38 

1. United Nations .........................................................................................................
 38 

2. International Monetary Fund (IMF).........................................................................
 40 

3. World Bank ..............................................................................................................41 
 

4. The North Atlantic Treaty Organization (NATO) ...................................................42 
 

F. Non-Governmental Organizations (NGO).....................................................................43 
 

G. Coalition Partners........................................................................................................... 45 
 

1. Coalition Restrictions............................................................................................... 46 
 

H. Two Models Regarding International Involvement..................................................... 51 
 

1. Afghanistan.............................................................................................................. 51 
 
2. Occupation Law ......................................................................................................63 
 . 3. Human Rights Law ..................................................................................................
 65 

C. Conclusion ..................................................................................................................67 ...


V. Institutional and Social Context for the Rule of Law ..........................................................69 
 

A. Legal Institutions ...........................................................................................................69 
 

1. Legislatures..............................................................................................................
 69 

2. Courts.......................................................................................................................
 71 

3. Police..................................................................................................................76 ......
 4. Detention and Corrections .......................................................................................
 79 

5. Military Justice ....................................................................................................81 .....
 B. Civil Law Systems .........................................................................................................
 83 

1. The Civil Law Ideal of Separation of Powers ..........................................................
 84 

2. Specific Aspects of Civil Law .................................................................................
 84 

C. Religious Legal Systems and Sharia Law ......................................................................87 
 

D . Combined Systems .......................................................................................................92 
 .. E. Recognized Alternatives to the Court System ...............................................................
 93 

1. Mediation .................................................................................................................93 
 

2. Arbitration................................................................................................................
 93 

3. Other Traditional Remedies .................................................................................94 
 

4. Truth and Reconciliation Commissions ...................................................................
 95 

5. Property Claims Commissions ................................................................................. 96 
 

F. Civil Society ...................................................................................................................
 96 

1. Operational Objectives for Engaging, Leveraging, and Supporting Civil Society ..97 
 

2. How to Engage with Civil Society in Rule of Law ...............................................97 
 .. 3. Conducting a Baseline Assessment in this Sector .................................................99 
 .. 4. Common Challenges and Lessons Learned to Guide ~m~lementation
 ..................100 
 

G. Non-State Security Providers ...................................................................................102 ....
 1. Assessing the Role of Non-State Security Providers .............................................104 
 

2. Ten Lessons Learned .............................................................................................
 106 

VI. Planning for Rule of Law Operations ................................................................................
 109 

A. Planning Phases ...........................................................................................................
 109 

1. Pre-deployment Planning (-1 80 to -30 D day)....................................................... 110 
 

2. Initial Deployment Planning (-30 to +90 D day) ..................................................115 
 . 3. Sustained Deployment Planning (+91 to indefinite) ..............................................119 
 

B. Assessments (Methodology & Framework) ................................................................ 121 
 

1. Assessments During the Pre-deployment Phase (-180 to -30 D day)....................122 
 
A. Security ........................................................................................................................
 151 
 

B. Military Bias for Lethal Operations and Competing Priorities .................................... 152 
 

C. Interagency Friction and Coordination ........................................................................
 153 
 

D. Forces that Oppose Rule of Law ..................................................................................
 153 
 

E. A Legacy of Suffering and Destruction ....................................................................... 154 
 

F. Corruption...............................................................................................................155 .....
 G. Language and Notional Barriers .............................................................................157 
 .....
 H. Cultural Blindness or a "West is Best" Mentality .......................................................
 158 

I. Sustainability and Resources .......................................................................................159 
 

J. Tyranny of Distance .....................................................................................................160 
 

K. Legal Obligations .....................................................................................................161 ....
 L. Unrealistic Expectations ..............................................................................................
 162 

VIII. Rule of Law Project Narratives ..........................................................................................
 163 

A. Rule of Law Operations in Southern Iraq During OIF-I ............................................. 163 
 

1. Advising Commanders ...........................................................................................164 
 

2. Planning .............................................................................................................167 ....
 3. Coordinating Among Participants in Rule of Law Operations .............................. 170 
 

4. Conducting Rule of Law Operations .....................................................................180 
 

B. Rule of Law Operations in North Central Iraq During OF-2 ..................................... 189 
 

1. Court Assessment Project ......................................................................................189 
 

2. Additional Courthouse Assessment Observations: ................................................ 197 
 

3. Themes...................................................................................................................
 204 
THIS PAGE INTENTIONALLY BLANK 
armed conflict, the Handbook is oriented toward rule of law operations occurring during and 

immediately following armed conflict, and 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. The rule of law cannot be made 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 the developing 

doctrine on Stability operations.' In order for rule of law operations to be effective, they have to 

fit within the larger framework of how the US military conducts the growing stability mission. 

Third, the Handbook is an acknowledgement that there exists no "cookbook" 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, with Chapters 11-V setting the stage for 

Chapter V1, which describes the planning and execution of rule of law operations. In this way, 

while Chapters 11-V should be read prior to Chapter VI, they may be most helpful during the 

planning and execution phases, as references. Chapters VII and VIII follow up with practical 

applications in specific contexts. 

Chapter I1 sets a theoretical framework for rule of law operations to give Judge 

Advocates to 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, while at the 

same time it suggests ways in which the theory can impact day-to-day operations. 

-

I Stability operations 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." JOINTCHIEFSOF STAFF,JOINTPUB.3-0, JOINTOPERATIONSGL-28 - GL-29 (17 

Sept. 2006). 
postconflictspecific reconciliation measures) may differ from the American legal system that 

US Judge Advocates are most likely to be familiar with. 

Chapter VI describes the planning process for rule of law operations as well as 

mechanisms for evaluating the efficacy of such projects. 

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

projects and is intended to provide more practical flesh on the theoretical framework laid out 

earlier in the book. 

Chapter VIII follows Chapter VII's practical focus with narratives from previously 

deployed rule of law practitioners. Although their experiences will differ substantially fiom 

recently or to-be deployed Judge Advocates, individual accounts provide the most practical, if 

potentially least generalizable, information about how rule of law operations actually take place 

in a deployed environment. 

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), 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), affecting 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 fiom 

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 
of national power to maintain or reestablish a safe and secure environment, provide essential 

governmental services, emergency infrastructure reconstruction, and humanitarian relief."' 

Although stability operations have particular emphasis during the later phases of the campaign, 

they will take place even during the initial combat 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,' and stability operations are 

critical to the final two phases of the campaign (Stabilize and Enable Civil ~uthorit~)~ leading to 

the campaign's termination and the redeployment of US forces.' . . 

The conduct of stability operations is in turn 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."' DOD Directive 

' See U.S. DEP'T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORTFOR 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). See also JOINTCHIEFSOF STAFF, JOINTPUB. 3-0, JOINT OPERATIONS V-1 (17 Sept. 

2006) (Stability operations "seek to maintain or reestablish a safe and secure environment and provide 

essential governmental services, emergency infrastructure reconstruction, or humanitarian relief."). 

JOINTPUB.3-0, supra note 1, at V-1 - V-2 (I7 Sept. 2006). 'Id. at GL-28 - GL-29. 

Id. at V-15. 

* Id. at N-29. 

As a matter of doctrine, joint operations have six phases: Shape, Deter, Seize the Initiative, Dominate, 

Stabilize, and Enable Civil Authority. Id. at N-26-29. 

'See id. at V-2, figure V-l (illustrating the balance of offensive, defensive, and stability operations in the 

different phases of major campaigns). See also id. at N-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 oriqnal). 

DOD DIR. 3000.05, supra note 1, para. 3.1. Stability operations, in turn,are a critical aspect of 

counterinsurgency operations (COIN). U.S. DEP'T OF ARMY, FIELD MANUAL 3-24 COUNTERINSURGENCY 

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."). Reference to how rule of law 

operations relate to COIN will be made as appropriate throughout this Handbook. 
in conducting stability and reconstruction activities," and virtually all stability operations will 

involve international and non-governmental organizations as participants. It is important to keep 

in mind not only the broader context of stability operations, but also the broader participatory 

base of non-US-military partners, who have differing priorities and operating procedures when 

conducting rule of law operations." 

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

part of stability operations 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 based 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 activities. 

I. 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. 

DOD DIR. 3000.05, supra note 1, para. 4.3. 

lo National Security Presidential DirectivemSPD-44, Management of Interagency Efforts Concerning 

Reconstructing and Stabilization, Dec. 7,2005. See also JOINTPUB. 3-0, supra note 1, at V-24 

(explaining that, while other agencies may have the lead, US military forces must be prepared to carry Out 

all aspects of stability operations). I' Chapter I11 deals explicitly with the issue of how best to work with other agencies, international and 

non-governmental organizations, and coalition partners in the context of rule of law operations. 

Chapter 11 -Defining the Rule of Law 4 
(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 coordinatedaction over time. 

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

should rule officials, includingjudges, as well as ordinary citizens. 

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

available to enforcethe law and should employ fair procedures.'3 

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 stability operations. 

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

important to rule of law efforts within stability operations 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 rightst4 

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.ls 

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

(1997) (footnotes omitted). 

j3 Id. at 8-9 (footnotesomitted). 14 Rachel Kleinfeld, Competing Definitions of the Rule of Law, in PROMOTINGTHE RULE OF LAW 

ABROAD: IN SEARCHOF KNOWLEDGE31,35 (Thomas Corothersed., 2006).

Compare, for example, the definition offered by the SecretaryGeneral of the United Nations, which, 

although written with post-conflictcircumstancesin mind, does not emphasize the role of security. See 

5 Chapter It - Defining the Rule of Law 
individuals have meaningful access to an effective and impartial legal system 

basic human rights are protected by the state 

individuals rely on the existence of legal institutions and the content of law in the 

conduct of their daily lived6 

This definition represents an ideal. The seven elements 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." 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 n~leof 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 projects 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 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 seven elements emphasize effects and values, ones that are 

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

Report of the Secretary-General: The Rule of Law and TransitiorralJustice in Conflict And Post-Co~~fTict 

Societies, U.N. Doc. S/2004/616,at 4 (2004): 

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. It requires, as well, 

measures to ensure adherence to the principles of supremacy of law, equality before the 

law, accountability to the law, fairness in the applicationof the law, separationof powers, 

participation in decision-making, legal certainty, avoidance of arbitrariness, and 

procedural and legal transparency. 16 Of the many definitions of the rule of law in common use, this one most closely hews to that suggested 

in JANESTROMSETH, WIPPMAN &ROSABROOKS, MAKERIGHTS?: BUII.DING THE FULEOF LAWAFTERDAVID

INTERVENTIONS

CANMIGHT

MILITARY 78 (2006). 


See STROMSETH, WIPPMAN&BROOKS,
 supra note 16,at 79; Fallon at 9. Indeed, given the value-laden 

characterof the factors, there is not even widespread agreement over how to measure deviation from 

them. Id. 

Chapter I1 - Defining the Rule of Law 6 
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," and even less 

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

structure, however, 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. 

See section V.G on Non-State Security Providers. 

Chapter II - Defining the Rule of Law 
prohibition has not stopped the militias from flourishing in that nation, and mher 

contributing to violence, instability and insecurity.21 Also, militias often operate 

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

insurgents, and other innocent civilians. Militias constitute a long term threat to 

law and order. 

Organized crime and criminal gangs contribute to dire security situations. 

Criminal gangs often engage .in kidnappings and robberies. In Iraq, they have 

targeted aid workers, translators, drivers, private contractors, aid workers, 

journalists, and others, as well professionals and individuals from wealthy 

farni~ies.'~In certain areas of Iraq, there have been reports of social freedoms 

being curtailed by roving bands of self appointed religious police.23 

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.24 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 intercorlnected 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 

l9 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]. 
 20 See IRAQ^ CONST.art 9. 
 21 Maples Statement, supra note 19,at 3. 
 22 Human Rights Watch, A Face and a Name Civilian Victims of Insurgent Groups in Iraq 20 (October 3, 
 

2005). 
 

23 Julian Borger, Oficial USAgency Paints Dire Picture of "Out of Control" Iraq, THE GUARDIAN 
 

UNLIMITED
 (Jan. 18,2006), available at 

http:llwww.guardian.co.uWinternationallstolO,, 1688677,OO.html. 24 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. 

Chapter 11 - Defining the Rule of Law 
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 decisionmaking 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, 

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. "[Tlhe abuse of public power for private gain"28 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 decisionmaking 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.29 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 

25 See STROMSETH, WIPPMAN &BROOKS,supra note 16, at 135. 26 Id. at 145-47. 

"See FM 3-24, supra note 8, 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."). 

28 Combating Corruption for Development: The Rule of Law, Transparency and Accout~tabilily ,p. 3 

(quoting World Bank, World Development Report 1997 (Washington DC: Oxford University Press 1997), 

p. 102). 
 29 Fallon,supra note 12, 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 at p. 85. 
 

Chapter 11 -Definingthe Rule of Law 
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 stability operations pertaining to law fi-equently 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.3' 

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.32 Any society that has 

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

subject of stability operations, 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 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.33 

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 

30 Fallon, supra note 12, at 20-2 1. 31 See generally A.E. Dick Howard, The Indeterminacy of Constitufions, 3 1 WAKEFORESTL. REV.383 

(1968).

32 H.L.A. HART,THECONCEPTOF LAW94-95 (2d ed. 1994) (describing the "rule of recognition" that 

societies use to identify law). 33 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, 

ORDERWITHOUT LAW:HOWNEIGHBORSSE'ITLEDISPUTES(1991). 

Chapter 11 - Defining the Rule of Law 10 
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 n~le 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 basic 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. 

Basic Human Rights are Protected by the State 

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

would agree, for instance, that a legal system in which judges applied the law as given to them 

and police arrested and incarcerated offenders without corruption or bias would nevertheless 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 basic human rights and dignities. 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 minority group) were considered 

personal property, to be openly bought and sold at market.34 It is meaningless to say that the law 

protects individuals without at least some concept of what it is that the law must protect. 

There is widespread disagreement, however, on exactly what rights the law must protect. 

Some, especially those active in the rule of law community, define the obligation as one of equal 

treatment regardless of gender or economic, racial, or religious status.35 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 ri hts substantively, for instance the right to 

security in one's person36 or the right to free speech,"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 

34 Universal Declaration of Human Rights art. 4, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. 
 

A1810 (Dec. 12, 1948) [hereinafter UDHR]. 
 35 UDHR art. 7; Kleinfeld, supra note 14,at 38. 
 36 U.S. CONST.amends. V, XW, sec. 5; UDHR art. 3. 
 37 U.S. CONST.amend. I; UDHR art. 19. 
 

Chapter I1 - Defining the Rule of Law 
may trigger restrictions on US and systematic mistreatment of citizens and prisoners is 

likely to 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 threaL4' 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!' 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!2 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 resistance43 

(and fuel insurgency).44It 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 

38 It is Army policy that respect for the full panoply of human rights should be the goal of the host nation" 
 as part of counterinsurgencyoperations. See FM 3-24, supra note 8, at D-8 (citing the United Nations 
 

Declarationon Human Rights and the International Convention for Civil and Political Rights as "guide[s] 
 

for the applicablehuman rights."). 39 See, e.g.,Leahy Amendment, Pub. L. No. 104-208,110 Stat. 3009-133 (1996). See getterally section 
 

V1.D. 
 

40 HART,supra note 32, at 22-24. 
 4' Id. at 54-58. 
 42 See US AGENCYFOR INTERNATIONAL DEVELOPMENT, GUIDETO RULE OF LAWCOUNTRY
 ANALYSIS: 

THE RULEOF LAWSTRATEGICFRAMEWORK7-8 (forthcoming2007); STROMSETH, WIPPMAN & 

BROOKS, supra note 16,at 75-76. 43 See JOINTPUB. 3-0, supra note 1,at V-26. 44 See FM 3-24,supra note 8, at 1-27. 

Chapter 11- Defining the Rule of Law 
is one level of success for a rule of law project, a society that truly lives under the rule of law is 

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

without invoking the judicial system.47 

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, and 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 fortnalist 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.4s Using the list of rule law 

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

concern, while the protection of basic human rights 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, and 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 

45 See HART, supra note 32, at 57-58. 

STROMSETH, WIPPMAN&BROOKS, supra note 16, at 78. 

47 Id, at 78-79. 48 See Paul Craig, Formalist and Substantive Conceptions ofthe Rule oflaw: An Analytical Franzework, 

1997 PUB.L. 467. 

Chapter I1 - Defining the Rule of Law 

46 
equal, less likely to result in controversy and confusion among both international and host-nation 

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 rite ria.^' 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.5' Similarly, formalist projects are frequently less likely to threaten the cultural identity of 

the host nation and its population than substantive projects.52 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 intemational support they require if they completely ignore substantive 

rights:' ,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 ways to undertake a rule of law project as there are definitions of the 

rule of law and organizations undertaking them. The nature of the rule of law efforts that Judge 

Advocates are part of will vary based on the nature of the operational environment. Ln 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 I1 are not likely models for future 

stability operations, suggesting an approach that is more openly cooperative with the host nation 

49 STROMSETH, WIPPMAN & BROOKS,supra note 16, at 70-71. 50 Robert Summers, The Principles of the Rule oflaw, 74 NOTREDAMEL. REV. 1691, 1709-10 (1991). 

Kleinfeld,supra note 14, at 38. 52 See id. at 38 (citing the example of gender equality as a threat to some conceptions of Islamic culture). 53 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 non- governmental community (the advantages of challenges of which are addressed below). 

Chapter I1 - Defining the Rule of Law 14 
y, p

and its institutions, but it is similarly impossible for a society to function or produce the 

economic prosperity necessary for the rule of law without a vibrant civil law system for 

managing property, handling commercial transactions, and addressing civil wrongs. 

Furthermore, because a basic level of not only physical security but physical and economic 

wellbeing is necessary for the rule of law, Judge Advocates working on rule of law projects may 

find themselves working on projects that do not have an obvious, direct connection to law, such 

as ensuring that clean water, food, and basic medical care is are available to the local population. 

In many nations, many industries are traditionally public, meaning that rule of law values are 

implicated in the operation of those industries. 

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 as an 

aspect of stability operations, the operational impact of rule of law operations, and the need to 

adopt an effects-based approach to the rule of law. 

1. Rule of Law Operations as an Aspect of Stability Operations 

Conducting rule of law operations within the context of stability operations requires that 

any rule of law effort be coordinated with other activities (such as security and the restoration of 

civilian infrastructure and essential services)55 and with other agencies. It is DOD policy that 

"[mlany 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."56 Thus, Judge Advocates can expect a 

54 STROMSETH, WIPPMAN &BROOKS,supra note 16, at 3. 

55 See id. at 9; JOINTPUB.3-0, supra note 1, at xii ("An essential consideration is ensuring that the longerterm 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 8, at 5-2 (the second stage 

of COIN "expands to include governance, provision of essential services, and stimulation of economic 

development."),

56 DOD DIR. 3000.05, supra note 1, para. 4.3. See also JOINTPUB. 3-0, supra note 1, 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 requiredlnecessary."). 

Chapter I1 - Defining the Rule of Law 
pp

Stability operations are a core US military mission that the Department of Defense shall 

be prepared to conduct and support. They shall be given prioriv comparable to combat 

operatiorrs and be explicitly addressed and integrated across all DoD activities including 

doctrine, organizations, training, education, exercises, materiel, leadership, personnel, 

facilities, and planning.58 

As DOD Directive 3000.05's placement of stability operations as having the same 

priority as combat operations suggests, stability operations, including rule of law operations, 

cannot be performed without a cost. 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 be devoted to combat 

operations or other stability operations, rule of law operations may impact traditional operations 

in other ways as well. 

First, just as the state's willingness to comply with law is a necessary step to developing 

the legitimacy of law, the regard US forces display for law is likely to be widely noted by the 

host nation population. 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. 

57 J-P3.0 at xxiv ("Consequently, the [Joint Force Commander] may need to realign forces and 

capabilities or adjust force structure to begin stability operations in some portions of the operational area, 

even while sustained combat operations still are ongoing in other areas. Of particular importance will be 

civil-military operations initially conducted to secure and safeguard the populace, reestablish civil law 

and order, protect or rebuild key infrastructure, and restore public services."); id. at V-15. 

DOD DIR. 3000.05,supra note 1, para. 4.1 (emphasis added). 

Chapter I1 - Defining the Rule of Law 16 
was a method for attorneys to help the local population while also improving their 

professional opportunities while helping local nationals who were illiterate or 

fearful of US forces. 

Second, US forces may need to alter their tactical stance in order to convey to the 

population that they are governing through law rather than merely through the threat of force. 

For example, from mid 2003 to late 2005, British commanders in southern Iraq encouraged 

patrols to adopt a "low key" posture typified by wearing berets instead of Kevlar helmets and a 

policy of interacting with the local population in an attempt to engender support.59 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 

acti~ities.~'This reduction is not only a matter of force economy. "When combatants conduct 

stability operations in a way that undermines civil security, they undermine the moral and 

practical purposes they ser~e."~' Dominating activities may actually thwart stability operations 

and hinder the ability of US forces to transition tasks to local civil authorities. 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, Restraint, Perseverance, and Legitimacy, in the 2006 version of 

JP 3-0.62 With regard to the role of Restraint in stability operations, Joint Publication 3-0 

explains: 

During stability operations, military capability must be applied even more prudently since 

the support of the local population is essential for success. The actions of military 

personnel and units are framed by the disciplined application of force, including specific 

ROE. These ROE often will be more restrictive and detailed when compared to those for 

sustained combat operations due to national policy concerns. Moreover, these rules may 

change frequently during operations. Restraints on weaponry, tactics, and levels of 

violence characterize the environment. The use of excessive force could adversely affect 

59 Interview with Lt Col Alex Taylor, British Army, in Charlottesville, Vir. (May 21, 2007). 60 JOINTPUB.3-0, supra note 1, at IV-26-IV-29 and fig.N-6. See also STROMSETH, WIPPMAN&

BROOKS,supra note 16, at 136 ("Winning wars and maintaining order are two very different tasks."). 
 6' FM 3-24, supra note 8, at 7-6. 
 62 JOINTPUB.3-0, supra note 1, at 11-2.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 16, at 135 ("[Slecurity cannot depend solely or even 
 primarily on coercion."). 

17 Chapter 11 - Defining the Rule of Law 
cooperation and persuasion rather than commanding and directing. 

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 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, whatever 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 

projects must be meaningful to those who would be governed by the legal system in question, a 

requirement that imposes substantial limits on the ability of commanders and others participating 

in rule of law projects to "do" rule of law. 

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 casua~ties.~' 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 

nation legal rules as host nation legal institutions assert their authority.68 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 likely to be realized only over the very long term, and 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 

63 JOINTPUB.3-0,supra note 1, at V-26. See also FM 3-24,supra note 8, at 1-27 ("Some of the best 

weapons for counterinsurgents do not shoot."). 64 JOINTPUB.3-0,supra note 1, at A-4 ("Committed forces must sustain the legitimacy of the operation 

and of the host government, where applicable."). 65 Id. at A-3; id. at A-4 ("Restricting the use of force, restructuring the type of forces employed, and 

ensuring the disciplined conduct of the forces involved may reinforce legitimacy."). 66 LT Vasilios Tasikas, Developing the Rule of Law in Afghanistan, The Need for a New Strategic 

Paradigm, ARMYLAW. (forthcoming July 2007). 67 See JOINTPUB.3-0, supra note 1, at A-4 ("Security actions must be balanced with legitimacy 

concerns.").

68 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. See section VIILB, note 

Chapter 11 - Defining the Rule of Law 18 
3. An Effects-Based Approach 

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 e/fects,6' not on the institutions that may exist 

following the completion of the project. 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 effort7' 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. By failing to focus on effects, some institutional 

projects may actually thwart the long-term adoption of the rule of law in a society. It may very 

well that, especially during early-stage 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 

69 ~rAn effect is a physical andlor behavioral state of a system that results from an action, a set of actions, 

or another effect." JOINTCHIEFSOF STAFF, JOINT PUB. 5-0, JOlNT OPERATlONS PLANNING111-12 (26 

Dec. 2006) (describing the relative role of objectives, effects, and end states in military planning). 70 Kleinfeld, supra note 14, at 61-62. 

Chapter I1 - Defining the Rule of Law 
"See Rule Of Law Lessons Learned MNC-I Rule Of Law Section Operation Iraqi Freedom 05-07 (Dec. 

10 2006): 

Since MNC-I uses an effects-based approach to their operations, the MNC-I RoL Section 

will need to continually emphasize the principle that RoL progress cannot be easily and 

quantifiably measured in days and weeks, rather, it is primarily a qualitative area 

measured in months and years. We would do well to heed the advice of T.E. Lawrence: 

"Better to let them do it imperfectly than to do it perfectly yourself, for it is their country, 

their way, and your time is short." 

Chapter I1 - Defining the Rule of Law 
maintain strong interpersonal relationships. This is true not only among the USG agency 

representatives, but also between those representatives and host-nation government officials, 

international community representatives, and Non-governmental Organization (NGO) 

representatives. 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. i 

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 influence 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, in order for 

rule of law mission to be legitimate, practitioners must keep in mind that the "rule of law" is 

conducted by host nation institutions, officials, and populace, with international and coalition 

entities providing only developmental support. Whatever the international or national mandate, it 

is necessary and critical to have host nation institutions and officials involved in all stages of rule 

of law operations. Thus, the rule of law practitioner must establish and maintain meaningful 

collaboration with key host nation players, giving local national institutions and officials as much 

responsibility as possible in running their own country's affairs. 

A. US Policy and Players -Interagency Coordination 

Joint Publication 3-08 defines "Interagency Coordination" as the "interaction that occurs 

between a encies of the USG, including the DOD, for the purpose of accomplishing an 

objective."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 

' JAMES DOBBINS, ET AL., THEBEGINNER'SGUIDETO NATION-BUILDING 6 (2007). 
 

JOINTCHIEFSOF STAFF, JOINT PUBLICATION
 3-08, INTERAGENCY, INTERGOVERNMENTAL 

ORGANIZATION, AND NONGOVERNMENTAL ORGANIZATION COORDINATION DURINGJOINT OPERATIONS 

1-1 (17 Mar. 2006). 
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 effectively and accurately 

advise the commander and execute rule of law related missions. '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. While 

understanding this interagency process may seem like an uninteresting exercise in drawing 

elaborate wiring diagrams and convoluted charts, the ramifications of an uncoordinated plan in 

post-conflict countries will undoubtedly be serious and dangerous. Working effectively with the 

interagency minimizes waste of limited resources, prevents redundancy in operations, increases 

legitimacy with the indigenous population, optimizes chances for stability and security, and 

prevents 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 govemment 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 

using armed forces to engage in nation-building, has acknowledged that the United States "must 

also improve the responsiveness of our government to help nations emerging from tyranny and 

war ... and that means our govemment must be able to move quickly to provide needed 

assi~tance."~The two directives that define the federal government's organization for stability 

operations are the National Security Presidential Directive 44 (NSPD-44) and Department of 

Defense Directive 3000.05 (DOD Directive 3000.05). 

1. National Security Presidential Directive 44 

On December 7, 2005, President Bush promulgated National Security Presidential 

Directive 44 (NSPD-44) entitled the "Management of Interagency Efforts Concerning 

Reconstruction and Stabilization." This Presidential directive affirms that stability operations as 

a central govenunental function that serves not only the nation's humanitarian values, but also 

US national interests, particularly in fighting "extremists, terrorists, organized crime groups, or 

'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/1e1ea~es/2005/05/200505 18-2.html 

Chapter 111 -Key Players 22 
NSPD-44 explicitly assigns 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-tom 

co~ntries.~The State Department is to serve 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 

reconci~iation."~To assist in the execution of this directive, the Office of the Coordinator for 

Reconstruction and Stabilization (SICRS) was created, and the Secretary was given the authority 

to use this element as the coordination lead. 

NSPD-44 establishes a Policy Coordination Committee (PCC)' for Reconstruction and 

Stabilization Operations, a formal interagency coordination mechanism to be co-chaired by the 

head of the State Department's Office of the Coordinator for Reconstruction and Stabilization 

and a member of the National Security Council staff This PCC is charged with overseeing and 

facilitating the integration of all military and civilian contingency planning. 

NSPD-44 further stresses coordination in post-conflict prevention and response between 

the State Department and the Defense ~eparhnent.~ Lastly, the directive highlights the 

requirement to develop a joint framework for harmonizing reconstruction and stabilization plans 

with military activities." 

2. Department of Defense Directive 3000.5 

Department of Defense has made 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) ~~erations."" The directive is an initiative to declare stability operations 

National Security Presidential DirectiveNSPD-44, Management of Interagency Efforts Concerning 

Reconshucting and Stabilization 1 (7 Dec. 2005). 

Id. 

Id. 'Id. 

Id. 

Id. 

lo Id. 

"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]. 

23 Chapter Ill - Key Players 
The directive places the Under Secretary of Defense for Policy (USD(P)) and the 

Chairman of the Joint Chiefs of Staff in charge of DOD stability operations preparedness.'7 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, which 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.18 

While the Directive acknowledges that many stability and reconstruction tasks are more 

appropriately carried out by civilians, it notes that this may not always be possible in chaotic 

environments or when civilian capabilities are unavai~able.'~ Accordingly, the Directive includes 

a long list of reconstruction and stabilization undertakings that US military must be trained and 

equipped to carry out, ranging from rebuilding infrastructure to reforming security sector 

institutions to reviving the private sector to developing representative 

The Directive calls on DOD to coordinate with Office of the Coordinator for 

Reconstruction and Stabilization (SICRS) and other civilian agencies and to support the creation 

of civilian-military teams in the field.2' 

3. US Officials Zttfluencing Post-Conflict Operations 

As explained in the previous section, the USG has promulgated guidance that embraces 

post-conflict operations. Today, there are an extensive number of US governmental officials who 

l2 ld.
 "Id. See also REPORT OF THE DEFENSE SCIENCEBOARDTASKFORCEON INSTlTUTIONALlZlNG


STABILITY OPERATIONS WITHIN DOD (Sept. 2005) (urging the Pentagon to accelerate its capabilities to 

conduct post-conflict stability operations). 

l4 DOD DIR. 3000.05, supra note 11, at 3. 

Is 1d. 

l6 1d. 

l7~d. 

l8 Id. 

l9 ~d. 

Z0 Id. 

2' Id. 

Chapter 111 - Key Players 
Joint Chiefs: J1-J8 

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 

Department of State (DOS) 

9 Secretmy ofstate 

The Director of US foreign Assistance (F) 

a Deputy Secretary of State 

Ambassador at Large for War Crimes Issues 

Assistant Secretary for Legislative Affairs 

Office of the US Global AIDS Coordinator 

Policy Planning Staff (Special Projects) 

Office of the Coordinator for Reconstruction and Stabilization 

Under Secretary for Management 

Representative to the President Management Council 

Under Secretary for Arms Control and International Security Affairs 

Assistant Secretary for Political-Military Affairs (Pol-Mil) 

Deputy Assistant Secretary for Plans, Policy and Analysis 

Political-Military Policy and Planning Team 

Director of International Security Operations (ISO) 

Office of Contingency Planning and Peacekeeping (CPP) 

a Under Secretary for Political Affairs 

Assistant Secretaries of Regional Offices (AF,EUR, NEA, WHA, EAP, 

SA) 

Country desk officers 

Office of International Organizations (10) 

Policy, Public and Congressional Affairs 

Under Secretary for Public Diplomacy and Public Affairs 

Bureau of International Information Programs 

Under Secretary for Global Affairs 

22 List modified from The Partnership for EffectivePeacekeeping, US GovernrneiztOfficials Who Impact 

Peacekeeping and PeacebuildingPolicy Decisions (Dec. 2004) available at 

http://www.effectivepeacekeeping.org/bn-us(last visited May 29,2007). 

25 Chapter 111 -Key Players 
Deputy Assistant Secretary for Regions (AFricdMEISouth 

Asia, LAIEuropeJEurasia) 

Deputy Assistant Secretary for Technical Assistance Policy 

Deputy Assistant Secretary for Trade and Investment Policy 

Deputy Assistant Secretary for Multilateral Development 

Institutions and Policy 

Department of Justice 

9 Attorney General 

Assistant Attorney General 

Deputy Assistant Attorney General 

Intemational Criminal Investigation Training Assistance 

Program (ICITAP) 

Office of Overseas Prosecutorial Development, Assistance, and 

Training (OPDAT) 

Federal Bureau of Investigations (FBI) Director 

US Marshals Service 

Bureau of Alcohol, Tobacco and Firearms 

Drug Enforcement Administration 

Federal Bureau of Prisons 

National Security Council (NSC) 


k National Securily Advisor 


,Policy Coordination Committee (PCC) for Reconstruction and Stabilization 

Operations 

Ad Hoc Special Coordinators 

Office of the President, Office of Management and Budget (OMB) 

9 Director of the OMB 

Director of the International Affairs Division 

US Agency for International Development (USAID) 

9 Administrator of USAZD 

Regional Bureaus (Africa, Asiamear East, EuropeIEurasia, Latin 

AmericdCaribbean) 

Bureau for Democracy, Conflict and Humanitarian Assistance 

Chapter Ill - Key Players 26 
Bureau for Economic Growth, Agriculture and Trade 

Bureau for Global Health 

Bureau for Legislative and Public Affairs 

C. US Governmental Agencies Involved in Rule of Law 

There is a whole host of governmental entities who 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 approach 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 is responsible for planning and implementing US foreign policy. 

As mentioned above, NSPD-44 assigns the Department of State as the pivotal organizer of US 

reconstruction and development assistance, including rule of law. The State Department is 

responsible 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 areas. Thus, the State Department is to serve 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 State Department will coordinate with 

the Defense Department 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 tasks include: 

Informing US decision makers of viable options for stabilization activities 

CoordinatingUS efforts with those of other governments, international and regional 

organizations, NGOs and private companies 

Seeking input from individualsand 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 

Chapter 111 - Key Players 
discussed below, was given specific legislative authority to execute many rule of law programs, 

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 cautious about trying to extrapolate programs and initiatives from 

those operations into other conflict settings where the military is deployed such as the Horn of 

Africa, Sub-Saharan Africa, Latin America and the Philippines. 

2. Office of the Coordinatorfor Reconstruction and Stabilizatiott 

The Department of State created the Office of the Coordinator for Reconstruction and 

Stabilization (SICRS) in order "to enhance our nation's institutional capacity to respond to crises 

involving failing, failed, and post-conflict states and complex emergencies."23Its mission is to 

"lead, coordinate, and institutionalize U.S. Government civilian capacity to prevent or prepare 

for post-conflict 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 economy."24 

Since it was created, SICRS has been pursuing an ambitious agenda with limited 

resources. These tasks include: 

Creating a monitoring system to identify states at risk of instability 

Developing a Strategic Planning Template for use in preparing and running 

missions, as well as a doctrine for joint civilian-military planning 

Building standing operational capabilities for rapid civilian response, including: 

diplomatic "first responders," enhanced technical capabilities within partner 

agencies; a wide network of civilian reservists; and a set of pre-positioned contracts 

Creating interagency mechanisms to manage operations, including in Washington 

at the interagency level and with the military at Regional Combatant Commands 

and in the field 

Providing consulting services for State Bureaus facing actual crise 

23 See Department of State, Office of the Coordinatorfor Reconstruction and Stabilizationwebsite, at 


http://www.state.gov/s/crs/(last visited May 29, 2007).
 24 Department of State, Fact Sheet, Office of the Coordinator for Reconstruction and Stabilization,March 


11, 2005 (SICRS) at http://www.state.gov/s/crs/rls/43327.htm(last visited May 29, 2007). 


Chapter 111 - Key Players 28 
unstable and may require stabilization and reconstruction. In addition to coordinating the overall 

USG response, SICRS is responsible for coordinating with foreign countries, the private sector, 

non-governmental organizations, and international organizations. Finally S/CRS is tasked with 

developing a strong civilian agency response capacity for reconstruction and stabilization 

operations. Planning for and coordinating the establishment of the rule of law in war-tom 

countries is one of the primary activities for which the SICRS has responsibility. 

3. B~lreaufor International Narcotics and Law Enforcement Affairs (ZNL) 

Within the State Department, the Bureau for International Narcotics and Law 

Enforcement Affairs (INL) also has significant responsibility for the actual implementation of 

rule of law initiatives. 

INL advises the Secretary of State, other bureaus in the Department of State, and other 

USG departments and agencies on the development of policies and programs to combat 

international narcotics and crime. INL programs support two of the 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. 

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 counterparts to reinforce 

partner governments' efforts to promote the rule of law. 

INL's programs and are tailored to bolster capacities of partner 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. These 

programs focus on interdiction capabilities, eradication, sustainable alternative development, and 

demand reduction. This includes reducing drug crop cultivation through a combination of law 

enforcement, eradication, and alternative development programs in key source countries as well 

as improving the capacity of host nation police and military forces to attack narcotics production 

and trafficking centers. 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. 

Chapter 111 - Key Players 
in human resource development. Rule of law is also one of USAID's core missions. 

USAID has rule of law and justice sector assistance programs in more than 100 countries. 

Ordinarily USAID provides its assistance through the use of private contractors. USAID funding 

for Democracy and Governance programs for FY 2007 is approximately $833 million. 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. 

USAID views rule of law as an essential component for security, as a basis for 

democratic governance, to protect human rights and resolve conflict, and for social and 

economic recovery. USAID views the successfbl establishment of the rule of law as having five 

essential elements. First, there must be a firm basis of public order and security. Next, that the 

public perceives the constitution, laws and legal institutions as having legitimacy. Also, that 

there must be an independent judiciary to provide checks and balances on other holders of 

power. Further, that the access to justice, due process, and human rights protection must be seen 

as fair. Finally, that the administration and operation of the legal system must have a reasonable 

level of effectiveness. 

USAID strategies to strengthen the rule of law typically include several aspects. Initial 

efforts by the Office of Transition Initiatives (USAID/OTI) focus on small, fast, flexible and 

high-impact activities to support transitions before longer-tern activities can get underway. 

DCHAIOTI 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. 

Longer-term efforts to establish the rule of law are canied out by the USAID Field 

Mission in country, with support from the Office of Democracy and Governance (DCHAIDG). 

The beginning is to support local efforts to place the rule of law on the political agenda of the 

country to be affected. 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. Since 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 refom. USAID assistance efforts are focused on 

reforming laws and legal procedures, in particular to introduce open trials, and public, oral and 

adversarial processes where defendants have the right to confront and challenge evidence and 

witnesses. Next is an effort to reform and strengthen the judiciary and judicial institutions 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 

Chapter 111 - Key Players 30 
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. 

The DOJ has an important role in helping to improve the legal and law enforcement 

systems of many countries through its numerous training programs. The DOJ rule of law focus is 

chiefly in the areas of criminal justice (courts, prosecutors), law enforcement, and security. DOJ 

rule of law programs are carried out in reconstruction and stabilization operations. .DOJ also 

provides substantial technical assistance through specialized functional bureaus such as the Drug 

Enforcement Agency, the US Attorney's Office, and the Bureau of Prisons, among others. DOJ 

provides direct protection and security assistance the US Marshals Service, and other agencies 

and bureaus within DOJ. Most of DOJ's development assistance and training is funded through 

INL in the State Department. There are several different components of DOJ engaged in rule of 

law, typically funded through INL or USAID. 

a) 	 Criminal Division's International Criminal Investigative Training Assistarrce 

Program (ICITAP) 

One of DOJ's agencies involved in rule of law is the International Criminal Investigative 

Training Assistance Program (ICITAP). ICITAP's rule of law mission is to serve as the source of 

support for 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. ICITAP'S activities have expanded to 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 modem police practices. 

ICITAP's training and assistance programs are intended to develop professional civilianbased law enforcement institutions. This assistance is designed to: (1) enhance professional 

capabilities to carry out investigative and forensic functions; (2) assist in the development of 

OFFICEOF DEMOCRACYAND GOVERNANCE,US AGENCYFOR INTERNATIONAL DEVELOPMENT, 

OCCASIONAL PAPERS SERIES, DOC. #PN-ACR-220, ACHIEVEMENTS IN BUILDING AND MAINTAININGTHE 

RULEOF LAW 2-6, (Nov. 2002). 

Chapter 111 - Key Players 

25 
Another DOJ entity is the Office of Overseas Prosecutorial Development, Assistance and 

Training (OPDAT). OPDAT rule of law goals are related to initiatives in intemational 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 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 intemational visitors each year. 

6. 	 United States Institute of Peace (USIP) 

The United States Institute of Peace is an independent, nonpartisan, national institution 

established and funded by Congress. Its goals are to help prevent and resolve violent 

intemational conflicts, promote post-conflict stability and democratic transformations, and 

increase peacebuilding 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 peacebuilding efforts around the globe 

In order 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 Temtories. 

Among the many specific roles and missions, USIP staff,and grantees are heavily involved in 

promoting the rule of law. 

The USIP is very concerned with the rule of law and engages in extensive activities and 

projects world-wide to assist in the establishment of the rule of law in post-conflict societies. 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 initial phase is to be focused on security and stopping criminal 

behavior. Post conflict states must provide their populations with security, stability, personal 

Chapter Ill - Key Players 
significantly enhanced.27 

The USIP also places particular emphasis on constitution-making in its rule of law 

projects. The USIP considers a new constitution to often 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 provides 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.28 

7. Department of Defense (DOD) 

The DOD's policy on rule of law operations is most completely stated in Directive 

3000.05 regarding Military Support for Stability, Security, Transition, and Reconstruction. As 

explained above, this Directive, applicable to all DOD components, situates rule of law 

operations within the larger field of stability operations. In addition to the immediate goals of 

providing security, restoring essential services, and meeting humanitarian needs, "the long-term 

goals are to develop local capacity for securing essential services, a viable market economy, rule 

of law, democratic institutions and a robust civil society."29 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 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. 

SeeUNlTED STATESINSTITUTE OF PEACE, SPECIALREPORTN0.104, ESTABLISHING THE RULE OF LAW 

IN IRAQ 2-3 (Apr. 2003). ''See UNITEDSTATESINSTITUTE OF PEACE, STABILIZATIONAND RECONSTRUCTION SERIES N0.2, 

TRANSITIONAL GOVERNANCE: FROM BULLETS TO BALLOTS1-5 (Jun.2006). 
 

See UNITEDSTATESINSTITUTE OF PEACE, SPECIALREPORT 107,DEMOCRATIC CONSTITUTION
 MAKING

(July 2003). 29 DOD Directive 3000.5, supra note 11, at 2. (emphasis added). 

Chapter 111 - Key Players 

26 
while 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. 

The DOD emphasis in the rule of law is to create security and stability for the civilian 

population by restoring and enhancing the effective and fair administration and enforcement of 

justice. 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 

actual rule of law operations are carried out by a whole host of military entities, including Judge 

Advocates, Civil Affairs, and Military Police. 

8. Judge Advocates 

The consequences for the JAG community of the Pentagon's recent embrace of stability 

operations cannot be fully realized at this point. However, one thing has become apparent as a 

constant in current military operations: Judge Advocates are conducting of rule of law operations 

in post-conflict Iraq and Afghanistan. Judge Advocates' involvement in rule of law takes on one 

of several roles, including 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: 

Advising Commanders on the operations that support rule of law initiatives 

Determining the capabilities and effectiveness of host nation legal systems 

Reviewing statutes, codes, decrees regulations, procedures, and legal traditions of 

the host nation 

Reviewing relevant laws and regulations for compliance with international 

standards 

Identifying and assessing indigenous public safety systems, services, personnel and 

resources 

Advising and assisting in the process of developing transitional codes and long-term 

legal reform 

Evaluating the personnel judicial infrastructure and equipment of the court system 

Chapter 111 - Key Players 
A big hindrance in coordinating [rule of law (RoL)] efforts within [MNC-I] was 

the lack of knowledge by the RoL Section as to where the incoming RoL JAs 

were being assigned. Even worse, the MNF-I SJA was not provided advance 

information of sister service JAs reporting into theater nor informed as to their 

duty assignments once they arrived. This resulted in several sister service JAs 

being assigned to non-JA positions for their entire tour, when they could have 

been better utilized in vacant RoL JA positions in the MNDs and Brigades. 

Another result was that several JAs that were assigned to RoL positions at the 

lower unit levels, such as CATAs, did not receive any support from the RoL 

Section and did not keep the RoL Section updated on their progress in their area, 

which led to duplication of efforts of the PRT RLAs and MND RoL JAs. 

To address this issue, each sister service that plans to deploy JAs to theater, needs 

to contact the MNF-I SJA about those pending deployments so that [MNC-I] and 

[MNF-I] can maintain awareness of all JA assets coming into theater. 

9. 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 the use of "functional area" teams working in 

the "public safety" specialty.3' As stated in CAjoint doctrine, the public safety team can: 

Provide technical expertise, advice, and assistance in identifying and assessing 

foreign nations public safety systems, agencies, services, personnel, and resources 

Determine the capabilities and effectiveness of public safety systems and the impact 

of those systems on civil-military operations (CMO) 

Advise and assist in establishing the technical requirements for government public 

safety systems to support government administration (police and law enforcement 

administration, fire protection, emergency rescue, and penal systems) 

Assist in employing public safety resources to support government administration, 

CMO, and military use 

30 From Rule Of Law Lessons Learned MNC-I Rule Of Law Section Operation Iraqi Freedom 05-07 

(Dec. 10,2006). 3 I JOINT CHIEFSOF STAFF,JOINT PUBLICATION3-57.1, JOINT DOCTRINE FOR CIVIL AFFAIRS,at V-1 W 

V-2 (14 Apr. 2003). 

35 Chapter 111-Key Players 
10. Military Police 

Military police (MP) units specifically train to support law and order missions. MP units 

are specifically trained 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 can be deployed in support of rule of law missions by training 

host-nation military personnel in the full spectrum of police tasks, including: 

Arrest and interrogation techniques 

Prison security and procedures 

Tactical doctrine 

Crowd control 

a Combating organized crime 

Forensics and evidencecollection 

Protection of sensitive facilities 

Election security 

VIP security 

11. 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. The 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."33 

32 Id. at V-3 to V-4. Army doctrine concerningrule of law operationsperformed by CA units is 


established in U.S. DEP'TOF ARMY,FM 3-05.40,CIVIL AFFAIRSOPERATIONS (Sep. 2006).
 "Defense Institute of International Legal Studieswebsite at http://www.dsca.mil/diils/(last visited May 


1, 2007). 


Chapter 111 - Key Players 
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 

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 with the pertinent members of the US 

Embassy Country Team. 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 the Judge Advocate will need 

to form a working relationship with are: 

The US AmbassadorIChiefof Mission 

The Deputy Chief of Mission (DCM) 

The Political Officer (POL OFF) 

The Regional Security OMicer (RSO) 

The Legal Attach4 (LEGATT) 

The Defense Attach6 (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 LEGATT can be an FBI 

Special Agent who, as part of his or her portfolio, conducts Department of Justice business writ 

large. International Narcotics and Law Enforcement Affairs (INL) is also active in of the rule of 

34 Id, 

Chapter 111 - Key Players 
problem areas. In any event, the DATT is a likely entry point for approaching and dealing with 

the Country Team. 

E. International Players 

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 intervention will 

involve some level of participation from coalition countries, the United Nations, and nongovernmental organizations. Thus, rule of law operations will require some level of integration 

of national and international efforts. 

Most major post-conflict operations will involve several entities to effectively implement 

rule of law programs. Theses international entities will undoubtedly involve major powers, such 

as the United States, United Kingdom, France, Germany, China, and Russia. It will also involve 

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. Lastly, the host-country itself will have a considerable involvement and 

input in post-conflict development and reconstruction, including rule of law. Each of these 

sovereigns will have different goals and different priorities. Judge Advocates must be able to 

work with these layers of bureaucratic machinery in order to gamer greater legitimacy, widen the 

burden-sharing, and earn local acceptance. 

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 required 

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 taking 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. 

I. UttitedNations 

Multidimensional UN operations assist efforts to preserve and consolidate peace in the 

post-conflict period by helping to rebuild 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. 

Chapter Ill -Key Players 
Helping the parties maintain stability and order 

Helping the state re-establish its authority and secure its monopoly over the 

legitimate use of force 

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. The US PERMREP is assisted at the US Mission to the UN by 

a military assistant who coordinates 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 conducts operations under the provisions of a resolution or mandate 

from the Security Council or the General Assembly. Mandates are developed through a political 

process which generally requires compromise, and sometimes results in ambiguity. As with all 

military operations, UN mandates that contain a US military component are implemented by US 

forces through orders issued by the Secretary of Defense through the CJCS. During such 

implementation, the political mandates are converted to workable military orders. 

At the headquarters level, the Secretariat plans and directs missions. Normally, the 

UNDPKO serves as the HQ component during contingencies involving substantial troop 

deployments. Some 'peace building' missions with small numbers of military observers are 

directed by UNOCHA. UNOCHA is a coordinating body that pulls together the efforts of 

numerous humanitarianlrelief organizations and is the vehicle through which official requests for 

military assistance are normally made. 

Field level coordination is normally assigned on an ad hoc basis; depending on which 

relief organization is playing the major role. The United Nations Office of the High 

39 Chapter 111 -Key Players 
fulfillment of the rule of law mission 

2. International Monetary Fund (IMF) 

The United Nations does not have all the capabilities needed for effective state-building 

and rule of law implementation. While the United Nations has the ability to perfom military, 

humanitarian, and political tasks, it generally shares responsibility for reconstruction and 

economic development with institutions such as the World Bank 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 and 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 

govenunent, 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. Also, 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, and here the IMF assesses the efficiency 

and integrity of the legal environment as it affects business. Next it assesses the law and order 

tradition. Then it assesses cormption in government, with particular reference to demands for 

bribes connected to import and export licenses, exchange controls, tax assessments and loans. 

Chapter 111 - Key Players 40 
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, 

he 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 

~tate."'~ 

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 righk3' 

The question of assignment of property rights and their legitimacy has been a problem for 

developing and former-communist countries. In Western Europe property rights evolved 

gradually and incrementally, however in transitioning and developing countries today, the 

challenge is expediting the process. The initial efforts to do this focused on privatization, which 

was expected to create a demand for property rights for private owners who would, in turn, be an 

economically and politically powerhl lobby to demand property rights institutions and the rule 

of law. 38 

35 SWATIGHOSHAND ATISH R. GHOSH,INTERNATIONAL MONETARYFUN, POLICY DEVELOPMENT AND 

REVIEW DEPARTMENT, IMF WORKINGPAPERNO. 0219, STRUCTURAL VULNERABILITIES AND CURRENCY

CRISES501-2 (Jan. 2002). 36 KARLA HOFF AND JOSEPH E. STIGLITZ, WORLD BANK, DEVELOPMENT ECONOMICS GROUP,WORLD 

BANKRESEARCHWORKING PAPER3779, THE CREATION OF THE RULE OF LAWAND THE LEGITIMACYOF 

PROPERTYRIGHTS:THE POLITICAL AND ECONOMIC CONSEQUENCES OF A CORRUPTPRIVATIZATION 7

(Dec. 2005). 37 Id. at 1-6. 38 Id. at 2-3. 

Chapter 111 - Key Players 
The North Atlantic Treaty Organization is a military alliance established in 1949 aAer 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 

consensus; consequently, all members have a veto. The NATO Council's oversight is more 

continuous, its decision-making more incremental then 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 govenunents 

more ready to commit troops to NATO for high-risk operations than to the United Nations. It 

also ensures that the resultant forces are often employed conservatively. 

National caveats limiting the types of missions to which any one member's troops may be 

assigned are a fact of life 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. 

NATO's policy on post-conflict security operations is can be found in MC 41 111 NATO 

Military Policy on Civil -Military Co-operation (CIMIC). NATO defines CIMIC as: 

[tlhe 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 that 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 this has been agreed by the military 

commander in accordance with the mission's mandate and OPLAN. 

Chapter 111 - Key Players 
ypy p, 

occurrence in post-conflict stability operations. 

Fundamentally, NATO commanders understand that tension among political, military, 

humanitarian, economic, and other components of a civil-military relationship is detrimental to 

the overall goal. Transparency in effort is considered vital in preventing and defusing such 

potentially volatile situations because transparency instills trust, increases confidence, and 

encourages mutual understanding. 

US Judge Advocates should understand that NATO staffs are comprised of individuals 

assigned to operational manning billets and often come from several different nations, each with 

varying traditions of law as well as different expectations regarding the involvement of military 

legal advisors in operations. 

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 be comprised of individual units, from different 

nations, again with varying expectations or understandings regarding 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 be assigned 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 significant 

outreach efforts being made 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 lawyering roles. 

F. Non-Governmental Organizations (NGO) 

NGOs are playing an increasingly important role in the international arena. 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 humanitarian or other assistance is needed. 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. 

Chapter Ill - Key Players 
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, prefening 

autonomous, impartial operations. This is particularly the case if US military forces are a 

belligerent to a conflict &the operational area. 

Most NGOs are outfitted with 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 military intend to take 

control of, influence, or even prevent their operations. Commanders and their staffs should be 

sensitive to these concerns and consult these organizations, along with the competent national or 

international authorities, to identify local conditions that may impact effective military-NGO 

cooperation. 

Further, NGOs frequently act to ensure that military actions in the relief and civic action 

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, and they are sometimes willing to share such information on the basis of collegiality. 

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. The creation of a framework for structured civil-military 

interaction 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, although it is important to remember that commanders are substantially 

restricted in what types of support they can provide non-federal entities such as NGOs. Judge 

Advocates should ensure that any support to NGOs complies with statutory and regulatory 

restriction^.^^ 

40 See e.g. Dep't of Defense,DOD 5500.7-R, Joint Ethics Regulation. 

Chapter 111 - Key Players 44 
ppp, p

When speaking about rule of law programs some coalition partners focus on civilian 

reconstruction and economical support.44 Military means are only seen as appropriate to end 

violence and establish conditions under which the causes of conflict can be addressed by civilian 

means.45 Some coalition forces may be reluctant to initiate laws, courts, and police reforms, but 

rather support host government reform efforts beneficial for the establishment of the rule of 

Consequently, France, for example, sees its contribution to the achievement of the nlle of 

law in 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 legal or technical kind.47 An additional example is the German 

approach to rule of law operations in post-conflict areas, which similarly focuses on technical 

and logistical support as well as support concerning judicial administration, administrative 

development, and medical 

As a result of different approaches, the structure of coalition forces being tasked with rule 

of law issues is also different. The focus on civilian reconstruction work done in connection with 

rule of law issues is linked for most coalition partners in an inter-ministerial approach. For some 

coalition partners, this inter-ministerial approach has resulted in the establishment of mixed 

military and civilian teams!' 

41 See CENTER FOR LAW AND MILITARYOPERATIONS, FORGED 
 IN THE FIRE 3 12 (2006) [hereinafter 


FORGED
 IN THE FIRE]. 42 See, e.g., MARKUS WCiLFLE, DIE AUSLANDSEINSATZE DER BUNDESWEHR116 (2005) (discussing 

Germany). 

43 Id. at 18-19. 44 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). 45 See German Action Plan, Civilian Crisis Prevention, Conflict Resolution and Post-Conflict 

Peacebuilding 10 (2004), available at http://www.nowar.no/documents/germanactionplan.pdf bereinafter 

Action Plan]. 46 Id. at 58. See also French Ministry of Foreign Affairs, Direction GCnkrale de la CoopCration 

Internationale et du DCveloppement (French International Cooperation) 3 1 (2005). 47 Id. at 32-33. 48 See Action Plan, supra note 45, at 19. 49 Germany has had positive experience establishing two mixed military and civilian "Provincial 

Reconstruction Teams" in Afghanistan since 2003. The concept of "Provincial Reconstruction Teams" 

45 Chapter 111 -Key Players 

I 
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.50 

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 kinds 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 be based on constitution, ordinary law 

or administrative regulations, like Rules of Engagement (ROE). 

Constitutional restrictions are often connected with the legality of an operation under 

international law and with the extraterritorial application of constitutional rights. The missing 

legitimacy, for example by a United Nations Security Council Resolution or by acting in selfdefense, might cause constitutional problems for some coalition partners in joining the 

operation." Different constitutional problems might be based on the extraterritorial application 

of constitutions. Although domestic laws and international treaties are often not applicable 

extratemtorially, or are ovemdden, for example, by resolutions of the United Nations Security 

Council, some coalition partners will be bound to corn ly with their constitutions, esp'ecially 

with regulations concerning human rights and freedoms. 5f 

In addition to constitutions, ordinary statutes often constitute restrictions on coalition 

operations. For the participation of some coalition partners, military operations need to be 

was originally developed by the US DOD in early 2003 and is executed also by Canada, which has sent 

24 Provincial Reconstruction Teams. See the Department of National Defence at 

http://www.forces.gc.ca/site/kprt-eprWprtrte.asp. 
 

See FORGED IN THE FIRE, supra note 41, at 69. 

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)).

52 See, e.g., German Constitution, Article 19, paragaph 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. 

Chapter 111 - Key Players 46 
entitled to refuse unlawful orders.54 The test of lawfulness includes generally the application of 

international law.55 

Furthermore, domestic penal laws may have an impact on coalition operations. The 

French penal law, for example, applies for crimes conducted by French citizens outside ~rance.'~ 

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 was carried 

out, 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. 57 

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 if it is overridden by any other 

international rule is an open question for coalition international lawyers. 

53 See, e.g.,German "Soldatengesetz" or the British Army Act. 
 54 See, e.g., French Statut Gtnkral des Militaires, Article 15;German Soldatengesetz, Article 11 (1); 
 

United Kingdom, Manual of Military Law, Army Act 1955, Section 34, footnote 3a. 
 55 See, e.g., French "Manuel de Droit des Conflicts Armts," (Handbook of the Law of War), ch. 
 

"Responsabilitt" [hereinafter Manuel de Droit des Conflicts Armts]; 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 2 1, 

2005, also examined the legality of the military operation in Iraq as a matter of international law 

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. 56 Manuel de Droit des Conflicts Armks, supra note 55, ch. "Responsabilitt ptnale". 

57 See, e.g., the German Handbuchfir den Rechtsberaterstabsoffizierim Auslandseinsatz. 

47 Chapter 111 - Key Players 
drafters of the UN Charter. It was originally envisaged that the action of the Security Council 

under Chapter VII would take, where necessary, the form of binding decisions. However, the 

Council found itself unable to act commonly on the basis of binding decisions as a result of the 

excessive use of veto during the Cold War. Thus, a device of recommending or authorizing 

member States to use all necessary means, including the use of force, was resorted toss' 

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 recommendation^,^^ a view with which the European Court of Justice has registered 

agreemenL6' Other corn men tat or^^^ and the England and Wales High Court and Court of Appeal 

endorsed the latter view by advancing the view that authorizing resolutions can override 

international conventional obligations pursuant to Article 103 of the UN 

Representatives of this opinion argue that only this interpretation ensures effectiveness to the 

measures of the Security Council in the field of maintenance of peace.64 However, this view 

corresponds, with many coalition partners practice, since States did not oppose such 

authorizations on the ground of conflicting treaty obligations.65 

Despite this, international treaties to which coalition partners are party still have some 

meaning for coalition operations on the basis of Security Council resolutions. Since not all 

treaties are overridden by Security Council resolutions. Furthermore, where a Security Council 

LJN 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."). 59 See Nils Blokker, Is the Authorizatiorr authorized?, 11.3 EUROPEAN JOURNALOF INTERNATIONAL LAW

542 (2000). 60 See B. SIMMA, ED, THE CHARTER OF THE UNITED NATIONS ­A COMMENTARY 1296, vol. 11, (2d ed. 

2002); see also Lauwaars, The Interrelatiotiship between United Natiorrs Law and the Law of Other 

Interrrational Orga~izatiotrs, 82 Mich. L. Rew 1604 (1984). 6' See Robert Kolb, Does Article 103of the Charter of the Utzited Nations apply only to Decisions or also 

to Authorizations adopted by the Security Couticil?, 64 HEIDELBERG JOURNAL 21,29 (2004). 62 See SIMMA, supra note 60, at 729. '' Al-Jedda v. secretary of Defence, England and Wales High Court and Court of Appeal, EWCA 1809 

(2005). 

"4 ~ee~olb, supra note 61, at 25. 65 See SIMMA, supra note 60, at 759. But see Kolb, supra note 61, at 27. 

Chapter 111 - Key Players 48 
within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. As 

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 temtory. However, the European Court on Human 

Rights in Strasbourg has accepted some exceptions from this general rule of exclusively 

temtorial 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.67 This was called 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 on vent ion.^' 

In Loizidou v. ~uuke~,~~ the European Court on Human Rights (ECHR) added to the 

concept of "actual authority" and the doctrine of "personal jurisdiction" to the concept of 

"effective overall control" and the doctrine of "temtorial jurisdiction." Thus, the court generally 

required a state's effective control of an area for the extratemtorial application of the ECHR. 

This new approach focused much stronger on territorial jurisdiction, rather than a personal 

jurisdictional approach. 

In Bnnkovic v. ~el~iurn,7~ the ECHR changed its jurisdiction significantly and cut back 

the extratemtorial application of the ECHR. This case concerned the killing of 16 individuals 

caused by a NATO air strike against the Serbian Radio and Television building during the air 

66 See England and Wales Court of Appeals (2006) EWCA which expressively states that UNSCR 1546 

(2004) ovenides only Article 5 (1) of the European Convention on Human Rights while the remaining 

regulations of the Convention retain their validity. 67 See Cyprus v. Turkey, European Commission on Human Rights, application numbers 6780174 and 

6950J75 of May 26, 1975, at 133 ("It is clear from the language . . . and object of this Article [I], 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."). 

See Stock6 v. Germany, European Commission on Human Rights, application number 11755185 of 

October 12, 1989 (concerning the transfer of a German citizen from France to Germany without his 

cognition and agreement). 69 See Loizidou v. Turkey, European Court on Human Rights, application number 153 18189 of November 

28,1996. 

70 See Bankovic v. Belgium, European Court on Human Rights (admissibility decision), application 

number 52207199 of December 12,2001. 

Chapter 111 - Key Players 
To ascertain a state's jurisdiction "actual authority" or "effective control," which the 

Court had not accepted in this case, is not enough. Moreover, the term jurisdiction has to be 

interpreted in a nonnative way, which means the effective control of one state over areas of 

another state needs to be legally justified regarding international law to create the former 

j~risdiction.~~ Such legal justification could result from a military occupation in-line with 

international law or a consent or invitation of the host nation. 

The Bnnkovic Decision was affirmed by the ECHR's decision in 0calan v. ~urke~.'~ The 

Grand Chamber of the Court emphasized the "jurisdictional link," which was that Ocalan was 

handed over from Kenyan to Turkish officials on board a Turkish airplane and therefore under 

"effective Turkish authority" and within the jurisdiction of the Turkish state. 

In the Issa decision of the European Court on Human Rights the Court rejected the 

approach of a normative interpretation of jurisdiction and turned back to the approach taken in 

the Loizidoujudgment, adopting the wording as used in the Loizidou case.14 

Over and above the decision in Loizidou, the Court clarified limiting Bankovic that the 

Convention rights and freedoms can apply outside the espace juridique of the Convention's 

member states. The future will show, if the European Court on Human Rights will follow the 

path of the Loizidou and Issa decisions or the more restrictive approach of the Bankovic decision. 

However, in each case the European Convention on Human Rights might have some influence 

on coalition operations. 

71 Examples of such jurisdictional links resulting in extraterritorial jurisdiction of a state are cases 
 

involving activities of diplomatic or consular agents abroad and on board craft and vessels registered in, 
 

or flying the flag of, that state. See Bankovic at para 73. 
 72 See Loizidou at para 52. (European Court had stated: "that the responsibility of a Contracting Party 
 

could Iso arise when as a consequence of military action -whether lawful or unlawful -it exercises 
 

effective control of an area outside its national territory."). 
 73 acalan v. Turkey, European Court on Human Rights, application number 46221199 of May 12,2005. 
 74 Issa and Others v. Turkey, European Court on Human Rights, application number 31821196of March 
 

30,2005. 
 

Chapter 111 - Key Players 50 
recontruction. 

Pursuant to the Bonn Agreement, the rule of law effort in Afghanistan was organized by a 

"lead nation" approach, with different countries taking the lead in developing different aspects of 

the rule of law in ~f~hanistan.~~ Germany became the lead nation for developing the Afghan 

police force, while Italy was given responsibility for developing the judicial sector. The Germans 

opened a police academy in Kabul to train new police officers, an effort that was eventually 

augmented considerably by the United States, which opened an academy designed to provide 

training to existing Afghan police officers.77 The Italians focused on building the judicial system 

at the local level by establishing a system of courts of first instance (the "district courts"), limited 

training programs for judges and prosecutors, and the adoption of a new criminal procedure 

code. All concerned agree that these judicial efforts were largely under-funded. The United 

States, while not the lead nation in any of these reforms, in addition to its supplementation of the 

German effort on police, also undertook considerable rule of law work in its efforts to establish a 

comprehensive system of military justice as part of its role as lead nation for the development of 

the Afghan National Army. The United Nations Assistance Mission in Afghanistan has proven 

largely ineffectual in the rule of law area, with most of the progress being made by specific 

reforms led by individual nations.78 

The split international effort has proven unwieldy for many reasons, since a rule of law 

effort has to address police and judicial reform in concert (not to mention prison operations, 

which were largely ignored under the Bonn Agreement framework). In addition, the division of 

tasks among nations did not necessarily match the structure of the Afghan government's legal 

administrative apparatus. A Judicial Reform Commission was created within the Afghan 

government and supported in particular by the Italians, although doing so created additional 

political difficulties within the Afghan government as the dominant participants in the Afghan 

legal system, the Ministry of Justice, the Attorney General, the Supreme Court, and the newly 

created Judicial Reform Commission struggled for control.79 Outside of Kabul, the rule of law 

effort is being conducted through US inter-agency Provincial Reconstruction Teams (PRTs) that 

75 See Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of 

Permanent Government Institutions, U.N. Doc. Sl2001/1154 (Dec. 5,2001). 76 CENTERFOR LAWAND MILITARY OPERATIONS, LEGALLESSONS LEARNEDFROM AFGHANISTAN AND 

IRAQ, VOLUME11,267 (2005) [hereinafter OEFIOIF, VOL. 14. 

77 LAURELMILLER& ROBERTPERITO.UNITED STATESINSTITUTEOF PEACE. SPECIALREPORT 117.

ESTABLISHING THE RULEOF LAW 1N AFGHANISTAN 11-12 (Mar. 2004) (hereinaft& Afghanistan ~eport). 

78 Id. at 4. 79 Id. at 6 

Chapter 111 - Key Players 
unprecedented progress was made in achieving coordination and cooperation between USG 

agencies and various international community donor nation representatives and nongovernmental organizations (NGOs). The impact of such cooperation between organizations 

with such diverse (and often competing) national and agency interests, statutory authorities, 

funding levels, and agency representative subject-matter expertise levels has been significant 

assistance in the delivery of justice services at both national and provincial levels in 

~f~hanistan.''Although such assistance marks merely a beginning in the much greater context 

of Afghan rule of law buildinglrebuilding needs, it is nonetheless instructive on the effects of 

positive interagency relations in the post-conflict operations in general and rule of law operations 

in specific. 

6) US Lead Agency Leadership and Interagency Particiption 

In early 2006, a Special Counselor on the Rule of Law was appointed by the DOS to 

coordinate interagency rule of law efforts in Afghanistan, to assure that gaps and overlaps in 

such efforts were corrected, and to assist in the development of a broader USG rule of law 

agenda. The first Counselor held the title of Ambassador from a previous posting and while 

effective, was only Special Counselor for less than 4 months. A committees2 of representatives 

from each USG agency involved in rule of law activities was organized and was chaired by the 

Special Counselor, who was subsequently replaced by a senior lawyer who currently holds the 

title of Rule of Law Coordinator. He is supported by a Deputy Coordinator, who, while not a 

Id. at 4. 81 The formal state-run justice system in Afghanistan has been almost wholly dismantled by nearly 

continuous war and internal conflict since 1979, when the forces of the former Union of Soviet Socialist 

Republics invaded Afghanistan and continuing through the internal strife caused by the rise of the 

mujaheddin and the takeover by the Taliban. This lack of an effective formal legal system has been 

marked by rampant corruption at all levels of government, the destruction of all legal infrastructure, the 

lack of any meaningful training for judges and prosecutors, and the complete absence of defense counsel 

to represent accused persons in criminal cases. Furthermore, there is no reliable land-titling system, no 

enforcement mechanisms for civil judgments, and no effective oversight for the treatment of incarcerated 

persons and the enforcement of human rights -either locally or nationally. In response to the lack of a fair 

and trust-worthy justice system, especially at the provincial and district levels in Afghanistan, many 

Afghans have returned to the shuras (councils of tribal elders) to resolve legal disputes on an informal 

basis. Such shuras do not apply positive law (even if such law exists), have little or no education or 

training, are often arbitrary in their decisions, and order compensation (such as the exchange of female 

relatives) that violates international human rights standards. 

82 The Special Committee on the Rule of Law meets weekly at the US Embassy Kabul to discuss issues 

and resolve conflicts. 

Chapter Ill - Key Players 52 
Special Counselor on the Rule of Law framework, the common goals of the group dictated 

essential information-sharing, as well as the sharing of assets and capabilities. For example, a 

contractor for one USG agency had superior translation services available. Another agency, 

greatly in need of such services on a time-sensitive basis, was able to access those translation 

capabilities by the use of a Memorandum of Understanding between the agencies. Informationhoarding, misinformation, and isolation of effort by any participating agency inures to the 

detriment not only of the group and its goals, but also to the agency itself and its goals. Of 

course, it is important for the practitioner to note that research must be conducted to assure that 

no agency implementing or fiscal laws are broken when contemplating such an agreement. 

US military forces in Afghanistan now operate under ISAF, which supports the PRTs 

directly. Folding the US military mission under ISAF also means that DOD support for US rule 

of law efforts must also be coordinated with the larger military effort in Afghanistan. 

2. 	 Iraq 

a) 	 A Non-UN Model 

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 inte ated approach to rule of law programs in Iraq is essential and does not exist at 

present.""The United Nations now maintains a specific operation for Iraq (the United Nations 

Assistance Mission for Iraq), as does the European Union and several ~~0s.'~ However, with 

the continued insecurity, few non-military international players are involved in rule of law 

operations. 

b) 	 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 operate the Iraqi 

justice system.85 In the early days of the war, that effort was undertaken by division SJA offices 

''Office of the Inspector General, Inspection of Rule-of-Law Programs, Embassy Baghdad 1 (2005) 
 

available at http://oig.state.gov/documents/organizat55815.pdf 
 

84 MNF-I (OSJA) Rule-of-Law Programs in Iraq: March 2006 Inventory 5-7 (2006) (hereinafterMNF-I 
 

Rule-of-Law Inventory). 
 

OEFIOIF, VOL.11, supra note 76, at 253. 

Chapter 111 -KeyPlayers 
I. Interagency Process Case Studies from Afghanistan 

It is critical that the rule of law practitioner be alert for opportunities to build on the 

successes of other agencies and organizations in post-conflict operations to provide a greater 

benefit to the host nation than such contributions might otherwise provide if made separately and 

without coordination. In post-conflict Afghanistan, senior rule of law personnel in the Combined 

Forces Command - Afghanistan (CFC-A), like every other USG agency, developed strategic 

goals based upon commanders' guidance, rule of law regulatory authorities, funding constraints, 

treaties and international agreements, and host-nation priorities. However, in the fluid rule of law 

environment of post-conflict Afghanistan, unique opportunities arose - almost spontaneously ­

where- individual agency efforts conjoined and complemented each other so that, in the 

confluence, much more was achieved by building on the prior successes of others. 

a) Wardak Model Justice Project 

Nowhere was the interagency success more evident than the justice sector achievements 

in the Wardak province known as the Wardak Model Justice Project. In late 2005, the Justice 

Sector Support Program (JSSP), a contractor of the DOS International Narcotics and Law 

Enforcement Affairs Bureau (INL), began a training program for provincial and district level 

judges and prosecutors in Maydan Wardak. Almost simultaneously, but without advanced 

coordination, DOD rule of law and CA personnel teamed up to build a justice administration 

building in Maydan Shar. Using CERP" funds, available to tactical commanders for urgent and 

humanitarian rebuilding projects in post-conflict Afghanistan and Iraq, the CFC-A rule of law 

and CA team obtained the blueprints for a generic administration building from USAID. USAID 

was using the blueprints to build up to 40 provincial courthouses throughout Afghanistan. Using 

these blueprints, CFC-A began construction in early 2006 on the justice administration building 

in Maydan Shar. 

Momentum gathered as the people of Maydan Wardak generated more enthusiasm for the 

improvements being made. The USG agencies began to look more carefully at each other's rule 

of law activities in Maydan Wardak, and, aided by strong leadership on the Special Committee 

for the Rule of Law began a concerted coordination effort to build on those successes. Lessons 

86 Id. at 254-55. 87 See MNF-I Rule-of-Law Inventory, supra note 84 at 21-24. 

Commander's Emergency Response Program, see OPERATIONAL LAWHANDBOOK, ch. 11, paragraph 

IX.C.4 (2006),for a fulldiscussion of CERP authorities, implementation, and regulatory guidance. 

Chapter 111 - Key Players 54 
late 2006 that it would build a new, state-of-the-art prison and national corrections training 

facility in Maydan Wardak. The result of the ongoing combined efforts of these agencies was the 

Wardak Model Justice Project, the name reflecting the goal of the agencies involved that the 

justice system in Maydan Wardak should be rebuilt to serve as a model for the international 

community and the GoA.for such improvements in other provinces,. 

Interagency cooperation and communications between the agencies involved in Wardak 

continues in 2007. A group of agency representatives and provincial justice and government 

officials gathers monthly in Wardak to discuss problems with and future plans for further 

expansion of the Wardak Model Justice Project. Visibility on this project remains high as the 

provincial governor continues to chair each monthly meeting. Participants from all USG 

agencies are invited to these meetings, as well as representatives of the international community 

and various NGOs. The recently anived Turkish Provincial Reconstruction Team (PRT) brought 

a police training team with them, and this program has been incorporated into the Wardak Model 

Justice Project. Similar efforts are being planned for Nangarhar, Bamyian, and Logar provinces 

as part of w wider DOS strategic plan for implementation of its rule of law program. 

b) Provincial Justice Conferences (PJCs) 

Two of the most persistent obstacles to the establishment of rule of law in Afghanistan 

are the inability to extend the reach of the central Government of Afghanistan (GoA) in Kabul 

into the provinces and the persistent and pervasive corruption at all levels of government. Both 

problems arise from a lack of communications infrastructure, difficulty of travel, security 

instability, inadequate salaries for government and justice officials, and lack of education and 

training among provincial government and justice officials. 

The Provincial Justice Conferences (PJCs) program attempts to alleviate a measure of 

these problems by bringing GoA justice officials ftom Kabul to meet their counterparts in the 

provinces to discuss the obstacles to delivery of justice services to the province and to identify 

solutions that can be instituted expediently and in a cost-effective way. Follow-up PJCs are 

generally scheduled within a period of three to six months to check on progress made on the 

identified solutions and to discuss outstanding issues. One essential key to a successful PJC has 

been the invitation and inclusioll of all interested USG agencies, the international community, 

and NGO representatives. Each agency or organization has the benefit of significant, specialized, 

and diverse experience. With the inclusion of as many subject-matter experts as possible, new 

ideas may emerge to correct persistent problems. 

Chapter Ill -Key Players 
vy pvgvgv, j

officials, and USGIintemational participants are presented. After a communal lunch, hosted by 

one or more of the USG participants, conferees are divided into groups representing their 

individual justice interests - police, judges, prosecutors, defense counsel, and prison 

administrators. These groups discuss specialized problems and their potential solutions. The 

small groups take notes on their discussions from which a work plan can be developed. Finally, 

the small group leaders from either GoA or the provincial government present summaries of their 

discussions to a final general session at the end of the day. 

Organization of a PJC in Afghanistan is a difficult, time-consuming, and complex task 

for the rule of law officer. It is critical that the rule of law practitioner begin the preparations and 

planning for a PJC early and maintain consistent coordination with everyone involved in the 

planning. At the central GoA level, transportation for GoA justice officials must be arranged; 

invitations and agendas in DarilPashto and English must be delivered to all participants; funding 

for the lunch must be obtained, if needed (typically using the Command's Official 

Representation Funds); and coordination with organizers at the provincial level must be 

maintained. In the PJCs conducted during the period of 2005-2007, much of the organization 

tasks at the provincial level were accomplished by the Provincial Reconstruction Teams (PRTs). 

A PRT action officer was assigned, and he or she made local arrangements with the governor 

and justice officials; arranged for meeting space and lunch catering; arranged for security forces 

to protect the meeting facility and participants; provided travel routes and grid coordinates for all 

meetingtour locations; and supplied intelligence on security and logistics issues in their area. 

89 Ghami, Nangarhar, Parwan, Logar, Bamiyan and Balkh. 

Chapter 111 - Key Players 56 
Some of the norms and mandates of these varied disciplines apply universally, requiring 

Judge Advocates ensure compliance in all operations. Other disciplines, however, are quite 

limited in application. The extraterritorial setting of most modem stability operations, for 

instance, calls into question the relevance and applicability of many legal frameworks. 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. 	 Identifiing 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 spatial limitations 

should be not used as an authoritative guide. 

I . 	 UN Mandates 

a) 	 UN Securiv Council Resolutions 

The UN consists of 192 member states. Indeed, very few states are not parties to the UN 

Charter. The Security Council is the principal organ within the UN with primary responsibility 

for the maintenance of international peace and security.' Chapter VII of the UN Charter 

enumerates the Council's compulsory powers to restore international peace and security. 

Security Council Resolutions require support from nine out of fifteen members, provided none of 

the five permanent representatives2 votes against or vetoes the proposal. Pursuant to Article 25 of 

the Charter, UN members are required to honor and carry out Security Council resolutions. 

' U.N. CHARTER art. 24(1). 
 

USA, Russia, The United Kingdom, China and France. 
 
The former providing for the pacific settlement of disputes, the latter permitting action with 

respect to threats to the peace, breaches of the peace, and acts of aggression. 

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, human rights, as well as goals related to self-determination. UN Security Council 

Resolution 1483, regarding the reconstruction of Iraq, is representative.5 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 

exec~tion.~ 

Judge Advocates may find, within UN Security Council resolutions, mandates or 

directives that are in apparent conflict with pre-existing or concurrent legal norms. UN Charter 

article 103 directs Member States confronted with competing legal duties to give priority to 

obligations arising under the Charter. Judge Advocates should identify such conflicts early, 

alerting technical legal channels at the highest levels. Resolution of competing legal duties may 

ultimately require political as well as legal determinations. 

"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. CHARTERart. 2(4). 'See G. A. Res. 2625 (XXV), U.N. Doc. N8082 (1970). 

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. SIRES11483 (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 

Securily Council Resolution 1483, U.N. Doc. Sl20031715 (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. 

See Sec Gen's Comment on UNSCR 1483; Report of the Panel on United Nations Peace Operations 

(The Brahimi Report), A1551305 - S/2000/809 (2000), available at 

http://www.un.orglpeace/report~Ipeace~operations/docsl~ll~r~ort.h~. 

Chapter 1V - Legal Framework 58 
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. 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) Resolutionspassed under Chapter VIZ 

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 modem jus ad 

bellum. The prohibition on UN intervention in domestic affairs of a nation is specifically 

excluded in relation to action taken under Chapter VII, which are predicated on threats to the 

peace, breaches of the peace, or acts of aggression.' 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. 

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."g 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. 

Article 41 allows the Council to require Member States to apply affirmative measures 

short of the use of force. Theses measures include, but 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."1° 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 

'U.N. CHARTERart. 33(1). 

U.N. CHARTERart. 2(7). 

U.N. CHARTERart. 39. 

'O U.N. CHARTERart. 41. 

Chapter 1V - Legal Framework 
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 hgolaI3 and those against the ~aliban'~ 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 temtory 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 canied 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 

through subsequent Security Council resolutions. Mandates subsequent to successful decisive 

operations may include broader developmental and transformative goals.'' 

2. Mandates Pursuaat to Bilateral and Multi-lateral Agreemet~ts 

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. 

"U.N. CHARTERart. 42. 

l2Id. 

l3Most recently, UN Security Council Resolution 1295 established a monitoring mechanism to supervise 

implementation of previous Security Council resolutions issued against UNITA. U.N. Doc. SlResl1295 

(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. 14 The Taliban were not generally recognized by the International Community to be the legitimate 

Government of Afghanistan and as such were "non State actors". 15 See fn.5. 

Chapter lV - Legal Framework 
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 fiom such agreements 

through regional and country bureaus. 

3. Mandatespursuant 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 ops. Fiscal law restrictions will 

undoubtedly impact mission planning and exe~ution.'~ Other reporting and operating 

requirements, such as human rights Leahy amendmenti7 vetting should be anticipated as well. 

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.I8 

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. 

l6 See section VLD. 

I' Pub.L. No. 104-208, I10 Stat. 3009-133 (1996). 

See U.S. DEP'T OF DEFENSE, DIR. 3000.05, MILITARY SUPPORTFOR STABILITY, SECURITY, 

TRANSITION AND RECONSTRUCT~ON (SSTR) OPERATIONS, para. 4.2 (28 Nov. 2005). 

61 Chapter IV - Legal Framework 
The majority of the modem 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 bihrcation 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 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 dejure 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. 

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 ClL. 

Chapter IV - Legal Framework 
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 

interna'tional 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 

~~erations".'~ 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 la 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. 

2. OccupationLaw 

Though largely in the latter half of the twentieth century, occupation law has experienced 

a recent revival in both international practice and litigation.20 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 

temtory and persons. These include responsibilities for food and medical supplies, hygiene and 

public health. 

l9 U.S.DEP'TOF DEFENSE, DIR.2311.01E,DOD LAW OF WARPROGRAM, para. 4.1 (9 May 2006). 20 Adam Roberts, What is a Military Occupation?, in THEBRITISHYEAR BOOK OF INTERNATIONAL LAW 

(1985); Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human 

Rights, 100 AM. J. INT'LL. 580, (2006). 

Chapter IV - Legal Framework 
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 

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 art^"'' and with respect to "[plersons . . . in the hands of [an] . . . Occupying Power of which they are not national^."'^ 

2' Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2. 

22 ~d.:art. 4. 

Chapter IV - Legal Framework 64 
opeatos, Judge dvocates wd suppot oappcatoooccupatoaw beyod ts ega

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 

batt~efield.~~ 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 intemational law generally governs relationships between states, human rights 

law, though also international law, regulates relationships between states and individuals. While 

the content and character of human rights law has expanded greatly, three principles restrict the 

relevance of human rights law during US military operations: First, the US regards most human 

rights law as non-extraterritorial. That is, under the US view, the majority of human rights law 

obligations do not extend beyond the boundaries of the United States. Second, during combat 

operations the United States 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. Finally, the US and many other states view human rights 

treaties as non-self-executing -they require implementation through constitutional or legislative 

procedures. For these reasons, US armed forces have given comparatively little attention to 

human rights law as such.25 

23 JEAN-MARIE HENCKAERTS &LOUISE DOSWALD-BECK,USTOMARYINTERNATIONAL HUMANITARIAN

LAW (2005). 24 U.S. DEP'T OF ARMY, FIELD MANUAL 27-10 LAW OF LANDWARFARE352(b) (18 July 1956). 25 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 intemational 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 

Occupation99 AM. J. INT'L L. 119 (2005). 

Chapter 1V - Legal Framework 
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. Examples include the European Convention for the Protection of Human 

Rights and Fundamental Freedoms (ECHR) of 1950;~ the 1966 International Covenant on Civil 

and Political ~i~hts? the 1966 International Covenant on Economic, Social and Cultural 

~i~hts;~ and the 1984 UN Convention against ~orture." Beginning in the late twentieth century, 

the United States ratified a number of international human rights treaties. The US, however, has 

consistently restricted application of these instruments to its own territory. Through reservations 

and through precise interpretation of the treaties themselves, the US insists that its armed forces 

are not technically bound by human rights treaties when operating extraterritorially. 

This nanow 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. 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 

ratified by the host state. 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. 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. 

b) Customary International Law 

The Judge Advocate General's Legal Center and School has consistently included 

customary human rights norms as part of the legal framework applicable in all operations. There 

Chapter IV - Legal Framework 
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 

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. 

Chapter IV - Legal Framework 
THIS PAGE INTENTIONALLY BLANK 

Chapter IV - Legal Framework 
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 influential participants in the legal system not usually considered by lawyers: 

civil society and non-state security providers. 

A. 	 Legal Institutions 

A legislature is a representative body that makes statute law through a specified process. 

Although many deployed Judge Advocates will have little contact with the legislative 

side of rule of law operations, 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 force^.^ 

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 

' See BRIANZ. TAMANTHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 133 (2004). 

Id. at 138. 'See JANESTROMSETH, DAVIDWIPPMAN &ROSA BROOKS, CAN MIGHT MAKERIGHTS?: BUILDINGTHE

RULE OF LAW AFTER MILITARY INTERVENTIONS 323 (2006). 

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. 
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.' 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 mode~s.~That does not mean that US sources should be 

disregarded, and several organizations, including the American Law Institute and the American 

Bar ~ssociation'~ produce model acts for legislatures. 

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. 

See, e.g., U.S.CONST.art. I, sec. 7. 

See, e.g., Parliament Act 1949, 12, 13 & 14 Geo. 6. c. 103 (Eng.). 

See, e.g., European Commission Regular Reports on Romania 2000-2002 (noting with alarm the 

widespread use of presidential decree by Romania). 

The experiences of those founding the ANA reflect the problem well. See MAJ Sean M. Watts & CPT 

Christopher E. Martin, Nation Building is Afghanistart -Lessons Identified in Military Justice Reform, 

ARMY LAW. 1 (May 2006). 10 See www.ali.org and www.abanet.org. 

Chapter V - Context 
y y g g p

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." The latter is a reconstruction 

mission that requires a broader understanding of the overall reconstruction mission and will 

involve involvement from a variety of participants, DOD, other USG agencies, host nation, and 

10s and NGOs. In support of both missions, Judge Advocates may be required to advise on court I 

structures, practices and procedures as well as assessing and analyzing the ongoing performance 

of such systems, and in conducting both missions Judge Advocates need to keep 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 

justice in secret. The right of an individual to know promptly the nature of the allegations is a 

"See U.S.DEP'TOF ARMY, PAM27-9-2, MILITARY JUDGES' BENCHBOOK FOR PROVOSTCOURTS(4 Oct.

2004). 

71 Chapter V - Context 
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. 

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 

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 

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.htm1. The right is expressly protected in 
 

Intemational Human Rights treaties. See International Covenant on Civil and Political Rights, art. 14; 
 

European Convention on Human Rights, art. 6. 
 

l3 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. 
 l4Eighth Congress on the Revention of Crime and the Treatment of Offenders, Havana Cuba 1990, 
 

Guidelines on the Role of Prosecutors, available at http://www.unhchr.~h/htm1/menu3/b/h~comp45.htm. 
 

l5The International Association of Prosecutors was established in June 1995 to promote and enhance the 
 

standards which are generally recognized internationally as necessaly for the proper and independent 
 

prosecution of offenses. See http://www.iap.nl.com/stand.2.htm. 
 

Chapter V - Context 72 
no prior professional experience as judges. They were appointed to initial twovear 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 froman objective viewpoint, that is, 

it must offer sufficient guarantees to exclude any legitimate doubt in this respect." 

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. 

Judicial Education in Afghanistan 

Judges from many of the provinces of Afghanistan in 2003 had received less than 

a high school education." Priority for those seeking to improve aspects of the rule 

of law was, therefore, concentrated on creating a widespread program of judicial 

training.Ig 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-cormption, 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 1985~' which along with the Bangalore Principles of 

16 A system of proportional representation may be useful in providing representation proportionate to the 
 

ethnography of a state. 
 

l7 See R. v. Dundon EWCA 621 (2004), Grieves v. United Kingdom, 39 Eur. H.R. Rep. 2 7 69 (2004). 
 

USAID, GENERAL ACTIVITY REPORTFOR 8 -28DECEMBER2005. 

l9 Training sessions were held at the Supreme Court for some of Afghanistan's least educated judges from 

Kapisa, Parwan, Ghami, 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 40132 of 29th November 1985 and 401146 of 13th December 1985. 

Chapter V -Context 
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 
 1executive. I 
 

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 ii 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. 

21 BANGALORE PRINCIPLES OF JUDICIALCONDUCT(2002), available at 

http://www.ajs.org/ethics/pdfs/Bangalorerinciples.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 fiom 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). 23 For information on vetting public employees see OFFICE OF THE UN HIGH COMMISSIONER FOR HUMAN 

RIGHTS. RULEOF LAW TOOLSFOR POST-CONFLICT STATES-VE~ING: AN OPERATIONAL FRAMEWORK 

(2006), available at http://www.ohchr.org/english/about~publicationsdocs/eoflaw-Vettingen.pdf For .

further information about the ICTJ research project on vetting and additional guidelines being developed 

see http://www.ictj.org/en/resear~b/~rojects/ve~ing/inde&l. 

24 Efforts to reconstruct courthouses and refurbish others were estimated in 2005 to amount to $62.8 

million. US DEPARTMENT OF STATE,COUNTRYREPORTSON HUMAN RIGHTS PRACTICES 2005 -IRAQ. 

Reviews conducted in Iraq suggested that almost all court buildings lacked adequate perimeter and barrier 

protection. 

Chapter V - Context 74 
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 

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 

poIice 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. 

25 See U.S. DEP'TOFARMY,FIELDMANUAL3-24COUNTERINSURGENCY 5-17 (15 Dec. 2006). 

75 Chapter V - Context 
qy jggpyy 

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. 

Security for Judges in Iraci 

While the more senior judges in Basra, for instance, have had the benefit of 

civilian lightly armored vehicles and bodyguards, many enjoyed no such security 

benefits when they left their offices. One regularly received death threats and felt 

forced to move his wife and children to the home of another family member to 

increase their security. The death toll amongst the judiciary at the hands of the 

insurgency has been tragic. Twenty-nine judges were killed in Iraq in 2005 and 

there were attempts on the lives of the several ministers including the Deputy 

Minister of Justice. Moreover, these figures do not include family members who 

were assassinated throughout the period. Many Iraqi ministers live in their offices 

in the heavily secured Green Zone and visit their ministerial headquarters outside 

the secure area perhaps once a week due to the security concerns associated with 

public office. 

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 

26 Report of the Panel on United Nations Peace Operations (The Brahimi Report), A1551305 - S12000/809 

(2000),available at http:/lwww.un.org/peace/reports/peace~operationsldocs/fuli~report.h~. 

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. 

Chapter V - Context 76 
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 

intemational 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. 

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 which 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 vet3' 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 

28 See TheBrahimi Report, supra note 26. 
 

29 See JAMES DOBBINS, ET AL., THEBEGINNER'S GUIDE TO NATION-BUILDING 50-5 1 (2007).


'O For information on vetting public employees see OFFICE OF THE UN HIGHCOMMISSIONERFOR HUMAN 

RIGHTS, RULE OF LAWTOOLSFOR POST-CONFLICT STATES-VET~ING: ANOPERATIONAL FRAMEWORK 

(2006), gvailable at http:/~www.ohchr.org/english/about/publications/docs/leoflaw-Vengen.pdf For .

further information about the ICTJ research project on vetting and additional guidelines being developed 

see http://www.ictj.org/en/research/projects/ve~ing/index.h~l. 

Chapter V - Context 
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 

self-defense, and controuarrest 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). 

31 Id. It may be necessary to employ persons with different areas of expertise, to include criminal law, 


civil law, human rights law, Shari'a, etc. 
 32 The Carabinieri are a separatebranch of the Italian armed forces. 


Chapter V -Context 78 
being adjudicated in his court.33 

4. Detention and Corrections 

All systems of justice must be able to confine andprotect detainees. A state with no pretrial detention capability cannot hold trials, and one lacking long-term confinement facilities 

cannot punish convicts;4 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 

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?' 

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 inc~ude:~' 

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 Handbookwill use the terms "jail" and "prison" to refer respectively to 
 

short- and long-term detention facilities. 
 35 Legal Assessment of Southern Iraq, supra note 33. 
 j6 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. 
 

79 Chapter V - Context 
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 avai~able?~ 

monitored safe cells, to protect certain detainees who pose a risk of harm to 

themselves 

a library or book distribution program 

visiting areas where detainees can meet with family, friends, clergy, or attorneys 

6) 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 

38 Prisons are normally surroundedby a number of bamers to prevent escape, which may include fencing, 

walls, berms, inaccessiblegeographical features, concertinawire, electric fencing, secured main gates and 

doors, guard towers, floodlights, motion sensors, working dogs, patrols, alarms, and countless 

combinationsof these or other security measures. 39 The term "segregation" should be distinguishedfrom "isolation," which is used by some institutionsas 

a form of punishment for misbehavior by the detainee. Some types of detaineesshould be segregated 

from the general population, includingpersons accused of sex offenses(particularlyagainst children)and 

informants. 

Chapter V - Context 
y ppg g

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 Nation's 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 

40 Humane treatmentis the standard under numerous authorities, includinginternationallaw, customary 

internationallaw, 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; Army FM 2-22.3; and The Detainee 

Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739. Prisoners are specificallycovered by certain 

internationalagreements,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 internationallaw, 

many of these resourceswill not be applicableor may merely be advisory in nature, depending upon both 

the US'Sand the host nation's views regardingthese internationalnorms. 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 subjectto cruel, 

inhuman, or degrading treatment or punishment."). 

Chapter V -Context 
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 In the European Union, for instance, 

the necessity for civilian, as opposed to military, judges in courts-martial is considered a matter 

of human rights law, as conked 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. 

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 Amy 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). 43 See Gneves v. United Kingdom, supra; Cooper v. United Kingdom, 39 Eur. H.R. Rep. 8 7 104 (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. 

Chapter V -Context 
B. Civil Law Systems 

The term "civil law" is commonly used in two different meanings: First, to distinguish 

the law that applies to private rights from the law that applies to criminal matters. Second, the 

term is used to describe a legal system distinguishable from common law systems. This section 

addresses the latter meaning and draws comparison with the common law method which will be 

more familiar to the JA. 

Civil law is a dominant legal tradition in countries based on Roman law, especially the 

Corpus Juris Civilis of 534 as later developed through the Middle Ages by legal scholars. Civil 

law systems, also called Romano-Germanic law, exist all over continental Europe, South 

America, and parts of Asia (including Iraq) and ~frica.4~ Civil law systems are commonly 

associated with the concept of codification while Common Law systems rely more heavily on 

precedent and case law and are found in all the United States (except Louisiana), the United 

Kingdom, and most British Commonwealth nations. 

The first civil law codifications in modem times originated in France with the Code Civil 

of 1804 and in Germany with the Prussian Landrecht of 1794 and the German Civil Code of 

1896." The codifications were an expression of the ideas of enlightenment including the concept 

of rule of law, however, as codification also occurs in common law systems, it does not of itself 

provide an adequate criterion for distinguishing between the two systems.'' 

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/2003O82OCPAO23CreationofaCodewi th-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. 

LAW TRADITION: OF 49 See JOHNMERRYMAN, THE CIVIL AN INTRODUCTION TO THE LEGALSYSTEMS 

EUROPE AND LATIN AMERICA 2 (2d ed. 1985). 50 The Code Civil of 1804 and the Civil Code of 1896 are still in force in France and Germany. 51 See MERRYMAN, supra note 49, at 26. 

83 Chapter V - Context 
gpy p

countries furthered the idea of restricting judicial power by emphasizing the separation of 

powers. As a result of this emphasis, civil law systems consider any judicial lawmaking power as 

undemocratic and consequently illegitimate, resulting in some question over whether judges have 

the power to interpret law at all. Given this approach to judicial power, from the civil law 

perspective, a legal system that gives judges lawmaking power vidlates the rule of law.54 

Thus, it is not the form of codifications that distinguishes common from civil law systems 

but the idea2 that the codes reflect. Contrary to the ideology of common law systems' 

codifications, which make no pretense of completeness, codifications in civil law systems, in the 

spirit of legal positivism, are intended to regulate a legal field exclusively. Judges in civil law 

systems are compelled to find a basis for their decisions within the code. 

Furthermore, 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. There is no space for considerations of justice outside the codified 

law, even if the price for this is an unjust or unrealistic decision. Thus, for instance, the Prussian 

Landrecht of 1794 included more than 17,000articles, along with a prohibition against judicial 

interpretation of the law.55 While most common law systems incorporate legislation, much of the 

detail and interpretation of the statute is left to the case law. 

While the civil law systems described above are theoretical models, in practice most civil 

law systems adopt elements from common law systems, especially the lawmaking hnction of 

judges, at least for some fields of law. In Germany, for example, the constitutional court acts 

more like a common law court than a classical civil law court. 

2. Spec~jic Aspects of Civil Law 

Sources of Law 

The ideology of civil law systems is based on the completeness of written formal law. 

Therefore, original sources of law are the constitution and laws passed by legislation, with the 

constitution overriding all other legislation. 

52 see id. at 15. 

53 See id at 16. 

54 See BRIANZ. TAMANAHA, ONTHERULEOF LAW: HISTORY, POLITICS, THEORY124-25 (2004). 55 See MERRYMAN, supra note 49, at 39. 

Chapter V -Context 
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.61 

Judges 

The French and German fear of a "government of judges" in the 18th and 19th century, 

and under the prevalence of the dogma of the separation of powers resulted in the power of civil 

law judges being dramatically restricted. When compared to their common law brethren, civil 

law judges are not widely known, their judicial opinions are not studied, and courts are instead 

viewed as faceless institutions. 

Legal Science and Techniques 

Legal science in the civil law world is primarily the creation of German legal scholars of 

the nineteenth century.62 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.63 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 case 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 

56 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. 57 See MERRYMAN. supra note 49. at 83. . . This concept is known in civil law countries under the term jurisprudence constante. 

59 This is the case for administrative courts in Germanv if one Senate of the Federal Suoreme 

Administrative Court wants to deviate from the decision of another Senate. See ~ectibn 11 VwGO. 60 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. 61 But see MERRYMAN, supra note 49, at 23 (recognizing the application of custom in many civil law 

countries). 62 See MERRYMAN, supra note 49, at 61. 63 Id. at 62. 

Chapter V - Context 
y y ; 

reconsideration of the facts of the case is usually excluded! 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 

in interpreting the law it states the correct interpretation and orders the lower court to reconsider 

the case. 

Civil Procedure 

As isAtypica1 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 deci~ions.~~ 

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.67 

Civil law systems do have juries in civil cases. 

Criminal Law and Procedure 

What constitutes a crime and how criminals should be punished are similarly treated in 

both civil law and common law countries. However, there are significant differences in 

procedure. 

Unlike some common law systems, civil law systems require that every crime and every 

punishment be embodied in a statute enacted by a legislature.68 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. 

Prosecutors play a more significant role in investigation under the civil law system than 

in most common law systems. In civil law systems, investigation and detention of suspects is the 

"Id. at 67. 

65 Id. at 87. 

Id. at 114. 

67 Id. at 115. 68 In most civil law countries this principle is even codified in their constitutions; see, e.g.,NETHERLANDS 

CONST., art. 16; GERMAN CONST., art. 103(2).

Chapter V - Context 
(y 

) p

Civil law systems provide similar rights to suspects as those in common law jurisdictions. 

Suspects have the right to counsel and are required to be warned of their right against selfincrimination, much like the American Miranda warning. Confessions made before the state 

prosecutor or the police by a suspect who has been informed of his rights can be admitted as 

evidence. 

Unlike the common law model, civil law criminal cases are commonly divided into three 

phases: the investigative phase, the examining phase, and the trial. In the investigative phase, a 

public investigator tries to establish the facts of the case and to collect evidence of the guilt or 

innocence of the suspect. In the examining phase, the examining judge prepares a complete 

written record containing all relevant evidence. If the examining judge concludes that a crime 

was committed by the accused, the case then goes to a trial. The examining phase is primarily 

written and not public. In the trial, contrary to common law systems, the defendant can be 

questioned but may refuse the answer. The defendant has the procedurally secured right to lie; 

defendants cannot be sworn. The defendant's refusal to answer, as well as any answer given, is 

taken into account by the court. 

I Civil Law Procedural Changes Can Drive Assessments I 

Civil law systems often operate through a variety of investigative and trial 

chambers that may be located throughout its jurisdiction. It will 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 and their physical location and key personnel, you must first learn about 

how the prevailing legal system requires courts and court officers to be organized. 

Guilty pleas do not play a major role in civil law systems as they do under the common 

law where the defendant usually benefits from a significant reduction in his sentence by an early 

admission. Under civil law the defendant cannot forgo trial by pleading guilty, a confession is 

merely evidence that is introduced in the trial. 

C. Religious Legal Systems and Sharia Law 

The main religious IegaI 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 

Chapter V - Context 
Muslims believe that God revealed his teaching to Muhammad, word for word, over a 

period of twenty-three years. These written revelations are contained in the Qur-an.The Quran 

does not contain much law; only around 500 of the 6,000 verses of the Quran pertain to law?' 

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) as the expansion of the 

Sharia, complemented by the rulings or the science of ascertaining the precise tenns of the 

Sharia. The Sharia includes not only civil and criminal law, but also etiquette, dietary, and 

hygienic rules. 

The Sharia is composed of four sources, although the identity of those four sources is a 

matter of dispute between Sunni and Shiite mu slim^.^^ 

Under the Quran, there are the Sunna, the actions and sayings of the Prophet as a clear 

manifestation of God's will. 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.74 The content of the Sunna is found in the form of ~adith?' statements which have been 

passed on in a continuous and reliable chain of communication, from the prophet himself, to 

present adherents. A Hadith contains two parts: the nonnative statement and the chain (isnad) of 

the tradition which it has followed.76 In the Muslim community, though, there is disagreement 

over the authenticity of these statements. Sunnis and Shiites have their own Hadith col~ections.~~ 

Under the Hadith, there is the Ijma, an explicit source of human origin in the form of a 

doctrinal consensus (between the Ulema as Islamic legal scholars). Under the Ijma, there is split 

69 See WAELB.HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW 1 (2005). 70 On the Taliban, see THE MIDDLEASTAND ISLAMICWORLDREADER243 (Marvin E. Gettlernan and 

Stuart Schaar eds., 2003). 71 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, LEGALTRADITIONS OF THE WORLD204 (2000). 72 Id. at 172. 73 HALLAQ, supra note 69, at 1 19. 

74 ELIE ELHADJ. THEISLAMIC SHIELD43 (2006). 75 Hadith was okginally not synonymous with the verbal expression of the Sunna. HALLAQ, supra note 

69, at 71. 

76 ld.,at 103. 77 See ELHADJ, supra note 74, at 46. 

Chapter V -Context 
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. From the Islamic perspective, it is the recognition of God's word that drives the legal 

system.s0 These two approaches can be very hard to reconcile in a single legal system. 

Consequently, Western countries doing rule of law operations in Islamic countries must be 

particularly conscious 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, 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 under Islamic law. The Qadi dispute resolution is a kind of "law 

finding trial" not connected with the simple application of pre-existing notms, 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, cases are not reported. Precedent, therefore, is lacking. 

The Mufti or 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 fatwah, is often filed in court. 

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 

Islamic law improved the status of women compared with the regulations of pre-Islamic law:' 

78 See HALLAQ,supra note 69, at 115, 129. 
 79 There are more modest variations of these concept 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 71, at 207. 

See id. at 208. '' Although some writers proclaim that this is only a rumor put out by Islamic scholars. See ELHADJ, 

supra note 74,at 61. 

Chapter V -Context 
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. 

Maniage 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 Quran introduced a waiting period imposed on divorced women. 

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.83 

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 f?om equity by the allocation of risk, in Islamic countries, banks 

frequently assume a portion of the risk. As H. Patrick Glenn explains: 

[Blanks...cannot simply charge interest on loans but must acquire goods or take equity in 

the financially-supportedenterprise, 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 musharaka, and even "diminishing musharaka," where the bank's 

share is re-imbursed over time. Finally, for pure invenstment; there is mudaraba, 

resembling a musharak, but in which only one partner provides the funds and the other 

manages the inve~trnent.'~ 

82 E.g., THEQURAN2:228: "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 ...." 
 83 HALLAQ,supra note 69, at 23. 
 

84 GLENN,supra note 71, at 183. 
 

Chapter V - Context 
Yemen, Oman, and Lebanon), believed in hereditary succession for caliphs based on descent 

from Muhammad's clan, the Quraysh, but also stressed the need for new caliphs to obtain 

community allegiance.86 

shiitess7 were of the view that succession was by divine right and that only descendants 

of Muhammad's son in law Ali, the fourth caliph, have the legitimacy to become 1mam." 

This originally political dispute has had a direct impact on the religious Sunni and Shiite 

life, causing different Sunni and Shiite Hadith collections of laws. 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 think that the Prophet's companions who supported 

the intervening three caliphs are not reliable transmitters of traditi~n.'~ 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 infallible Imams. 

Another important difference is that Sunnis do not accept intellectual reasoning as a 

source of law. That is why for them interpreting the Quran and the Sunna or forming new 

opinions by analogy are unacceptable forms of legal reasoning.90 Shiites, on the other hand, 

accept the intellectual reasoning as a source of law. The Shiite scholar (called Mujtahid, Faqih, 

Majaa Taqlid or Ayatullah) interprets the Quran and the Shiite Hadith. He is free to change his 

rulings and opinions over time and to evolve religious law with the modem time^.^' 

The enmity between Sunni and Shiite Muslims has lasted now for 14 centuries and it is 

today no less fanatic than it was after the prophet's death, 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 slam."^^ It has been intensified over history by two 

fatal events: the Mongols' destruction of Baghdad in 1258 and the Christian Crusades in the 12th 

85 ELHADJ, supra note 74, at 42. 
 

86 GETTLEMAN& SCHAAR,supra note 70 at 21. 
 87 Shiites means "Ali's partisans". 
 88 GLENN,supra note 71, at 197. 
 89 ELHADJ,supra note 74, at 46. 
 90 Id. at 48, 134. 
 91 Id. at 135. 
 

92 Id. at 145. 
 

Chapter V - Context 
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). 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 ~slarn.~~ Some radical Islamic movements proclaim Jihad as an 

obligation for every ~uslim.~~ 

D. Combined Systems 

In addition to civil law, common law, religious systems, there are also mixed legal 

systems. 

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 are Botswana, Lesotho, 

the US State of Louisiana, Namibia, the Phili pines, Puerto Rico, Quebec, Scotland, South 

Africa, Sri Lanka, Swaziland, and Zimbabwe?'The European Union, too, is something of a 

mixed common/civil system. CiviVreligious mixed systems frequently involve Islamic law, 

including Algeria, Egypt, Indonesia, Iran, Iraq, and syria.'' 

Particularly relevant for the rule of law practitioner is that mixed systems are generally 

not organically developed legal systems. Usualy, mixed legal systems are created when one 

culture, imposes its legal system on another culture, usually by conquest.99 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 

93 Id. 
 94 GLENN, supra note 71, at 216. 
 95 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 

contains the religious obligation to fight against unbelievers in the way ofjihad. See CENTERFOR 

RELIGIOUS FREEDOM OF FREEDOM HOUSE, SAUDI ARABIA'SCURRICULUM OF INTOLERANCE 13

(2006). 

See Charter of the Islamic Resistance Movement of Palestine (Hamas), 1988. 97 See William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Cod$ed and Uncodified),60 LA. 

L. REV. 677,679 (2000). 98 Id. 

99 Id. at 725. 

Chapter V - Context 

96 
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 

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 o osed to mediation, arbitration provides for a solution that is both binding and 

enforceable." 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. 

loo 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. 

Chapter V -Context 
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 

zones.'02 

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. 

101 For example the London Court of International Arbitration, the American Arbitration Association and 

The Middle East Center for International Commercial Law. 102 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 

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.uWrep006. 

Chapter V -Context 94 
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. ~h'ile 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 Commissiorrs 

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 

Vergangenheitsbewalligung 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.''' 

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 

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. 

I03 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.orgflibrary/trush.html. 

Chapter V -Context 
balance: 

(0)ur responsibility to the living has taken precedence over justice to 
 

the dead'04." 
 

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 Cominissions 

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 CPA"' 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. 

F. 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 organisations (CSOs) include 

organised NGOs, community-based organisations, 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. 

104 United Nations Special Representative of the Secretary General, Jean Amault. 105 See Coalition Provisional Authority Regulation 8, as amended by Regulation 12.http://www.cpairaq.org/regulations/20040114~CPAREG~8~PropertyrtyClaims~Commission~and~Appendix~.pdf and 

http:llwww.cpairaq.org/regulations/20040624~CPAREGG122Ira~Pr~pertyrtyC1aim~SC~mmi~sion~~ithhAnne~~AAandd 
 

B.pdf. 

Chapter V -Context 
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 repres'ents. 

1. Operational Objectivesfor Engaging, Leveraging, and Supporting CivilSociety 

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 dishust 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 

97 Chapter V - Context 
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. 

Providing Legal Aid in Bangladesh 

One of the main challenges facing states in countries with large numbers of 

deprived populations like Bangladesh is the provision of public goods. This 

shortcoming is especially critical in relation to the judicial system, which tends to 

exclude poor people. The Bangladesh Legal Aid and Services Trust (BLAST) 

raises legal awareness, conducts research and advocacy, and provides services 

such as mediation and free legal support in the form of litigation, investigation, 

and monitoring of violation of law and human rights. 

BLAST has been able to make a significant difference through its advocacy 

activities including public interest litigation and public lobby events on justice 

issues. Successes have included the enactment of legal aid legislation by the 

government, protection of slum dwellers from eviction, and the reduction of 

arbitrary arrests. 

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. 

Chapter V - Context 
g g gp

complexity of the problem, developing strategies to monitor and prevent 

trafficking, and how to deal with its victims. This resulted in the police academy 

adding the issue of human trafficking to their curriculum and the harmonization 

between the police and border guards of procedures to combat traffrcking.lW 

Oversight of the security system. CSOs can help inform, influence and assess the 

performance of formal civilian oversight bodies and security system institutions. 

3. Conducting a Baseline Assessmettf in fhis 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, and should also be submitted as intelligence 

requirements to the G-2 for additional collection and analysis. 

Baseline Assessment for roles of Civil Society in Rule of ~aw"' 

Context 

What are the political, social, and legal frameworks (e.g., social pressures, legal 

restrictions, and history) in which civil society operates? 

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? 

'06 Source: La Strada Foundation, http://www.strada.org.pl/index-en.html. 
 

'07 See also section B on Assessments for direction on how to conduct the assessment and how to use 
 

these questions as measures of effectiveness to monitor progress. 
 

Chapter V - Context 
g

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? 

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 programme planning, particularly when civil society is weak or under-developed. 

Consider the role of International CSOs in capacily-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 

Chapter V -Context 
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-tern 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 network 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. 

Train the trainers. Experience shows that 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 maximises 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. 

Chapter V - Context 
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 parastatals. 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 CSOpartners. 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. 

G. 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: 

Military Services 

Military training/consulting 

Military intelligence 

Arms procurement 

Combat and operation support 

Humanitarian de-mining 

Chapter V -Context 
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 Afiica, 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, 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. 

Chapter V - Context 
providing security services to the USG. In these situations, the principle of unity 

of command should apply. 

1. Assessing the Role of Non-State Securiq 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 relationshipwith public 

security agencies, and increasing cooperation 

Statutory regulation and governmentoversight, perhaps through licensing 

Professionalismand 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 operatingstandards 

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 govemance 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 govemance 

or regulatory framework in which they exist. 

Context 

What are the factors contributing to supply of and demand for private security 

services and other non-state security providers? 

Chapter V - Context 
sector, on public law enforcement services, crime levels, public safety, human 

rights, and business confidence? 

Regulation and Oversight 

What laws and regulations are in place to govern the private security sector and 

the use of firearms by civilian corporate entities? 

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? 

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, 

intemational, subsidiaries of intemational 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? 

ChapterV - Context 
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 securiy 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. 

(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. 

(3) ClarzJL the roles and functions of private security providers. 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. 

(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 securiv providers who operate 

externally. 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. 

Chapter V - Context 106 
(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.'08 

(9) Address the links to DDR. Disarmament, demobilization and reintegration (DDR) 

programs 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 ofthe 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, 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. 

For information on vetting public employees see OFFICE OF THE UN HIGHCOMMISSIONERFOR 

HUMANRIGHTS, RULE OF LAW TOOLS FOR POST-CONFLICT STATES- VETTING: AN OPERATIONAL 

FRAMEWORK(2006), available at 

http://www.ohchr.org/english/abouWpubIications/docs/mleoflaw-Ve~ng~en.pdfFor . 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. 

Chapter V - Context 

108 
THIS PAGE INTENTIONALLY BLANK 

Chapter V - Context 
effective without a coherent and compressive plan. 

This chapter begins with an in-depth discussion on rule of law planning in three distinct 

phases: pre-deployment, initial deployment, and sustained deployment. The chapter then 

describes a three-phased process of assessing the status of rule of law in the host nation, which 

provides the context for using the command elements to develop appropriate rule of law 

initiatives. The chapter also provides guidance on the utility of metrics applied to rule of law 

operations in order to measure rule of law progress, evaluate individual programs cause-andeffects, and appraise whether initiatives reflect host-country needs. This chapter ends with a brief 

discussion of the fiscal law environment Judge Advocates can expect when preparing for (and 

conducting) rule of law operations. 

Given this complex nature of rule of law, both in the theoretical and operational sense, it 

would be difficult, and more likely counterproductive, to devise rule of law programs without 

first developing a strategy based on comprehensive assessments and well structured metrics. This 

chapter attempt to provide the Judge Advocate with some direction in programming future rule 

of law missions. 

A. Planning Phases 

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 followingphases: 

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. 
imminent. In the case of a major natural disaster, a unit might have only days to plan before 

amving in the theater of operations. Operations over the past two decades (Haiti, BosniaHerzegovina, Desert Storm, and Operation Iraqi Freedom (OF)) 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 whichyou will be Operating within the Command 

Structure. 

The nature of the mission that will be assigned to rule of law practitioners will 

necessarily impact planning in the pre-deployment phase. There will be significant planning 

differences depending upon whether the JA personnel will be operating from 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-man 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 hidherself with a 

tactical unit impacts planning for: 

the numbers of sets of legal resources(manualslcds, 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 

representativeof higher headquartersco-located with the tactical unit 

Chapter VI - Planning 
courthouse operations across the southern region by several months in some 

instances.' 

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.' The pre-deployment phase provides the best 

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 

anival 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 stalus 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 B below. . 

' CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND 

IRAQ: VOL. 11,FULLSPECTRUM OPERATIONS 254 (2006). 

LTC Craig Trebilcock, Legal Assessment of Southern Iraq, 358th Civil Affairs Brigade (2003). 

Ill Chapter V1-Planning 
Also, the Law Library of Congress can provide assistance in this area. The Law 

Library has a librarian assigned to numerous regional law collections. An 

appointment can be made to meet with the librarian and Judge Advocates 

assigned at OTJAG could 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, fimding, 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-petmissive environment the Judge 

Advocate will indeed be alone, with only other military operators such as military police and CA 

personnel, in attempting to assess and improve justice sector operations. The non-permissive 

environment makes it a virtual certainty that NGOs and 10s 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 USAID or 

Department of Justice, 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 Advocate to maximize the effect of his 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. 

'Rule Of Law Lessons Learned MNC-I Rule Of Law Section Operation Iraqi Freedom 05-07 (Dec. 10 

2006). 

Chapter VI - Planning 	 l I2 
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) Pre-DeploymentResources 

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 

criminal procedure code 

civil code 

civil procedure code 

administrativelaw 

citizenship law 

property laws 

laws on organization of the government in general and courts in particular 

laws on organization of the police and prisons 

These resources may often be found in English translation through: 

The Library of Congress 

law school libraries (domestic and foreign) 

Chapter VI - Planning 
pg

US Embassy Country teams in the expected area@)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. 

fi Anticipate and Planfor TranslatorAssets 

Be aware of the need for translators, including awareness that within a single country 

several languages or dialects may be spoken. In planning for and working with translators, 

always be aware of culturaUsectariandivisions within the A0 that might impact the effectiveness 

of your translator. E.g., a Serbian born translator who speaks Serbo-Croatian 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 culturaUsocial 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. 

g) 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 hopehlly has finally been put to rest in OF 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 and other tactical considerations may have a large 

impact on subsequent success in coordinating a rule of law mission once in theater. 

Firms engaged in internationalbusiness may have treatieslcivil codes for foreignnations. 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. 

Chapter Vl - Planning 114 
gpjy 

done in the rule of law context is by educating commanders prior to deployment upon how 

justice 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. 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. 

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

The initial deployment period begins prior to amval 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 fiom -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 timefiame. 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 amval in country will largely be 

the plan on arrival at the ISB. 

During transition through an ISB: 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. 

Upon arrival in the area of operations, the planning cycle again goes into high gear. 

Frequently, the nature of the expected assignment changes upon amval, and command and 

E.g., Hungary for Joint Endeavor; Saudi Arabia for Desert Stonn; Kuwait for 01F. 

Chapter VI -Planning 
handson work of restoring the rule of law. Every day, through that on

theground 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) Providefor 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, 

appearances 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 

Chapter VI - Planning 
y gpyg ygy

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 Ofjcials 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. 

I The Resilience of Old Practices in Iraq I 

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. 

Chapter VI - Planning 
e) "PlanB" 

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. 

Planning vs. Execution in OIF-1 

In OIF-1, the Coalition Provisional Authority announced in May 2003 that it had 

reserved all authority to reform the Iraqi legal system unto itselc7 but then did not 

possess the comm~inications assets or personnel outside the Green Zone carry out 

such a program. For approximately two months after the fall of the Baathist 

regime, CPA personnel overseeing the Ministry of Justice in Baghdad were 

largely unable to communicate plans or directions to CA units, Government 

Support Teams ,or SJA offices in the provinces, who were actively engaged with 

the Iraqis in rule of law missions. 

Despite the mandate on paper that CPA was in charge of the efforts to restore the 

rule of law, the military units seeking to establish the rule of law in each province 

had to engage in their own plaming at the local provincial level, with almost no 

centralized guidance. 

fl Coordinate with NCOs/IOs,but Recognize tlreir 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 10s 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 10s 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 anive 

late or not materialize at all due to a non-permissive environment. 

LTC Craig Trebilcock, Justice UnderFire, ARMYLAW.(Nov. 2006). 
 

Coalition Provisional Authority, Gen. Order No. 1 (16 May 2003). 
 

Chapter VI - Planning 118 
understanding of the rule of law mission, will miss the ultimate goal of creating a system of law 

that is viewed as legitimate, relevant, and trustworthy in the eyes of the local population. Built 

upon the assessment process discussed in section V1.B 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-based 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 USAID recognizes that the narrow focus that necessarily control the initial phase of a 

rule of law mission must evolve into a broad-based. effects-driven ~lan that considers both 

justice and political factors within a society in order to have long-term success in establishing the 

rule of law: 

Past tendencies to respond to rule of law problems by focusing primarily on the courts 

and other components of the formal justice system have led to three problems. First, 

strategic planners have not been open to the full range of options for addressing rule of 

law problems, instead focusing more narrowly on such problems as court inefficiency or criminal procedure. This has resulted in the second problem, which is neglecting to treat 

the justice system as part of the larger political scheme. Third, judicial and legal rule of 

law programs have been overburdened with unrealistic expectations. They cannot solve 

complex and fundamental societal problems, while the social structures and values that 

led to the rule of law problems remain in place? 

US AGENCYFOR INTERNATIONAL DEVELOPMENT, GUIDETO RULE OF LAW COUNTRY ANALYSIS 4

(forthcoming2007). [hereinafterGUIDETO RULEOF LAWCOUNTRYANALYSIS]. See also Rachel 

119 Chapter VI -Planning 
- - - - - - - - - - - ----

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. 

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 

judiciaUpolice inspection offices to discourage corruption or misuse of government 

resources for private gain? 

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 buy back programs. 

Kleinfeld, CompetingDefinitiot~sof the Rule of Law,in PROMOT~NGTHE RULE OF LAWABROAD: IN

SEARCHOF KNOWLEDGE 31,61-62 (Thomas Corothersed., 2006).

Particular care needs to be exercised in setting up oversight organizations,since they can themselves 

become corrupt and improperly use their oversightpositions as a platform From which to exert a coerclve or cormpting influence over the courts. 

Chapter Vl -Planning 
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 easiei 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. 

B. Assessments (Methodology & Framework) 

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 forjudges 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. 

Chapter VI - Planning 
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, and 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 

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.'' 

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." 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 BritishIUS common law tradition. 

b) Understand tlie 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 which 

frequently controls the funds necessary for justice sector institutions to operate. During pre- - p pp 
 -pp

10 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. 
 

'I GUIDETO RULEOF LAW COUNTRYANALYSIS,
 supra note 8, at 16. 

Chapter VI - Planning 122 
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 (-30to +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. 

a) Identify Who the Players Are 

Initial assessments should include contact information for: 

Judges 

Court clerks and administrativepersonnel (who make the judicial system work) 

Law enforcementofficers 

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 

123 Chapter V1- Planning 
cabes, te appeate pocess ad te adstatve uctos o

te cout suc

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 impactjustice 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) 

10s'(e.g., United Nations, ICRC) 

Victim's associations 

Coalition partners 

Educational institutions, especially law schools 

Other host government officialswho 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 A0 

USG civilian personnel acting in a supporting or oversightcapacity 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? (positiveand negative) 

Chapter VI - Planning 
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. 

c) Assess who ControlsFunding in the Host Government 

Justice agencies will not continue to operate without hnds 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. 

Chapter VI - Planning 
favors to be performed prior to funds being released. 

d) 	 Assess who has Custody of Prior Legal (criminal, civil judgmerits), 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. 

Locating Court Records in Iraq 

One week prior to the US invasion of Iraq under OIF, Iraqi courthouse employees 

were directed to take court records home and store them in their private homes, as 

it was believed the Americans would hit Iraqi government buildings with air 

strikes, but would likely seek to avoid hitting private residences. Recovering those 

temporarily displaced records following the end of hostilities was an important 

step toward restoring normalcy in court operations. 

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. 

Chapter VI - Planning 
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 

pre-conflict power structures, to complement the usual cadre of judges, prosecutors, and other 

legal consultants involved in rule of law assessments.'' 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:l3 

. Sovereignty issues. Where applicable, 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, weaponsldrug smuggling, and trafficking in persons) and the kind of 

mechanisms in place, if any, to address it 

"Ap~licablelaw." The formal legal framework that was in place prior to the conflict or 

tha; is considered to be valid in the country, including any interim-laws that are being 

applied pending the passage of permanent legislation 

Formal justice.I4The extent to which formal institutions remain intact or functional, and 

the availability of qualified professionals to staff them 

Informal justice. The informaljustice and dispute resolution mechanisms that citizens are 

using -such as tribal justice mechanisms -how they relate to each other and to the formal 

l2 US AIDFOR INTERNATIONAL DEVELOPMENT, REBUILDINGTHE RULEOF LAWIN POST-CONFLICT 

ENVIRONMENTS12 (forthcoming 2007) [hereinafterREBUILDINGTHE RULEOF LAW]. 

l3 See id., at 12-13. 14 The terms "formal" and "informal" justice have been used consistently in order to avoid confusion and 

to maintain distinctionbetween two systems.The terms do not necessarily accurately describe the 

systems and mechanisms ofjustice.The term "formal" justice mostly to refer to statejustice institutions 

and processes. The term "informal" refers loosely to a variety of mechanisms and processes that include 

non-state mechanisms, traditionalpractices, and customarylaw; the term does not imply procedural 

informality. 

Chapter VI - Planning 
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 

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 o erations, titled Rule-of LawTools For Post-Conflict States, Mapping the Justice Sector (2006).IP 

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 

Available at: www.ohchr.org/englishlabout~publicationsldocs/mieoflaw-mapping~en.pdf. 

Chapter VI - Planning 	 128 
Assessment FrameworkI6 

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 modem criminal code 

which 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 intemal 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)? 

16 GUIDETO RULEOF LAWCOUNTRYANALYSIS, supra note 8, at 33-40. 

Chapter VI - Planning 
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 which 

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 Phe 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? 

Chapter VI -Planning 130 
Effects-Based 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 which 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? 

131 Chapter VL -Planning 
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/rernoval 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 mal-feasance in the 

performance of their duties? 

Are there internal or external (civilian) boards which 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-Based 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? 

Chapter VI - Planning 
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 ori 

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? 

Chapter VI -Planning 
p, y 

reasonably and in a way which 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 

fkee 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? 

A sample set of court and prison assessment documents taken from OIF 05-07 are 

appended to the end of this chapter. 

C. Metrics 

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. 

Chapter V I -Planning 
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 aniving 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 detainedlimprisoned persons. 

The rate at which newly detainedlarrested personnel are growing versus capacity. 

ChapterVI - Planning 
pg 

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 which 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 

Chapter VI -Planning 136 
availability. As the mission evolves beyond initial entry into sustained operations, the mission 

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 court houses 

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 meh-ics 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 

137 Chapter VI -Planning 
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. 

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 judiciaUIegal 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 loutreach. 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. 

Chapter VI - Planning 
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 of human rights, the rule of law, 

anti-corruption, and the promotion of civilian police roles that support democracy." 

The result is that despite the general prohibition, most rule of law operations occuning as 

part of a larger military effort will fit into the exception. But locating an exception to the FAA 

prohibition is not the same as identifying the funds one will use to conduct them. 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 post-conflict 

security efforts in Afghanistan and Iraq, for example, has come not kom DOD funds but from 

DOS "Title 22" authority.'g In these circumstances, DOD agencies effectively operate as a 

"subcontractor" for DOS on DOS-controlled projects.20 Two more specific exceptions to the 

FAA prohibition have also figured prominently in recent rule of law operations: 

First, because the bulk of rule of law operations will take place as part of specific 

contingency operations, there is likely to be an appropriation for rule of law (or other civil 

reconstruction) operations in the operative supplemental appropriation legislation covering the 

operation, such as the Iraq Relief and Reconstruction ~und." Of course, if there is an express 

appropriation for specific rule of law activities, the existence of that appropriate may seriously 

limit the degree to which O&M funding can be used to perform development activities, 

especially if the command has established a more restrictive policy regarding the use of O&M 

funds for non-traditionally military expenditures.22 

Second, the Commander's Emergency Response Program (CERP) has been a major 

source of funding for development operations requiring maximal flexibility in how funds are 

used, such as rule of law operations. Originally resulting from the capture of Iraqi currency 

I' 22 U.S.C. 4 2420(a).
 '' 22 U.S.C. 8 2420@)(6).Seegenerally CENTERFOR LAWANDMILITARY
 OPERATIONS, INTERAGENCY 

HANDBOOK207-12 (2004). 

l9 CENTERFOR LAWAND MILITARYOPERATIONS, FORGEDIN THE FIRE 220 (regarding the Afghan 

National Army) [hereinafter FORGEDIN THE FIRE]. 

2D THEJUDGE ADVOCATE GENERAL'SLEGALCENTERAND SCHOOL, OPERATIONAL LAWHANDBOOK 

255 (Aug. 2006); INTERAGENCY HANDBOOK, supra note 18, at 210. 21 For more information on the Iraq Relief and Reconstruction Fund and its use for rule of law operations, see the Special Inspector General for Iraq Reconstruction at http://www.sigir.mil/.' 22 See FORGEDINTHE FIRE,supra note 19, at 219-23 (describing the series of debates occuning during 

OEF regarding the use of O&M funding for humanitarian and development-like activities). 

139 Chapter VI - Planning 
()

pygp

Strategic Framework for all US Foreign Assistance administered by Department 

of State and USAID, as well as resources provided by the Millennium Challenge 

Fund (MCC). This process includes military assistance programs such as FMF, 

FMS, IMET, and peacekeeping operations. Most foreign rule of law programs 

that Judge Advocates will encounter in the field, whether planned and executed 

by DOD, its civilian interagency partners, or through international financial 

institutions that the US finds, including the World Bank, will likely fall under the 

foreign assistance framework. 

E. 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 roadrnap for the operation but also provide 

guidance on whether the mission is successful and whether what is working in one A0 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 successfil 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. 

*'see id. at 230-34. 

Chapter VI -Planning 
Appendix to Chapter VI 
 
Chapter VI - Planning (Appendix) 
2. Do judges complain of having been targeted with violence by AIF or other sources? 

3. OVERALL: Based on data above, do judges feel intimidated by AIF, tribal leaders, or 

other inappropriate sources? YES No 

143 ChapterVI - Planning (Appendix) 
1. Do judges acknowledgereceiving sufficientinvestigativepackets from Judicial and Police 

Investigators? 

2. Are the Investigative JudgeNagistrates assigned a Judicial Investigators from the IPS? 

Are they adequate? 

3. Do IPS Investigators have any role in preparing cases for trial? 

If so, describe: 

4. Briefly describe the relationship between judges and IPS (eg., attitude, trust, 

cooperation): 

5. OVERALL: Based on data above, are judges satisfied with the investigative support 

received from IPS Investigators? YES No 

AssessingRoL AdvisorIJudgeAdvocate Forum 


Suggestionsfor Future Improvements: 


Recommended Future Projects: 

General Notes and Observations: 

Chapter VI - Planning (Appendix) 144 
y 

e. Grid Coordinate (from main entrance) 

f. Type of Facility (Pre-trial, Post trial, IPS 

station) 

g. Prison Phone Number 

Landline? 

Cell phone? 

11. Infrastructure 

1. Is the building structurally sound? 

2. Is there adequate sanitatiodplumbing? 

Describe. 

3. Is there adequate electricity? 

How many hours? 

Is there a generator? 

4. Is there adequate communication equipment? 

What shortfalls do staff identify? 

5. Is there adequate furniture? 

What shortfalls do staff identify? 

6. Is there space for recreatiodworship? 

111. Security 

1. Are there external security bamers (Alaska, Jersey, etc.)? 

2. Are there IPS or other security presence inside andlor outside? 

3. Are there guard towers? 

4. Is there a visitor screening system? 

Is there a separate screening area for males and females (i.e. female screeners)? 

5. Ratio of prisoners to guards? 

ChapterVI - Planning(Appendix) 
2. What is the actual current capacity? 

VI. Medical Facilities 

1. Is there an on-site medical facility? 

Are there on-site medical personnel? 

2. Is there a procedure for getting inmates medical attention if no on-site facilities exist? 

Describe. 

VII. Life Support 

1.Is there adequate food, water, and hygiene provisions to meet the basic needs of prisoners? 

VIII. Prisoner Mistreatment 

1. Number of reports of prisoner abuse that are reasonably substantiated? 

Describe basic observations of prisoner condition. 

IX. Tracking 

1. Is there a system to track prisoners' biographicaVadministrative data? 

Describe 

2. Is there information retrieval capacity? 

3. Is there connectivity to other prisons? 

4. Can prison directorladministrator access information? 

X. General Notes, Observations, Suggested Improvements 

Chapter VI -Planning (Appendix) 146 
POLICE JUDICIARY INTERACTION Comments 

0Police Work Cooperatively 

With Courts 0Police Follow Orders of Judge 0 OVERALL 

DETENTlONlPRlSON FACILITIES Comments 

0Average of Detainee Population 

M Maxlmum Capacity 

0% of Detainees Detained Over 

24 hrs wlo Judicial Review 

0Average of Prisoner Population 

vs. Madmum Capacity 0 OVERALL 

0 

ACCESS TO JUSTICWSPARENCY Comments 

Citizens Have a Capable 

Legal Aid ORice 

Citizens Have the Oppoltunity 

To Redress Government 

Media Has Access to 

COURT HOUSES Comments 

0Court Houses with Adequate 

Faciliiies and Equipment 

0Court Houses with Adequate 

Security Measures 

0Court Houses with Sumdent 

0 

Administrative Personnel 

Case Management System is 0 OVERALL In Place and Functional 

JUDICIAL SYSTEM Comments 0
 - % Investigative Judges Working 
 

vs Number Assigned 
 

% Judicial Investigators Working 
 0 vs. Number Assigned 


0Judges with Trained PSD us 0OVERALL Those Requiring a PSD 

LEGAL FRAMEWORK Comments 

Laws are Published, Reported 

And Widely Disseminated 

Prmincial Council Prwide Over- 0 OMRALL

sight of executive agencies 

RULE OF LAW (Part 2 of 2) 

Indlcator Measure GREEN AMBER ORANGE RED 

Detention/ 30% Averap of current populdion of Popdltian is <a% d Popuhtion is 63% - 94% of Podation is 95% - lOO%of Popddion is >lOO.h ofnmnhun 

Prim each dention faciky vs. rmxinlnl capacity maninun caWtf ~uncapacitV -PXW Facilities maximum capacity of facilW 

40% 	 %of detainees who haue been On 1%-10% of &tam have 11% - 25% ofdetaineeshave >25% ofckbimer havehcn 

detdnedfor wer 24 hours w~thort been delaii ova24 hours been&dined ow24 harr detainedow 24 hours 

judi review of file 

30% 	Awap of inmate population vs Popddion is <a% of Populationis85% - 94% of Popubtii is ¶5% - lOmbd Popdmis >lOOohof­ maximum capacity at prim martinuncapacity hnwhuncapaitv ~lnlwpa+l CaPaaY 

Access to 35% Citizens hme a capable legd aid One or more fumtiming, A legal ad &Q functionhe A legalad dfiois&WbutWer6hauen oLgdaid office 

-1 bke capabk and fun& kgalaid capabk ad hnhd, nc4ydfundedor fmctimin1 

Tmaur/ oh. ruffiitlaworkload idcimtfa worldd 

35% Citizenshave oppotunky to Cither. aefm to redre% Citizem hae gmmally fw Signifkartinrtihtlondor reMit bredposstbib?fIeCh% to 

redres provinaal governmen! 	 pmvindal wmrmant m s thmugh mu& andlm barrisrto citizenmckas provirriala&5aes 

sph+ly anda~fm h local gomnmut, thaghsom ex- buraaurraw barrissexia 

30% Medie access to gwernmsnt Plssallowed to vitudly all PlerraLwed to umnaaetkqs, Na prrssdlovredtomeetings; No media­

&has gasrmert-s but midhkkope by prasconkrrrrrrm ormr 

gwEnnfd dlor PC: 

Franevork 

Legal 75% widely 

Laws are 

hemmated publiied, reported, and dirsmninded 

All laws panredate ptbWy 

publicly 

Majority diesrrnaM af b vparsedare publicly 

MapnIy diesniMhd of !anpasadme not Laws 

dissemination am ped

- 25% 	 Provincial council provides effective Subcannitheand kgisbtim Syrtsn mi&, but is only Subcannithe fmnd or No syshm establbhed oversight of mecctive apncies by effdhly povitks amiglt of pattially irmhnmted legislathparad,btt isnat 

way d a syaem of subcommittees eecmeagencies funcUmal or legislation 
THIS PAGE INTENTIONALLY BLANK 

Chapter VI - Planning (Appendix) 
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.' 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 andlor 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.'* 

' The Secretary-General,Report of the Secretary-General: The Rule of Law and TransitiorralJustice in 

Conflict arrd Post-ConflictSocieties,3, U.N. Doc. S/2004/616 (Aug. 23,2004). 

JANESTROMSETH, DAVIDWIPPMAN&ROSA BROOKS,CANMIGHTMAKERIGHTS?:BUILDINGTHE 

RULEOF LAWAFTERMILITARYINTERVENTIONS1l (2006). 'See Wade Channel],Lessons Not Learned About Legal Reform,in PROMOTINGTHE RULEOF LAW 

ABROAD:INSEARCHOF KNOWLEDGE137-159. 

UNITEDNATIONSDEPARTMENTOF PEACEKEEPINGOPERATIONS, PRIMER FOR JUSTICECOMPONENTSIN

MULTID~MENSIONAL PEACEOPERATIONS: STRENGTHENINGTHE RULEOF LAW4 (2006), available at 

http://pbpu.unlb.org/pbpu~view/viewdocummt.aspx?id=2&docid=85
 1. 
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. 

STROMSETH, WlPPMAN &BROOKS, supra note 2, at 137.

See section ILB.2. 'U.S.DEP'TOFDEFENSE, DIR.3000.05, MILITARY SUPPORTFOR STABILITY, SECURITY, TRANSITION

ANIYRECONSTRUCTION (SSTR) OPERATIONS para. 4 (28 Nov. 2005).

Chapter VII -Challenges 	 152 
, g, , g

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 their 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 than the military's goals. 

D. Forces that Oppose Rule of Law 

Counties 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 to of an absolute regime will be a highly political process. Many will stand to lose 

long-standing authority, social status, and financial interests. These actors, accustomed to 

unconstrained 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.' 

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 

See STROMSETH, WIPPMAN&BROOKS,supra note 2, at 37.

153 Chapter VII -Challenges 
legitimate military units, warlords, private for hire wed forces, organized crime cartels, 

extremist ideology organizations and economic ~r~anizations.~ 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. 

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 case load 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. 

Chapter VII - Challenges 
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." 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 fkom 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 

case during the rule of law planning process. To assist nations in developin a strategy to combat 

corruption, several 10s have offered varied conceptual frameworks.'' Some of the key 

components to reducing corruption typically include informing the public about govemance, 

opening up government processes, and establishing public official accountability. 

"Corruption, like terrorism, thrives on a lack of reliable inf~rmation."'~ Experience has 

shown that corruption has been reduced in countries where the population is more informed on 

political issues and more active in govemance. 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 

lo 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 FON~ on Reinventing Government - Citizens, Businesses, and 

Governments: Partnerships for Development and Democracy, 11-13 December 2002, at 3, available at 

http://unpan 1 .un.org/intradoc/groups/public/documents/uunpanOO5786.pdf (quoting WORLD BANK,

WORLDDEVELOPMENT REPORT1997 102 (1997)). I' Rory O'Hare, ASCOPE, Planning Acronym for the New Generation of Warfare, MARINECORPS 

GAZETTE46 (Jan. 2007). 12 STROMSETH, WIPPMAN &BROOKS, supra note 2, at 11. 

' 3 ~ ~ FOR ~SECURITY ~ AND ~ CO-OPERATION 1 ~ ~ IN ~ EUROPE, 1 OFFICE ~ ~OF THE CO-ORDINATOR FO 

ECONOMIC AND ENVIRONMENTAL ACTIVITIES, BEST PRACTICES IN FIGHTINGCORRUPTION (2004), 

available at http://unpan 1 .un.org/int~adoc/groups/publicldocuments/untc/panO 19 187.pdf. 

155 Chapter VII - Challenges 
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 hnctioning, 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 pacts'4 may be required as the government transitions to a 

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 conuption 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. 

l4 ORGANISATION FORECONOMICO-OPERATION AND DEVELOPMENT,A HANDBOOKON SSR, 

SUPPORTlNG SECURITY AND JUSTICE, CONFLICT, PEACE AND DEVELOPMENT CO-OPERATION118 (2007), 

available at www.oecd.org/dac/conflict/if-ssr.(discussing the use of "defense integrity pacts" (DPIs) to 

combat corruption in the procurement process by attempting to bind all bidders to agreed standards of 

ethical conduct). 

Chapter VI1- Challenges 
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.'5 

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 knowled eable and 

cognizant of the cultures, languages, and traditions of the people that we are assisting. ,H
 

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. 

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." 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. 

MAJ Sean M. Watts & CPT Christopher E. Martin, Nation Building in Afghanistarr -Lessot~s Identilied 

in Military Justice Reforn~~, ARMY LAW.1 (May 2006). 16 See generally COMBATING SERlOUS CRIMES INPOST-CONFLICTSOCIETIES, A HANDBOOK FOR 

POLICYMAKERS AND PRACTITIONERS (Colette Rausch, ed. 2006). I' DT.Frank Vogel, presentation to USACAPOC(A)/F'KSOI 3d Rule of Law Workshop (October 2006). 

157 Chapter VII - Challenges 
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." 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 cormpt 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 USoriented 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, and 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.I9 Atter all, 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 

UNITEDNATIONSDEPARTMENTOF PEACEKEEPINGOPERATIONS,PRIMERFOR JUSTICE COMPONENTS 

IN MULTIDIMENSIONAL PEACE OPERATIONS: STRENGTHENING THERULEOF LAW 6 (2006),available at 

http://pbpu.unlb.org/pbpu~view/viewdocument.aspxid=2&docid=851. 19 See section 1V.B.2on the legal obligations of occupiers. 

Chapter VII -Challenges 158 
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 

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 

issues is compounded. Most military units are understaffed and underfunded for stability 

operations, including rule of law. 

20 US AGENCY FOR INTERNATIONAL DEVELOPMENT, GUIDETO RULE OF LAWCOUNTRY ANALYSIS5 

(forthcoming2007). 

CENTERFOR LAW AND MILITARYOPERATIONS, FORGEDIN THE FIRE, LEGAL LESSONSLEARNED 

DURING MILITARYOPERATIONS 1994-2006 22 (2006). 
 

Id. at 29 
 

Chapter VII - Challenges 
missions by assisting in conducting RoL 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 JAs, 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 RoL 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 RoL and 

highlight them for the RoL JA. As no one person can possibly keep up with all the 

reporting available, the Paralegal could also accompany the RoL JA on inspection 

trips and offer a second set of eyes to those individuals involved in the 

inspection/assessment. 

Rule of law practitioners must be wise to invest scarce resources to targeted projects 

where they can a significant impact on the community. The underlining assumption is that 

financial resources are not 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 fining local tax-revenue schemes and commitment of local leaders. Thus, rule of law 

planners must balance the need for a one-year quick fix with the necessity to develop sustainable 

and enduring legal programs. 

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 

23 From Rule Of Law Lessons Learned MNC-I Rule Of Law Section Operation Iraqi Freedom 05-07 

(Dec. 10 2006). 

Chapter VII - Challenges 160 
ggpy pp

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 ~~reement~~ that sewed 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 

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 

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. 5,200 I), 

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:llwww.afghangovemment.comlAfghanAgr. 

25 LAUREL MILLER & ROBERTPERITO, UNITED STATES INSTITUTE OF PEACESPECIALREPORTNO. 1 17 ­

ESTABLISHING THE RULE OF LAW IN AFGHANISTAN 9 (2004), available at 

http://www.usip.org/pubs/specialreports/sr117.hhnl. 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 

161 Chapter VII - Challenges 
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. 

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."). ''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~esources has been recognized and one oossible solution is the recommendation offered bv 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 PIRITO, MICHAEL DZIEDZIC AND BETH DEGRASSE, UNITED

STATESINSTITUTEOF 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/sr 1 18.pdf. 

Chapter VI1 - Challenges 162 
performing (and will continue toperform) the rule of law mission because commanders see them 

as trained and prepared to deal with the unique issues presented in the operational environment 

dominated by rule of law concerns. Note that throughout this chapter the authors discuss tactics, 

techniques and procedures that are at odds with some of the principles set forth elsewhere in this 

Handbook. Again, this chapter was included not to reflect the perfect implementation of rule of 

law operations, but to illustrate the challenges that are inherent in such operations. 

A. Rule of Law Operations in Southern Iraq During OIF-I* 

The role of the Judge Advocate in the rule of law mission is largely defined by the variety 

of situations encountered in the area of operations and must consider the nature of the prior legal 

infrastructure and local cultural expectations regarding justice 

This section contains observations and comments based upon a JA mission to restore the 

rule of law in southern Iraq during Operation Iraqi Freedom beginning in April 2003, 

immediately following the cessation of large scale military operations. From April 2003 through 

March 2004 a political power vacuum arose in Iraq largely caused by the fall of the Baathist 

regime resulting in the complete absence of Iraqi governmental functions. One week before the 

coalition invasion in March 2003, the Iraqi legal system ceased operations, in anticipation of the 

fighting. Iraqi civilians destroyed and looted many courthouses. The judges from the Baathist 

regime fled their provincial capitals out of fear of civilian violence or arrest by the Coalition 

forces. Accordingly, Army and Marine Corps Judge Advocates assumed responsibility at the 

provincial level for a system with no functioning courthouses, no judges, and little clarity 

regarding the laws of occupied Iraq. 

A collection of Army and Marine Corps military commands, acting as an occupation 

force, established military governorships over the eighteen provinces of Iraq. These military 

governors, typically combat arms battalion commanders from the Marine Corps and Army, 

coordinated with CA personnel, their supporting JA personnel, and Coalition Provisional 

Authority (CPA) civilians in the Ministry of Justice (MoJ) in Baghdad to restore the rule of law 

amidst a turbulent "peace" and a growing insurgency. Under this arrangement, the JA mission 

evolved over time, and required coordination with Iraqi tribal leaders, local provincial officials, 

LTC(P) Craig Trebilcock, JA, USAR, served as 358th Civil Affairs Brigade's International Law Officer 

during OF-1 from March 2003 through March 2004. The author of this section, while an Army Judge 

Advocate, was assigned to provide legal support to the 1st Marine Expeditionary Force (I MEF) during 

OF-1, thus explaining the frequent references to the US Marine Corps. The observations herein apply 

equally to US Army operations as well. -1 
The rule of law mission that follows major combat operations will likely be a low priority 

for a military commander during the planning phase of combat operations. The commander, 

along with his planners will likely be focused on kinetic operations and thus have an eye toward 

winning the "fight". The JA advisor needs to recognize this and wait until the correct moment to 

mention that an integral component of reestablishing security in an occupied territory is the need 

to establish the rule of law. The JA staff must use the time while major combat operations are 

still underway to plan when and how to advise the commander on the rule of law mission. The 

moment will occur when the commander turns from his maps and asks, "What about the courts, 

judge?' and that is not the time to begin planning. 

As US operations in Iraq transitioned from major combat operations to occupation and 

reconstruction, the non-lawyer, long term planning staff within the 1st Marine Expeditionary 

Force (I MEF) G3 section viewed legal operations as an option to deal with after other critical 

infrastructure, such as waste treatment and hospitals, were reestablished. Preliminary discussions 

within the I MEF long range planning cell reached a consensus to begin rule of law operations 

90-120 days post-hostilities. 

The long range planning cell failed to recognize a functioning legal system as an integral 

prerequisite to reestablish security. This led to immediate problems for the US military 

governors. The absence of a functioning Iraqi court system quickly led to overcrowding in jails 

and coalition detention facilities throughout the provinces which became a human rights issue 

within 30-60 days of entering the reconstruction mission. Military governors were forced to 

choose between attracting criticism from human rights organizations or releasing potentially 

destabilizing criminals back into the civilian population. In short, by attempting to push the rule 

of law mission to the back burner due to a large number of other competing priorities, the 

commanders created a security and stability challenge for their command. A strong JA voice 

stressing the importance of the rule of law mission might have avoided this problem. 

Once the Iraqi courts in the South began to operate in summer of 2003, even at a fraction 

of their pre-war levels, prison overcrowding was alleviated. Truly dangerous criminals remained 

incarcerated, while petty thieves were fined and released. This not only reduced allegations of 

human rights violations and contributed to security, but also contributed to promoting a sense of 

"normalcy" returning to the Iraqi population. As a result, reconstruction efforts moved forward. 

The rule of law mission must not take a back seat during a military occupation. The 

restoration of justice enables all other societal functions to succeed. The deployed Judge 

Advocate must advocate the rule of law mission in all staff planning as major combat operations 

come to a close, even while the command's primary focus may still be upon combat operations. 

Chapter Vlll - Project Narratives 
based upon good intentions, the decision-making process neglected the history and legal 

traditions of the Iraqis in that area. Instead of success this move generated a subsequent raucous 

civil disturbance that occurred when the local population (men and women) protested the 

swearing-in ceremony. The Judge Advocate needs to be intimately involved in the decisionmaking process in order to avoid situations such as this one. 

c) Be aware that command structure impacts mission success. 

In the northern half of Iraq in 2003-04 the reconstruction of the Iraqi Legal system was 

coordinated by Division SJA offices with the assistance of local CA units. In the South this 

mission was performed by the US Army CA Government Support Teams (GSTS)' under the 

operational control of I MEF. GSTs in the South worked at the battalion level within each 

province and coordinated directly with their battalion commanders and local Iraqi officiak2 

Divisional and corps-level (the corps level being the I MEF) Judge Advocates played more of a 

general oversight and advisory role. In short, the rule of law mission was more of a top-down 

affair in the North, while in the South it was a loose confederation of GSTs directing matters at 

the local level. 

The decentralized employment of CA forces (including their organic JA personnel 

carrying out the rule of law mission) in the South was to have significant consequences for 

communication and efficiency in national and regional legal reconstruction efforts. Rather than 

establishing a central coordinating JA or CA authority, the CA battalion commanders were 

directly responsible to the maneuver commanders and G3 sections at the battalion and divisional 

level. The units conducting the rule of law mission only had an accountability relationship with 

the 352nd Civil Affairs Command (CACOM) headquarters in ~a~hdad.~ There existed no CA or 

JA personnel directing or coordinating rule of law reconstruction operations across southern Iraq. 

' GSTs were the CA organization established in each province to serve as an interface between the Iraqi 

populace and officials and the military and to be the civil administration face of the local military 

governor. The GSTs were tasked by the military governors with getting the provincial Iraqi bureaucracies 

running again and overseeing the reconstruction of critical infrastructure within the province. Ranging in 

size from twelve to twenty four CA operators, GSTs were comprised of CA officers with subject matter 

expertise on issues ranging from public health to law enforcement to civil engineering. A typical GST 

would have a Judge Advocate, a fiscal officer, a logistics and engineering officer, a medical expert, an education officer, and a law enforcement officer, among other specialties. Most GSTs had a Judge 

Advocate in the rank of captain or major to conduct the rule of law mission. 

Interview with COL Michael O'Hare, SJA, 358th CA BDE, in Camp Doha, Kuwait (Nov. 14,2003). 'The 352d Civil Affairs Command (CACOM), assigned to the Green Zone in Baghdad, had no authority 

to task CA units in the field that were assigned to the Marine Corps or Army divisions. 

165 Chapter Vlll -ProjectNarratives 
involving emergency civil administration and relocating or evacuating civilian personnel. Their 

mission history and doctrine, however, does not allow for the type of long term national and 

regional reconstruction projects necessary to build a government from the ground up. 

Recognizing that their own doctrine and training did not readily fit the large scale Civil Military 

Operations (CMO) mission likely to be encountered in lraq,' the Marines requested US Army 

CA units to operate with them. Largely due to the difference in force structure and doctrine the 

Marines also did not fully appreciate the doctrine and capabilities of an army CA battalion or 

brigade before the Coalition entered ~ra~.~ 

I worked in the I MEF future plans cell from April through September 2003 as a liaison 

for my Army CA brigade. It was clear that the Marines did not know what to do with the 

CA brigades, with their high rank structure and their minimal vehicular and logistic 

support. It took until late June 2003 for them to understand the capability the brigade 

brought to them in terms of subject matter expertise and their ability to coordinate 

between CPA, NGOs and the military? 

Thus, the command structure in southern Iraq during OIF-1 provided the individual Judge 

Advocate, operating within a GST, a substantial level of professional latitude to set priorities for 

the rule of law mission. Conversely, the rule of law mission lacked coordination across the 

In a talk with the troops of the 358th CA BDE before they crossed into Iraq, BG Kern, CDR, 352d 

CACOM told the unit officers, "Do what is necessary. I'll back you up." BG Kern, ArifJan, Kuwait (Mar. 

24,2003). That general encouragement was the scope of direction provided y the highest ranking CA 

officer in theater at the time as to what Civil Military Operations (CMO) would be in Iraq. 

Despite lacking a long term doctrine, the USMC CAGs performed extremely well in Iraq, being largely 

responsible for the rapid reestablishment of modest civil Government and essential government services 

in An Nasariyah and A1 Kut within weeks of those provincial capitals being occupied by the Coalition. 

During training with 2 MEB forces at Camp Lejeune, NC in the Fall of 2002, it became clear that the 

Marine planners believed that a CA brigade was a self-supporting brigade akin to an infantry brigade, 

comprised of a couple thousand troops, with their own vehicles and logistics support, rather than the 145 

person CA headquarters unit that it actually was. 358th After Action Report, MEFEX 2002. The Marines 

were also overwhelmed by the high rank structure of an Army CA unit, with its more senior and 

experienced civilians coming from legal, medical, engineering, and other professional backgrounds. The 

lean Marine Corps had one officer in the rank of LTC wearing the dual hats of battalion commander and 

military governor to oversee each of its seven provinces. The 358th Civil Affairs Brigade, which 

supported the I MEF in that mission, sent a 145 person brigade headquarters consisting of sixteen 06's, 

and twenty three 05s, among other officer ranks. The supporting CA battalions brought a dominating rank 

structure as well, containing more CA 05s and 04s than an entire Marine combat brigade. This made 

integration difficult. 

Interview with LTC John Taylor, CA, USAR, in Camp Babylon, Iraq (Sept. 14,2003). 

Chapter Vlll -Project Narratives 166 
g, y j, 

administrative law, and claims. 

For future rule of law missions conducted on a large scale, a combination of the 

approaches of the coalition in northern and southern Iraq may yield the best results. The GST 

model of Judge Advocates operating at the local level in the North and focusing exclusively 

upon the rule of law mission worked at the tactical level, but was largely ineffective on a 

regional level due to lack of coordination across provincial/command boundaries. The Marine 

Corps chain of command structure in the South initially prohibited lateral communications 

between JA personnel in different provinces and required all such messages to proceed through 

formal G3 channels where they were reviewed and often delayed by combat arms personnel with 

no expertise in evaluating the importance of the legal issues transmitted. These delays often 

rendered the reply moot by the time it was received as events overtook and bypassed the issue of 

the moment. As such, a GST structure for the rule of law mission that is coordinated by JA or 

CA personnel through technical channels on a regional or national level, would likely be the 

most effective in a rule of law mission. 

The deploying Judge Advocate must depend upon himself and his technical chain of 

command to plan and prepare for the rule of law mission. In the pre-deployment stage the 

planners and commanders will likely not focus extensively upon the rule of law mission. Rather, 

they expect the Judge Advocate to know what is required for rule of law mission success. 

a) Anticipate and bring foreign legal resources. 

During the planning stage of an operation be cognizant of the personnel and supplies 

needed for mission accomplishment. In OF,the battalion and brigade level CA Judge Advocates 

responsible for restoring the southern Iraqi legal system deployed without a copy of the laws of 

Iraq. Despite six months of preparation for operations in Iraq for prior to commencement of 

Described generally as from the northern outskirts of Baghdad to the northern Iraq border. 

The legal system of the Kurdish (northern) area of Iraq required very little assistance from US forces, as 

the Kurds had been operating their own semi-autonomous government structure in northern Iraq since the 

imposition of the "No-fly" zone by US forces following the first Gulf War. This system was free of the 

Baathist influences of the South and did not suffer extreme physical damage during OIF. 

'O The 358th CA Bde placed a planning team with the 4th ID in Tikrit in September 2003 to develop a 

strategic plan for restoring Government functions, including courts. However this team, with its one JA 

Captain was engaged only in planning, not in the oversight of the courts or the implementation of policy. 

Interview with CPT Frank McGovern, JA, in Tikrit, Iraq (Feb. 12,2004). 

167 Chapter Vlll - Project Narratives 
rescinded. Once major combat operations ceased, the CPA declared it was responsible for all 

executive, judicial, and legislative hnctions within 1raqI2 but did not execute, legislate, or 

distribute the new laws to the provinces for nearly three months. The uncertainty as to applicable 

law led Iraqi judges to refuse to adjudicate cases. As a result, no cases were adjudicated in April 

and May of 2003 - even in the few provinces with undamaged court facilities and available 

judges. The overcrowding of prisons became an increasing problem as coalition troops continued 

their law enforcement activity." Thus, one can argue that some of the prevalent security 

problems on the ground can be traced to Judge Advocates who deployed without possession or 

knowledge of the laws of Iraq. 

In retrospect it may seem bizarre for a Judge Advocate to deploy to a rule of law mission 

without a copy of the laws of the occupied nation. This raises another good planning lesson. A 

Judge Advocate must anticipate how the mission might change without notice. In the 

terminology of a planner this is known as a branch planning. Prior to deployment to Iraq the CA 

Judge Advocates prepared for a massive humanitarian crisis involving Iraqi civilians. Weeks of 

training went into the anticipated refugee mission, including decontaminating "gassed" refugees, 

emergency medical care, and the establishing short term refugee camps. In accordance with 

International Committee of the Red Cross (ICRC) and Geneva Convention requirements, Judge 

Advocates wrote draft rules for governing refugee camps and returning refugees to their homes. 

Separate from the refugee flow, Judge Advocates also prepared for Article 5 Tribunals and the 

administration of detention facilities for enemy prisoners of war (EPWS).'~ Although the 

deploying Judge Advocate received hundreds of hours of tactical training, no training on the 

Iraqi legal system or government structure occurred at the CA brigade or battalion level. The 

mission was refugee focused and requests through command channels for a copy of the laws of 

Iraq prior to deployment went unanswered.15 Judge Advocates attended a three day seminar at 

Fort Dix, NJ in early 2003 learning extremely valuable cultural background information on the 

Iraqi Kurds, Sunnis and Shiites, and other important information concerning the religion of 

Our British comrades in arms fared no better, having to arrange a helicopter flight to Kuwait a month 

after hostilities began to obtain a copy of Iraqi laws in English from a US Army CA unit. 12 CPA General Order Number 1 (May 16,2003), available at 

http:Nwww.iraqcoalition.org/regulations/20030516-CPAORR 1-DeBa-athitication-of-Iraqi-Society_.pdf. 
 

l3 Interview with CPT William Britt, CJA, 432d CA Bn, Ad Diwaniyah, GST (June 6,2004). l4 Interview with COL Michael O'Hare, SJA, 358th CA BDE, in Nonistown, PA (Dec. 1,2004). l5 "We requested a copy of the Iraqi Constitution and the criminal laws months before deploying, but we repeatedly ran into higher echelons who were too focused upon the huge logistical strain of the 

deployment, rather than upon details like 'how will we run the counhy?"'Id. 

ChapterVIll - Project Narratives 168 
warning, and with only the broadest outline of a plan.'P The various commanders tasked the 

restoration of the rule of law mission to Army and Marine Corps civil affairs Judge Advocates in 

southern Iraq, and to divisional SJA staffs with the Army divisions in Baghdad and the North. 

Accordingly, with the exception of products pulled by individual units from the Internet, 

the Judge Advocates who deployed to Iraq in anticipation of a major humanitarian emergency, 

found themselves in charge of a foreign legal system without a copy of its laws, procedures, and 

traditions. Fortunately, several members of the Free Iraqi Forces who entered Iraq with the 

Coalition had been attorneys in Iraq before becoming expatriates living abroad." These Iraqi 

attorneys provided substantive information regarding the structure and day to day operations of 

the Iraqi legal system enabling the Coalition Judge Advocates to assist in its restoration. 

From a rule of law mission perspective, OIF-1 was planned and performed on the fly.I9 

Future Judge Advocates deploying to any mission that could potentially evolve into a rule of law 

mission should find a copy of the major criminal laws and procedure of the area of operations 

and pack those with their other legal resources without, of course, jeopardizing operational 

security. These resources are generally available from the Library of Congress or from major law 

school libraries. 

b) 	 Plan in advance for a structure through which to communicate with local 

officials. 

When the planned-for refugee mission in OIF-1 did not develop, a lull of several critical 

weeks in rule of law operations occurred while staff planners deliberated how to utilize their 

CNJA assets to control the Iraqi bureaucracy and restore the rule of law. The planners devised 

the concept of CA GSTs and initiated expedited training in Kuwait for Army CA troops who had 

yet to cross into Iraq. GSTs were established in each southern province establishing an interface 

between the Iraqi populace/officials and the US military. Ranging in size from twelve to twenty 

four CA operators, the GSTs acted as the civil administration face of the local military governor. 

l6 Id. 

"The transition from Phase 3 to Phase 4 operations occurred abruptly and much sooner than we expected. The Marines, who had seemed to forget their Army Civil Affairs units even existed during the 

drive on Baghdad were screaming for them to get into action as soon as possible when the fighting 

stopped. The only problem was that there was no plan for what many of the units were supposed to do." 

Interview with LTC John Taylor, supra note 7. '' Interview with COL O'Hare, supra note 14. 

l9 The training of the GST personnel from the Army CA battalions who were to administrate the southern 

Iraqi provinces for the I MEF did not occur until April 6-8,2003. 

169 	 Chapter Vlll - Project Narratives 
nuances of a civil law based court system (akin to the French magistrate code system), to 

military attorneys who were used to operating in a system characterized by common law court 

precedents2' 

A lesson from OIF-1 was that valuable time was lost in carrying out reconstruction 

operations and restoring government services when Judge Advocates were deployed without 

needed legal resources and did not receive advance training for their mission. Assumptions that 

there would be adequate time to conduct such training in theater were wrong. 

c) Do not expect local officials to be of initial assistattce. 

In Iraq one of the initial challenges was simply finding Iraqi oficials and judicial 

personnel. Fearing the Coalition invasion and possible post-hostilities retaliation against those 

who had supported the Baathist regime, many Iraqi judges and prosecutors fled. 

Accordingly, there was a vacuum of authority and very few persons remaining in the 

provincial capitals who would even inform the coalition of the identity or location of former 

members of the Iraqi judiciary. Court records were either hidden in advance of the invasion or 

destroyed by Iraqi looters. 

Those who state, with hindsight, that it is best to allow local officials to control 

government operations during an occupation may be correct in theory, but in practical 

application those planning a rule of law mission must anticipate how that will be accomplished if 

the local officials are simply no longer physically present. 

In OIF-1 it took several weeks of inquiries and coordination across command lines to 

locate the Iraqi judicial officials and convince them to return to their provinces. Once they 

became convinced that US troops were looking for cooperation, not retaliation, this became an 

easier task. 

3. Coordinating Among Participants in Rule of Law Operations 

In the summer of 2003 the lack of communication and coordination was one of the major 

challenges to the rule of law mission in Iraq. Even in the absence of extensive insurgent activity, 

implementing the rule of law mission in Iraq was difficult and uncoordinated. Lateral 

communication across provincial lines was limited by the inadequacy of communication 

20 "We wasted so much time just learning their system that could have been put to better use actually 

doing something. We lost at least a month just trying to understand how the Iraqi system operated. By 

losing that month we lost a lot of local goodwill that we had to struggle to get back." Interview with CPT 

David Ashe, JA, USMC, in Samawah, Iraq (Aug. 2003). 

Chapter V111 -Project Narratives 170 
its effectiveness can be reduced by lack of centralized coordination. 

The GST model placed JA resources with expertise in civil government administration in 

direct contact with Iraqi officials who required direction and coordination. The GST teams 

brought legal, public health, medical, logistic, engineering, and law enforcement oficers from 

CA units to the Iraqi provinces to restore necessary government service^.^' By coordinating 

policy from the Coalition military governor with local Iraqi leaders there was a constant flow of 

information between the Coalition and Iraqis that promoted cooperation and accurate; 

communication ensuring all resources pulled in the same direction. Civil Affairs Judge 

Advocates in GSTs worked directly with the local judiciary to provide supplies, reconstn~ction 

assistance for damaged courthouses, payment of court workers salaries, replacement of 

cormpffhighly placed Baathist judges, et~.~~ Accordingly, within most provinces there was a 

unity of effort to restore the legal system, resulting in some courts restoring operations within 60 

- 90 days after the cessation of high intensity combat. This all in spite of significant physical 

damage from ~ooters.~' 

In the spring and summer of 2003, the lack of any coordination from any central or 

regional authority from the Iraqi MoJ operating under the CPA served to limit the effectiveness 

of the GST reconstruction and aid efforts. GSTs operated autonomously but remained subject to 

direction from the battalion commanders serving as provincial military Governors. Accordingly, 

GSTs encountered similar problems in each province but each GST separately devised a policy 

to solve the problem. By way of example, there were significant problems convincing the MoJ to 

release funds to pay judges and court personnel.24 This was an issue common to each province 

and one universal policy or solution should have been instituted. There existed no central 

coordination of overall efforts of the GSTs either on a regional or national basis. As a result, 

each GST attempted to communicate its own priorities to the CPA controlled MoJ and Ministry 

LTC Craig Trebilcock, 358th Civil Affairs Brigade After Action Review, Legal Assessment of 

Southern Iraq (2006) (hereinafter Legal Assessment of Southern Iraq). 

22 Id. ''The courts in Babil, Karbala, and Najaf provinces were operating by the end of June 2003. Interview 

with MAJ Craig Bennett, JA, Al Hillah GST (July 2003). 24 Other issues of common interest that were handled in a decentralized fashion on a province by province 

manner were obtaining funding for courthouse reconstruction, replacing legal resources and libraries that 

had been destroyed by looters, obtaining general operational funds for each courthouse, and devising 

methods to replace conupt Baathist judges and select new judges. 

171 	 Chapter VlII - Project Narratives 
conduit to communicate common issues arising in the provinces saved hours of travel for the 

GST Judge Advocates, reduced the flow of repetitive requests, and provided consistency in the 

communications fiom the CPA to the GSTS.~' Thus, providing a communications avenue 

through technical channels to the policy makers in Baghdad improved coordination of the rule of 

law mission. 

b) 	 The Judge Advocate can play an important role interfacing with government 

and non-governmental organizations. 

During OIF Judge Advocates performed many missions to include that of liaison officer 

with NGOs operating in the area of operations. There is often a strained relationship between 

many NGOs and the military. Many NGOs wish to rely solely upon the intelligence available 

through military briefings as to the level of danger in a given region, such as minefields. Yet 

those same NGOs often have strong policies against direct cooperation with the Coalition due to 

the fear of being viewed as an agent of the USG or military and thereby becoming targets of antiCoalition attacks. Many NGOs are philosophically opposed to the use of military force, but may 

work towards the same goals as military units to provide humanitarian assistance and stabilize 

the occupied country. 

Civil Affairs Judge Advocates found a positive role to play in interfacing with NGOs 

through the Humanitarian Operations Center (HOC), For instance, the government of Kuwait 

established the HOC in Kuwait City to coordinate humanitarian aid to Iraq. Additionally, Judge 

Advocates also interfaced with NGOs within Ira in Humanitarian Assistance Coordination 

Centers (HACC) established regionally within Iraq. 3
 

One of the roles that the CA Judge Advocate played in the HOC was to resolve border 

crossing issues for NGOs. Both US forces and Kuwaiti forces controlled access points from 

Kuwait into Iraq. NGOs were permitted to use only certain crossing points for security reasons 

2s Legal Assessment of Southern Iraq, supra note 21. 
 26 CPA repeatedly expressed plans to appoint legal regional coordinators to improve coordination and 
 

efficiency, but was hampered by lack of available personnel in theater. Interview with Mike Dittoe, CPA, 
 

Ministry of Justice, in Baghdad, Iraq (July 2003).Through August 2003, the CPA Ministry of Justice 
 

responsible for legal affairs in the entire country consisted of a retired military Judge Advocate acting as 
 Minister, one Department of Justice attorney acting as an operations officer, and a USAR JA I LT, 
 

supported by a minimal local national Administrative staff. These resources were barely adequate to 
 

administer legal affairs and operations in Baghdad, but overwhelmed with working on issues in the other 
 

17 provinces. Id.
 ''Interview with COL O'Hare, supra note 14. 
 28 Inte~iewwith CPT Frank McGovern, JA, in A1 Hillah, Iraq (July 2003). 
 

Chapter Vlll - Project Narratives 	 172 
advance notice to US troops that they would have to assume additional duties in the near 

future.30 

c) 	 Be prepared to operate without the benefit of communication assets or directiotr 

from superiors. 

The limited communications assets hampered the Judge Advocates ability to successfully 

conduct rule of law missions and restore and coordinate Government offices across hundreds of 

miles. SINCGAARS is a tactical system effective, when working, only for communications 

within the immediate region such as a provincial capital or on tactical convoy movements. 

In an austere environment such as Iraq, a satellite phone would be ideal for CA 

reconstruction missions. The satellite phone should be part of the standard equipment for any 

Judge Advocate conducting a rule of law mission. Satellite phones were available during OIF, 

but provided primarily to unit commanders and primary staff to communicate with and report to 

higher headquarters. Such phone assets were not employed at the tactical level. As a result, a 

Judge Advocate was unable to instantly communicate with CPA or higher headquarters across 

long distances. A satellite phone may have solved this problem and made it possible to restore 

provincial government operations within weeks instead of within months. 

In the absence of such assets, communication with the provinces in OIF-I was essentially 

done by the equivalent of pony express. Judge Advocates operating in the provinces found 

themselves personally organizing convoys on a weekly basis to carry information or queries to 

CPA officials in Baghdad. The closer the province was to Baghdad, the more able it was to 

regularly maintain contact, provide information, and receive feedback. A Judge Advocate in a 

distant provincial capital in southern Iraq such as Samawah or An Nasariyah could not attend 

CPA reconstruction meetings in Baghdad and still maintain day to day contact with his province. 

A trip to Baghdad for a Judge Advocate in an outlying province turned into a two or three day 

affair. Accordingly, the further away that a GST was from Baghdad, the worse the 

communication and coordination. Progress in reestablishing the rule of law in those outlying 

provinces lagged due to lack of direction, coordination, and assets. 

29 Interview with COL O'Hare, supra note 14. 
 30 Interview with MAJ Chris Stockel, CA, GST coordinator for An Nasariyah (July 2003). 
 

173 	 Chapter Vlll - Project Narratives 
during the Spring and Summer of 2003, was not prepared to implement a vetting and judicial 

review program outside of ~a~hdad.~~ This was due to several factors, including the lack of US 

civilian personnel to run the MoJ in Baghdad, nonexistent lines of communication between the 

CPA and military governors in each of the Provinces, and no CPA personnel from the MoJ 

present on a provincial or regional level to oversee the court^.^' 

Accordingly, faced with prisons and jails overcrowded with looters and criminals 

released by Saddam immediately before the war, and confronted by the expectations of the 

liberated Iraqis to remove the remaining remnants of the Baath regime, military governors, by 

sheer necessity, assumed responsibility for vetting judges so that the courts could begin working 

again.36 

Lacking central guidance, each military governor, in coordination with his SJA and 

supporting CA Judge Advocates, created rocedures for vetting incumbent judges to determine 

whether they would remain on the bench."The common tools employed to screenjudges were: 

To poll the local provincial legal union (bar association) for its collectiveopinion of 

the judges Baathist sympathiesand reputation for corruption 

To poll the opinions of the local tribal sheikhs and municipal officials 

To question each judge individually as to his prior links to the Baath regime, as well 

as those of other local judges 

To discuss with local business persons the reputations of the various judges 

None of these procedures was reliable to measure judicial ethics and suitability. Many factors 

influenced the opinions of those questioned. Religion, as always, was a complicating factor, with 

"Id. 

32 m. 


'9MEF Weekly Legal Report (July 23,2003).
 34 Interview with Mike Dittoe, CPA Ministry of Justice, in Baghdad, Iraq (July 14,2003).
 35 CPA Ministryof Justice plans to install Regional Directors who would provide oversight and 


consistencybetween the different provincial courts were repeatedly delayed throughout 2003-2004 by 


lack of available personnel from the US Department of Justice and the unavailabilityof funds to support 


the positions. Interview with Mike Dittoe, CPA Ministry of Justice, in Baghdad, Iraq (Aug. 15,2003). 
 36 See I MEF Weekly Report input by SPC Rachel Roe, (July 17,2003)(indicatingthe ongoing vetting of 


judges by the military governor of Najaf, due to the absence of any activity in restoring the provincial 


court systemby CPA). Although not a JA, SPC Roe, a lawyer,was in charge of administeringlegal 


affairs and restoration of the Najaf court system for the Najaf GST. 
 37 Legal Assessment of SouthernIraq, supra note 21. 


Chapter Vlll - Project Narratives 	 174 
ppy pypy 

a cultural phenomenon -one had to do so to survive in the harsh Baathist system -and partially 

a product of the fact that Saddarn paid his judges extremely low salaries. One could not apply 

western standards of judicial ethics to Iraq without disqualif 'ng virtually every sitting judge and 

rendering the country without any functioning legal system. A' 

Accordingly, Judge Advocates compromised and only judges who continued to accept 

bribes and issue improperly influenced verdicts after the Coalition assumed civil control were 

remo~ed.~' Pursuant to CPA direction, judges who were in the top four tiers of the Baath party 

were also removed but it often took months to determine who those persons were, as many 

records were destroyed and Iraqis were always accusing each other of being Baathists for a 

variety of personal motivation^.^^ With one exception in Wassit province, every judge 

interviewed in the seven provinces under I MEF control denied ever having been a Baath party 

member.43 This denial was made despite the fact that it was common knowledge within the MoJ 

that one was not appointed as a judge without Baath party membership.44 

Coalition military governors used different mechanisms to remove and replace judges. 

Each of them contained some level of Iraqi input and ownership in the decision. This was a very 

important message to send early in the occupation to convince local Iraqis that the purpose of 

military intervention was liberation, not d~mination.~~ While the situation in 2003 was not stable 

enough to organize popular elections, coalition military governors established committees of 

local authorities to make recommendations to retain or fire judges. These local provincial 

committees were often comprised of the legal union members, tribal leaders, other community 

leaders of note, and a Coalition Judge ~dvocate.~~ 

Due to the lack of CPA presence or action in the provinces beyond Baghdad, the vetting 

process functioned at the provincial level, with the authority to recommend removal of 

cormpt/Baathist judges and to nominate new judges, typically from the local legal union.47 The 

38 Id. 

39 Id. 

40 Id. 

4' I MEF Weekly Legal report (July 17,2003). 
 42 Interview with Capt. Sean Dunn, JA, USMC, in Al Kut, Iraq (Aug. 2003). 
 43 Interview with LTC(P) Michael O'Hare, Acting SJA, 358th CA BDE, in Camp Babylon, Iraq (Aug. 9, 
 

2003).


44 Interview with Mike Dittoe, supra note 35. 
 45 '

Interview with MAJ Craig Bennett, JA, in A1 Hillah, Iraq (Jun. 15,2003). 
 46 Id. 
 47 Legal Assessment of Southern Iraq, supra note 2 1. 
 

Chapter Vlll -Project Narratives 
The process, borne of necessity, permitted courts in some portions of Iraq to return to a 

functioning state as early as June 2003.~~ 

Unfortunately, some of the positive steps and credibility gained in this more informal 

selection process were later set back by a formal, belated vetting process conducted by the CPA 

in August through October 2003. Attempting to demonstrate centralized control over the 

judiciary by the MoJ in Baghdad, the CPA repeated the same vetting and selection process 

already conducted by the military governors. The CPA established a fonnal judicial review 

committee in Baghdad that conducted its review process well into October 2003. While wellintentioned, this process consumed many man hours and came too late to be of relevance to 

ensure it purged the judicial system of corrupt or anti-coalition e~ements.~' In the overwhelming 

majority of instances the committee simply validated what military governors had done months 

before. Repeating the process was a source of confusion and anxiety to the local judges who 

were confused why they were subject to further review after having already been approved by 

the military governor. In addition, allowing a different Coalition body to repeat the same review 

process undercut the local authority of the military governor.5' 

The lesson learned is that, in order to restore the rule of law and security in a prompt 

manner, there must be a timely judicial review process established simultaneously with any 

attempt to restore civil order. This process should be done only once. Also, as uncooperative 

local officials will seize upon any appearance of inconsistency or divisiveness, there must be 

coordination of effort and communication between the designated civilian leadership and the 

military authorities tasked to carry out the reconstruction mission. 

e) 	 Establish aveiiues of communication between civilian occupational authorities 

arid military governors. 

The model for military governance of occupied Iraq under OIF-1 largely mirrored the 

Iraqi civil system it replaced in structure. The ministries in Baghdad, administered by CPA 

officials, remained the centers of political power and promulgated laws, policies, and guidance to 

the eighteen provinces of haq:* but the centralized ministries under CPA were understaffed, not 

48 I MEF Weekly Legal Report (July 17,2003). 49 Legal Assessment of Southern Iraq, supra note 21. 

50 Id. 

I' "Our judges got the first sense that there were rifts in the Coalition that they could exploit for their 

advantage when CPA began repeating the vetting process. After that they began to resist direction from 

Judge Advocates in the field, often indicating they wanted direction from Baghdad." Interview with CPT 

Dunn, supra note 42. 52 Legal Assessment of Southern Iraq, supra note 21. 

Chapter Vlll -Project Narralives 	 176 
Cell phone service was nonexistent. Tactical military communications systems had inadequate 

range to transmit across the vast distances between the provincial capitals or to Baghdad. Even 

had the range been adequate, the CPA did not have any military communications system 

capabilities. Accordingly, the first critical months of the OIF occupation were characterized by 

the provinces under military governorship communicating by tactical military communications, 

while CPA officials operated internally on civilian Baghdad phone lines or by email." 

Even the several regional CPA offices were essentially isolated from the military 

operations conducted right in their immediate vicinity. CPA South-Central, located in Al Hillah, 

Iraq, maintained communications with CPA in Baghdad by email and satellite phones during the 

summer of 2003. Yet the battalion level Judge Advocates who were reconstructing the legal 

systems under CPA South Central jurisdiction had neither email nor satellite phones. 

Accordingly, the CPA regional administrators rarely coordinated with the JA operators located 

only 10 kilometers away in their own back yard.54 

No one could talk to anyone else during the several months after the fighting stopped. 

CPA was speaking one language, military commanders were using tactical nets within 

their province, and the GSTs had neither system, largely relying upon travel by 

HMMWV to find or convey information. This led to a lack of information flow from 

CPA that turned each province into a separate fiefdom lacking centralized direction." 

The lack of communications capability led to lack of coordination of effort between CPA 

in Baghdad and CNJA reconstruction efforts within each province. GST teams responsible for 

coordinating the reestablishment of essential government functions in each province did so 

through their own initiative, ignorant of policies and laws promulgated in Baghdad. This led to 

occasional embarrassment and an appearance of disorganization in the eyes of the ~ra~is.'~ 

For instance, CA Judge Advocates in the southern half of Iraq were completely unaware 

that the CPA published a new code of laws for the country and a Legal Gazette in August 2003. 

This undercut the authority of the GSTs who previously provided guidance to the Iraqi judges as 

to which laws were to be enforced and which were suspended.57 

53 Interviews with MAJ Craig Bennett, supra note 23 and Mike Dittoe, supra note 35. 54 r>1u. 5s Interview with MAJ Craig Bennett, supra note 23. 56 Such as when provincial judicial elections organized in Najaf by the GST and military governor were 

cancelled one week before they were to be held, when Ambassador Bremer belatedly became aware of 

them. I MEF Weekly Legal Report (July 11,2003). 57 Interview with CPT Dunn, supra note 42. 

Chapter VIII - Project Narratives 
of southern Iraq as well as other government reconstruction issues! This method of in-person 

communication, while cumbersome and occuning only on a weekly basis, was essential to create 

a link between the perception at CPA in Baghdad of the state of legal affairs in the provinces and 

the reality occumng on the ground. 

Once the meetings began in Baghdad between CPA MoJ and the CA JAGS began we began to step on each other's toes a little less often.60 

The lesson learned kern this experience is that there must be coordination between the 

occupational government setting policies and the military personnel tasked with restoring 

government functions. If technical issues or the physical environment prevent audio 

communications across long distances, the Judge Advocate must establish a system to report and 

share' information immediately following the cessation of major hostilities. This will avoid 

duplication of effort, inefficiency, and the appearance of an inability to maintain effective control 

of the occupied temtory. 

fi 	 Communications for the rule of law missiori has to occur outside normal 

command channels (as well as within) it1 order to be effective. 

The US Marine commanders during OW,whose own CAG assets are designed to operate 

at the tactical level for short periods of time, did not initially understand the need for lateral and 

informal communications across command lines. The Commander, 1st Marine Division (1st 

MARDIV), who had operational command authority over operations south of Baghdad, initially 

ordered all Marine and Anny Judge Advocates in southern Iraq to provide their reports and 

recommendations solely to the 1st MARDIV G3, who would in turn forward that information (if 

deemed important) to the I MEF (Corps level) G3. The I MEF G3 would then provide any 

information deemed important to the commanders of CA units and to the G3 of Joint Task Force 

7. 

While such an arrangement is expected in combat operations to control information flow, 

it was less useful in reconstruction operations, where informal coordination was needed. This 

arrangement turned military operations personnel, without any JA or legal training whatsoever, 

into gatekeepers, determining what legal information to communicate up and down the various 

ss Id. 59 Interview with LTC John Taylor, supra note 7. 
 M) Interview with COL Durrett, I MEF SJA, in Camp Babylon, Iraq (June 20,2003). 
 

Chapter Vlll - Project Narralives 	 178 
them because they were an IMEF asset and we answered to the marine battalion 

commander in charge of Babil Province and to the CDR 1st MARDIV. This bureaucracy 

killed our ability to coordinate and limited our effectivene~s.~' 

The consequence of the lack of information sharing was that vital information necessary 

to reconstruct the Iraqi legal system on a regional and national basis was not forwarded up to the 

command levels in Baghdad and coordination of effort from the higher echelons did not reach 

the battalion level Judge Advocates restoring provincial level government operations. 

This reporting arrangement continued from April 2003 until July 2003, when the real 

world consequences of the lack of coordination became apparent. Overcrowded jails plagued the 

provinces and criminals were released without trial. The lack of funding from the MoJ to repair 

damage caused by Iraqi looting left many courts inoperable in mid-summer 2003. Those in need 

of funding did not properly communicate their need through Marine Corps operational channels 

to I MEF and JTF 7. Non-legal operational personnel in the G3 section viewed courts and legal 

issues as a matter to deal with at an unspecified future date akin to schools and libraries and not 

as an essential government function such as finance, public health, or restoring the flow of 

A Judge Advocate adds value to the command by his ability to operate independently and 

establish relationships, locate human and material resources, and bring organizations together 

across municipal, provincial, and national levels of government. Inadequate reporting and 

command channels, which was inconsistent with the CA mission to restore and coordinate local, 

provincial, and national level government functions prevented the Judge Advocate from adding 

value in this regard. 

A Judge Advocate's ability to control his own reporting channels and directly influence 

the structure of command relationships is limited. However, as a legal advisor to commanders, 

the lesson learned is that it is critical that the Judge Advocate voice hisher opinion when 

command structure and its attendant restrictions impair accomplishment of mission goals. During 

OIF reconstruction of the Iraqi legal system could have occurred in a coordinated manner, but 

precious months were lost due to senseless restrictions on information flow. These restrictions on 

direct coordination were removed in July 2003. In mid-June 2003, LtGen Conway, CDR I MEF, 

authorized brigade level CA elements attached to the I MEF to begin direct coordination with 

their counterparts in the 352d CACOM in Baghdad and with the battalion level CA operators 

61 Legal Assessment of Southern Iraq, supra note 21. 
 

62 350th CACOM Judge Advocates wore the dual hats of CA advisors for Commander, JTF 7 and as 
 

liaisons to the CPA-controlled MoJ in Baghdad. 
 63 Interview with MAJ Craig Bennett, supra note 23. 
 64 Interview with COL Michael O'Hare, SJA 358th CA BDE, in Nomstown, PA (Jan. 5,2005). 
 

179 Chapter Vlll - Project Narratives 
g f p

a) 	 Ensure a continuous and active JA presence at the courthouse to implement US 

policy. 

While it was important to give the Iraqis a sense of responsibility for their own legal 

system, they must be reminded they were occupied, in part, due to a previously dysfunctional 

political and legal system known for human rights abuses, rejecting the rule of law, and 

widespread corruption. The Judge Advocate played a central role in OW as the US official 

responsible for bringing change to the Iraqi court system. 

Atmy Judge Advocates with the Marine Corps in southern Iraq found that Iraqi judges 

really did not operate as "judges" in the sense we understand in the West by examining 

testimony and evidence under applicable law and then making an impartial decision based upon 

the application of the law to the given set of facts. Rather, Iraqi judges operated in an 

environment characterized by competing partial forces that regularly influenced court 

proceedings.65 If a case was not simply adjudicated at the outset by a special military or security 

court, it was nonetheless subject to direction from the MoJ in Baghdad as to outcome.66 

If the case was not of concern to the Baath party, then the judge was subject to examine 

the tribal implications of the case. As a tribal society, local sheikhs possessed significant political 

and economic power and many cases developed under the lens of how the outcome might 

influence relations with a particular sheikh or whether the sheikh might have connections within 

the Baath party that might bring influence upon the judge.67 

In addition, bribery and financial influence under the former Iraqi legal system was much 

more widespread and accepted than would be tolerated in the West. While not officially 

condoned, bribery was widespread and persons of means could easily buy the outcome of a case 

that was important to them.68 

Against this background, Judge Advocates attempting to instill concepts of impartiality 

and adherence to the rule of law quickly learned that merely talking about such concepts led 

nowhere. Physical presence by Judge Advocates in the newly reopened and restored courthouses 

was necessary on almost a daily basis to force adoption of these concepts. 

65 Interview with CPT Ashe, supra note 20; interview with CPT Britt, supra note 13. 
 66 Interview with Chief Judge Shuadi, in Najaf (June 2,2003).
 67 Interview with Free Iraqi Forces Attorney Kamal Hassani, in Camp Commando, Kuwait, (Mar. 28, 
 

2003). 
 

68 Interview with Judge Mohound, in Al Kut, Iraq (June 2003). 
 

Chapter Vlll - Project Narratives 	 180 
g jy qp

occupational authority to rescind any law pertaining to support of the Baathist regime and several 

that failed to protect women from violence." In addition, the coalition implemented several new 

legal protections for accused persons such as the right to counsel during interrogation and the 

right to be free from a coerced confession. These concepts, second nature to most persons in the 

US, were completely foreign to Iraqi judges and required the attentive presence of CA Judge 

Advocates to train the judges to implement these laws. 

The first time that an accused tried to plead guilty before an investigating magistrate in 

A1 Kut the judge rejected the plea and told him he must return to his cell until he located 

a lawyer pursuant to the new law. The accused indicated that he did not want a lawyer 

and that he was guilty and wanted to be sentenced. The judge refused to accept the plea 

and admonished the accused that he would be in even more trouble if he refused to get a lawyer because the Coalition required every accused to have a lawyer whether he wanted 

one or not.72 

At this point in the proceedings the Judge Advocate intervened to explain that the intent of the 

right to counsel law was to protect the accused, not to use it against him. While the law drafted 

by CPA at that time stated the right to counsel, it did not explain the right to waive if an accused 

wished to do so. The Iraqi system is a civil code system based upon the literal application of the 

written legal code without regard to precedent as in the common law system. Thus, it took 

significant explanation to the very literal Iraqi judge for him to understand the intent behind the 

law and to agree to allow the accused go forward without an attorney present.73 The point of this 

example is that the application of the pure letter of the law without understanding the intent of 

the provision could have led to this accused and others similarly situated facing additional 

incarceration for refusing to get a lawyer to protect their rights. The presence of the Judge 

Advocate on the premises prevented this from occurring. 

The presence of the Judge Advocate in the courthouse also became a clear necessity in 

order to motivate the slow Iraqi legal system into efficient operation. Bureaucrats in Iraq were 

universally motivated by the fear of drawing undue or negative attention from Baghdad. Once 

the regime in Baghdad fell there was a clear lack of motivation on the part of many judges to 

69 Interview with CPT Dunn, supra note 42. 
 

70 Id. 
 

7' See Coalition Provisional Authority General Orders 1through 8 (2003-2004), available at 
 

http://www.iraqcoalition.org/regulations/index.htmegulations. 
 

72 Interview with CPT Dunn, supra note 42. 
 

73 Id. 
 

Chapter VllI -Project Narratives 
-- - - - -

of laws and government systems, but also his ability to think critically and provide a succinct 

evaluation of circumstances to the field commander. 

The CA branch in particular works through the concept known as the "as~essment."~~ 

Similarly, in carrying out the rule of law mission the Judge Advocate must provide situational 

assessment on the ground from a legal perspective and decide what goals he may or may not 

attain. An incomplete or poor assessment can seriously impact mission success. 

The initial legal assessment that the Judge Advocate should perform in beginning the rule 

of law mission includes at a minimum: 

the location of the legal institutions within his area of operations, including courts, 

jails, prisons, and other law enforcementassets 

knowledge of the laws and cultural traditions applicableto the A0 

knowledge of any informal legal traditions,,such as the power of the tribal sheikh in 

handling crimes that occur within a tribe 

the names, location, and contact information for local legal system personnel 

ethnic, tribal, racial, or religious bias that may impact the legal system 

knowledge of the type of legal system (common law versus civil, for example) and 

how those differences may impact the administrationof law 

From this basic foundation the JA can begin to evaluate the mission parameters and the assets at 

the command's disposal in order to develop the proposed course of action to establish the rule of 

law. 

c) 	 Avoid imposingforeign values that may prove destabilizing utrless militarily 

necessary. 

As the occupying power, the Coalition possessed significant power and influence within 

Iraq. Despite this great power and influence, however, it was important not to overreach and seek 

to impose Western values and beliefs upon a society not built upon the same traditions. Civil 

Affairs officers are trained to be sensitive to local values and beliefs, yet errors still happen under 

the well intentioned desire to "make things better." 

74 Id. ''I MEF Weekly Legal Report (July 31,2003). 76 See section V1.B. 

Chapter Vlll -Project Narratives 	 182 
gqy 

y pp

was potentially destabilizing. To his credit, the military governor realized at the last minute that 

he was about to open a Pandora's Box in his province. As the risk was much greater than the 

potential payoff, the battalion commander made the prudent decision to abandon the initiative. 

d) You areyour own securify. 

Judge Advocate and CA operators often hear at home station that they will operate in 

impermissible environments with security support of some type, such as an escort with crewi 

served weapons. OIF should finally put that fairy tale to rest. With the multiple demands on an 

occupying force, the deployed Judge Advocate carrying out his rule of law mission quickly finds 

out that he and his supporting legal team act as their own security. 

In theater, the ability to conduct the rule of law mission is often dependent upon the 

Judge Advocate's ability to coordinate travel with other staff sections to meet force protection 

requirements as to number of vehicles or crew served weapons. There is often mission overlap 

between CA operators and Judge Advocate personnel and they frequently find themselves 

operating in close proximity to each other and coordinating convoys. 

During OIF, JA and CA personnel were not only in convoys but frequently organizing 

and leading them. As soon as civilian contractors, medical personnel, and other non-combat arms 

personnel throughout southern Iraq recognized that Judge Advocates traveled frequently, they 

sought to link themselves to JA-led convoys to Baghdad or throughout the provinces to 

accomplish their own respective missions. 

In order to conduct these missions, JA personnel had to possess or quickly develop map 

reading, GPS operation, signals/communication, vehicle maintenance, weapons, and emergency 

medical skills. Soldier skills, perhaps previously viewed as secondary by some for Judge 

Advocates prior to OIF, are indeed as critical to the rule of law mission as any legal knowledge. 

A Judge Advocate who cannot move, shoot, and communicate with a respectable level of soldier 

skills is a Judge Advocate who cannot successfully carry out his rule of law mission, as he will 

be unable to carry out the extensive coordination and travel that such a mission requires. 

77 Saddam Hussein had appointed a handful of women judges during his rule, who served primarily in 
 

Baghdad and were responsible for adjudicating inheritance and other family matters that would not put 
 

them in direct control over a man and his rights. However, even Saddam's initiative to place women on 
 

the bench was not well received by the Iraqis and, hence, was not expanded. Interview with Judge Shuadi, 
 

supra note 66. 
 

78 Interview with SPC Rachael Roe, in Najaf, Iraq (Sept. 2003). 
 

ChapterVlll - Project Narratives 
becomes a jack of all trades. The challenge for the Judge Advocate in this situation is to remain a 

valuable resource to the commander, but not get so sidetracked by collateral general civic 

support missions that his ability to perform his main MOS is hindered. The Judge Advocate must 

continuously work to educate his commander as to his best use. The organizational and 

communication skills that a Judge Advocate brings to the table enable hirnlher to fulfill many 

different nontraditional lawyer roles are of great value to a commander. 

While responding to demands, it is important to remain a team player within the 

commander's staff, these other responsibilities can water down the Judge Advocate's ability to 

hnction as a legal advisor and operator. In several instances during the summer of 2003 Judge 

Advocates' assumption of non-legal functions, in addition to the traditional JA tasks many Judge 

Advocates provide for their units -such as initiating soldier claims for destroyed property, legal 

assistance, and general military justice advice - meant that no one assumed responsibility for 

restoring the Iraqi court system, and that task was consequently delayed. 

Judge Advocates who tried to do everything in an environment where there was an 

endless demand for human resources would find themselves working tirelessly, yet 

accomplishing little because they were pulled in too many directions. While the concept that 

"The Mission Comes First" is true, in order to remain effective, the challenge to the Judge 

Advocate is to keep a focus on his actual mission. 

fi 	 Judge Advocates will be called upon to conduct or coordinate itrvestigatiorrs of 

corruption and human rights violations in the prior govertrmetrt. 

By the end of May 2003, US military officials were flooded with Iraqi complaints and 

accusations against Iraqi officials, religious leaders, and laypersons on a wide range of criminal 

activity ranging from embezzlement to extortion to genocide. With the regime of Saddam 

Hussein destroyed, people became increasingly bold in coming forward with accusations against 

officials and their neighbors. Some were credible but many were inspired by petty jealousies, the 

desire for revenge from some prior slight, or the desire to get an official fired in the hope that the 

accuser might become his replacement. In the absence of a functioning Iraqi court system the 

Coalition was the only authority in the country to sort through these accusations. 

These accusations resulted from 35 years of pent-up frustration within the Iraqi populace 

and the Coalition did not have the necessary personnel to actively pursue them all. However, the 

Coalition also did not want to appear unconcerned or disengaged from the prior crimes inflicted 

79 Anne K. Mcmillan, Lanyers in Arms: War Memories Linger as Former Soldiers Resume Their Legal 

Lives, TEXASLAWYER(Sept.27,2004) (interviewingCPT Allen R. Vaught). 

Chapter Vlll -Project Narratives 	 184 
investigating body during the first few chaotic months of the occupation again gave an 

appearance of credibility to the Coalition. These bodies were ad hoe creations of the GSTs, 

staffed by locally selected Iraqi officials operating under the authority of the military governor. 

They had the power to receive complaints and recommend action, but could not take corrective 

action without Coalition approval.s0 

The CPA reestablished the lower level Iraqi magistrate courts over the summer of 2003 

and the long term need for such a separate investigative body quickly diminished. In the future, 

higher level courts and tribunals would investigate higher crimes and crimes against humanity. 

However, in the first weeks of the occupation such ad hoe committees freed up US military 

resources from a parade of local issues, gave the Iraqis a forum for expressing their complaints, 

and gave the local provinces a semblance of control over their own local affairs that had been 

absent under the Baathists. 

g) 	 Even aspart of an occupying force the Judge Advocate mirst negotiate local 

cooperation. 

One of the great successes of Judge Advocates in OW-1 was recognizing that they did not 

have the necessary local cultural, political, and legal knowledge of the Iraqi judicial system to 

simply create a legal system from scratch and impose it upon the ancient Iraqi society. Knowing 

one's limitations is an essential element of JA operations -this can avoid serious impediments to 

reestablishing order. Judge Advocates in OF-1 recognized that, for the new legal system to have 

legitimacy in the eyes of a populace recently abused by the Baathists, its roots would have to 

come from the Iraqis themselves. Due to lack of communications capability with Baghdad and 

the absence of CPA guidance during the April-August 2003 timeframe, military governors in the 

seven provinces of southern Iraq, utilizing their CA Judge Advocates, developed their own 

mechanisms to determines' who would remain on the bench. 

Each provincial military governor used a different model but each had a common theme. 

In each instance it was the Iraqis from the concerned province who proposed the persons to 

remain on the bench or assume judgeship for the first time. 

Each province had distinct political, tribal, and cultural issues that affected whether the 

provincial governors, provincial mayors, and chief judges had credibility in the eyes of the local 

populace. Local Iraqi officials in each province established a nominating and vetting committee 

with the consent of the Coalition military governor. Civil Affairs personnel formally and 

informally interviewed members of the provincial legal union, tribal leaders, sitting judges, and 

80 Legal Assessment of Southern Iraq, supra note 21. '' Interview with CPT Britt, supra note 13. 

Chapter Vlll - Project Narratives 
the widely diverging parties seeking input into judicial selections required deft negotiating skills 

and sensitivity to local concerns and prejudices. 

The Iraqi populace viewed the US military administration in the southern provinces as 

credible because it gave the Iraqis a voice in determining their judges. The Iraqis existed under a 

rigid socialist system for thirty-five years during which Baghdad dictated every significant 

action.85 The fact that the Coalition provided the provinces with a voice in their own judicial 

leadership helped establish that the Coalition intent was to liberate Iraq from oppression, not to 

merely replace one oppressor with another. Iraqi judges, provincial governors, legal union 

leaders, and local tribal leaders throughout the southern portion of Iraq were amazed and 

expressed gratitude to the Coalition for respecting the Iraqis enough to give them a voice in their 86 own governance. 

The early decision to permit the Iraqis a role in selecting their own future leaders helped 

guide future interactions with the provincial leaders. In contrast to criticism in the international 

press about US aggression and accusations about US intent to control Middle Eastern oil fields, 

the Iraqis living under the military governors in southern Iraq experienced a victorious US 

military that sought to provide them with authority, support, and respect. This led to a spirit of 

cooperation between provincial officials and the US forces. Had the US forces sought to 

unilaterally select Iraqi judges and ignore Iraqi wishes under a mantle of occupational authority, 

a much more adversarial tone might well have evolved in US administration efforts. 

11) The Judge Advocate will negotiate arid mediate internatioiial agreements. 

A Judge Advocate operating in a mature theater or in CONUS must be extremely careful 

not to create agreements with foreign governments without high level coordination. The Judge 

Advocate operating in the atmosphere of a post-hostility occupied theater may find himself 

entering into such agreements on a regular basis. It is important that the Judge Advocate 

coordinate such agreements with proper command levels. Unlike in a mature theater, however, 

82 Several members of the Free Iraqi Forces that accompanied Coalition troops into Iraq were former 
 

practicing attorneys who had local ties and knowledge as to who was pro-Baathist, cormpt, or had other 
 

undesirable character flaws inappropriate for a sitting judge. 
 83 Legal Assessment of Southern Iraq, supra note 2 1. 
 84 I MEF Weekly Legal Report of MAJ Craig Bennett, Al Hillah GST (June 4,2004).
 85 Interview with Judge Mohound, supra note 68. 
 86 Interviews with Governor of Babil Province (July 2003), Magistrate Judge Ali, in An Nasariyah (Apr. 
 

8,2003), Chief Judge Shuadi, supra note 66, and Interview with Najaf Legal Union Chairman (June 
 

2003). 
 

Chapter VllI - Project Namtives 
and the fledgling Iraqi government and led to reestablishing communications between the two 

nations. 

Judge Advocate personnel were part of the staff of the HOC in Kuwait City, whose 

purpose was to coordinate international relief support to Iraqi civilians. In this role Judge 

Advocates worked closely with government and nongovernment international organizations to 

negotiate and coordinate the shipment of relief supplies to Iraq. 

Other missions in which Judge Advocates served as active negotiating participants 

included moving relief supplies to Iraq from Jordan and quelling a border crossing point dispute 

between United Nations' relief convoys and the Kuwaiti government. Judge Advocate 

involvement in this cross border dispute likely quelled a formal protest at the United Nations in 

New York. 

i) 	 While displaying respect, do not be deferential to foreign judicial officials in an 

occupied territory. 

In both OIF and OEF, Judge Advocates found themselves working to reestablish or 

restore a judicial system whose credibility was damaged under the prior regime. In conducting 

such a rule of law mission, the Judge Advocate walks a narrow tightrope between showing 

appropriate respect to local judicial officials' desires and providing them direction consistent 

with Coalition commander's goals. 

A lesson quickly learned by Judge Advocates in Iraq was that one should not be overly 

deferential to Iraqi judges. It was very important for restoration of the Iraqi legal system during 

the first year that the US Judge Advocates establish they were in charge and that the Iraqis 

worked for them. Iraq under Saddam Hussein was a strict, hierarchal system under which judges 

were used to being told what to do and when to do it. Provincial judges had little latitude making 

decisions and, accordingly, it was very foreign to them to be asked to develop plans or to provide 

input on how to reconstruct the Iraqi legal system. In the initial weeks of the occupation of Iraq 

in April and May 2003 it became clear that providing the Iraqi judges with too much discretion 

and latitude in restoring courthouse operations led to them doing nothing at all.*' 

Over a period of several weeks we visited the same Iraqi courthouses in Al Kut, Ad 

Diwaniyah, and Najaf several times, where we requested information on the necessary 

supplies and support needed to run the courts. Each time we found the judges sitting 

together in a lounge drinking Pepsi and smoking cigarettes and doing nothing toward 

restoring courthouse operations. They were never able or willing to provide the requested 

87 Interviews with CPT Britt, supra note 13,CPT Ashe,supra note 20, and CPT Dunn, supra note 42. 

187 	 Chapter Vlll -Project Narratives 
appearance of JA officers in Iraqi courts to present cases against persons who had allegedly 

committed crimes against or in the presence of Coalition personnel. This occurred early in 2003 

due to the absence of qualified or committed Iraqi prosecutors. In order to help alleviate the 

overcrowding present in provincial jails as well as to preserve the integrity of the cases 

presented, some Judge Advocates played an active role in presenting evidence in Iraqi courts.89 

Judge Advocates operating in this fashion need to be cognizant of two important issues: 

First, that, by appearing before an Iraqi judge as a litigating attorney, there is the appearance that 

the Judge Advocate is placing himself subject to Iraqi legal procedures and the authority of the 

court itself. As an occupying authority, the Coalition was not subject to Iraqi law, yet one could 

view the appearance as a practicing attorney before the Iraqi court as contrary to that position. 

Second, that if the Iraqi judge unduly defers to the authority of the Judge Advocate during the 

legal proceeding as the representative of the occupying power, the impartiality of the judge is 

undermined and an appearance may arise in the serviced community that the Iraqi judge is 

merely a puppet for imposing the will of the Americans. One cannot be both the supervisory 

authority for a court in the role of the legal advisor for the occupying commander and a 

subordinate authority to that same court by appearing as an attorney in a contested proceeding. 

While this policy was apparently employed without long term adverse consequences, and 

assisted in the reduction of case backlogs and jail overcrowding, the above legal issues must be 

carefully considered and weighed against possible alternatives before a Judge Advocate places 

himself as a litigating attorney before the national courts of an occupied country. 

"Interview with COL O'Hare, supra note 14. 
 89 Interview with MAJ Bernard Bercik, JA, in Karbala, Iraq (Aug. 2003). 
 

Chapter VllI - Project Narratives 	 188 
objective was to help the courts become more efficient and effective, while at the same time 

building public confidence in the judiciary. 

Once sovereignty was returned to the Iraqis at the end of June 2004, local Iraqi courts 

were expected to play a larger role in the battle against the insurgency. It was evident that Iraq 

would be neither stable nor secure until its courts were consistently capable of impartially and 

effectively enforcing the law as part of a larger security strategy. Cultivating and nurturing a 

trustworthy and resolute court system was an implied if not explicit end-state in the mandated 

shift from full-spectrum combat operations to stability operations. Obviously, before a 

commander could rely upon the Iraqi courts to serve as an effective part of a counter-insurgency 

plan, he needed to know something about each court and its capacity to function effectively and 

to fairly consider each case. The commander needed to know what the Coalition could do to help 

fix an ineffective or corrupt court and he needed to actually begin making those changes before 

he could confidently transition authority to Iraqi security forces and shift responsibility for 

governance back to local control. The court assessment mission was intended to help 

commanders to optimize the use of the Iraqi legal system. 

1. CourtAssessment Project 

We divided the court assessment mission into three parts: (1) conduct an initial 

assessment of each courthouse; (2) initiate projects to address deficiencies identified during the 

COL Bruce Pagel, JA, USAR, sewed as the First Infantry Division's rule of law officer during OF-2 

from May 2004 to February 2005. ' During the same period, we also conducted a second mission, closely related to the first. This mission 

involved developinga process for smoothly transferringdetainees from US control to local Iraqi custody 

for purposes of further investigationand possible prosecution.This included helping establish improved 

procedures for developing and transferringevidence to Iraqi courts in a manner and form that would 

improve the chances for successful prosecution.. Although not strictly a rule of law mission, the detainee 

transfer mission had major implicationsfor the rule of law mission, since it not only helped re-establish 

the Iraqi courts system (specifically the Central Criminal Court of Iraq (CCCT),but also required I ID to 

consider the effect of complying with the rule of law in the conduct of its own mission. For instance, 

using the Iraqi court system in order to obtain warrants to searchpotential insurgents' homes raised a 

multitude of issues, including how to deal with an Iraqi judge's refusal to issue a warrant and potential 

OPSEC concerns(among them the Iraqi practice of providing advance warning of a search). 

Unfortunately,fire and maneuver continued to dominateoperational thinking, much to the detrimentof 

the rule of law mission. 

We completed the assessment for approximately213 of the courthouses in our AOR before the end of 

our tour. We were not able to assess the courts in Tamin (Kirkuk)Province. 
(2) Visiting the Courthouses 

The second and most important step involved conducting site visits to each courthouse. 

Each visit consisted of an inspection or survey of the courthouse itself, interviews with each 

available judge and, when circumstances permitted, interviews with senior police leaders and 

local lawyers. We conducted the interviews using a standardized checklist which we continued to 

modify as we learned more about the Iraqi legal system, and a separate list of biographical 

questions for each individual judge. Among other things, we asked the local police leadership to 

assess the status of each courthouse and asked courthouse personnel to assess police 

performance. Where possible, we also visited the nearest detention facility, assessing conditions 

inside the facility and evaluating its relationship with the local court. We captured the collected 

data in both spread sheet and narrative form and prepared a power-point version to more easily 

include relevant photographs. Attached are the documents we used to create the data base. See 

Attachments 1-6. 

The courthouse visits were both challenging and exceptionally productive. There was no 

better way to obtain the information we needed than to meet and spend time with local judges. 

We became familiar with conditions at each courthouse and observed how each court dealt with 

its cases. A Judge Advocate from each Brigade Operational Law Team (BOLT) took 

responsibility for planning the courthouse visits in each brigade AOR. The BOLT Judge 

Advocate arranged for whoever in the brigade was most familiar with the local court to 

accompany the assessment team in order to make introductions and provide both strategic and 

tactical context for that particular courthouse. Having someone familiar to the judges introduce 

us proved very useful and helped us gain influence and credibility with the judges at each 

courthouse. Since the 1 ID OSJA had no organic translators, the BOLT Judge Advocate also 

arranged for translators to accompany us to each courthouse. For the most part, the brigade and 

battalion level staffs supported the mission and responded to our life support requests. This was 

due, in part, to a division FRAGO that made the court assessment mission a priority and directed 

all subordinate units to assist our courthouse visits. The FRAGO proved to be most helpful. 

Without it, support in the field would have been far less generous. 

We quickly became aware of several practical constraints in conducting courthouse visits. 

First, we did not always have enough time to complete all the tasks on the checklist. Ln some 

cases, the threat level was such that remaining at one location for more than a couple of hours 

was not safe. On other occasions, our escort team was diverted to higher priority missions, 

causing the courthouse visit to be cancelled, delayed or cut short. Depending on the number of 

individuals to be interviewed, the courthouse visit, including the walk-around survey, usually 

took between 3 and 4 hours per courthouse once the team amved at the site. That did not include 

Chapter Vlll - Project Narratives 190 
before the interview. That often helped the translator relax and sometimes improved the quality 

of the translation. 

The third major constraint concerned the interview methodology. The integrity of the 

data was inevitably dependent upon the candor and truthfulness of those interviewed. Judges in 

several courthouses were clearly pandering, telling us what they believed we wanted to hear. 

While some judges were evidently motivated by the possibility of obtaining additional resources, 

adding to their prestige and improving their efficiency, others quickly fell back on pre-war 

habits, simply defemng to authority no matter who it was. Although we attempted to validate the 

data by cross-checking the information between sources, we could not entirely dismiss the 

possibility of translation errors and the potential for judges and others to exaggerate or lie during 

the interview. As a result, we remained open to re-evaluating our conclusions in face of new or 

conflicting information. 

There were other problems worth noting. For a variety of reasons, the initial interviews 

did not always produce all the necessary information. For example, in several courthouses not all 

the judges were available for interviews during the initial site visit. As a result, we asked the unit 

that was most familiar with the particular courthouse to conduct a follow-up visit and obtain the 

missing information they were asked to send the missing information to the BOLT Judge 

Advocate who, in turn, sent it to the division. This process proved to be both ineffective and 

unreliable. The response to these requests was often very poor and when the information was 

provided, it was often garbled or incomplete. We needed a more reliable process for submitting 

and tracking request for information (RFIs). 

Another problem involved the Iraqi police chief, or other Iraqi police officers, sitting in 

during the judicial interviews. This discouraged the judges from providing a candid evaluation of 

the Iraqi police. In Several courts, the judges allowed too many people, Iraqi police and others, to 

participate in the interview process, slowing down the interview and undermining the 

professional environment we had hoped to create. 

If a dedicated Iraqi lawyer/translator had been permanently assigned to each assessment 

team and available to assist with the initial assessment and subsequent monitoring it would have 

been an enormous advantage and would have overcome a myriad of problems, including the 

problems resulting from not having a high quality translator available for each courthouse visit. 

If available, an Iraqi lawyer could serve as a continuing source of institutional knowledge as 

units change-over, as well as provide local legal expertise on Iraqi law and procedure. It was all 

'The Facility Protection Service is the national-level organization tasked with guarding the courthouses 

(and other government buildings). 

Chapter Vlll - Project Narratives 
(in several districts); (2) the substantial renovation of others (many courthouses still suffered 

from inadequate power, water and sanitary service); (3) improved communications (many 

courthouses had no means of communicating other than by messengers); (4) official vehicles; (5) 

office automation (most courthouses lacked computers, copiers, etc.); and (6) improved 

courthouse and judicial security. This, of course, set the stage for the second part of the 

assessment - helping the Iraqis initiate rule of law projects and identify resources that would 

meet the identified needs of each courthouse. 

Property ownership issues often complicated new construction and renovation projects. 

Neither the Coalition nor the Iraqis were interested in investing resources in property not owned 

by the Council of Judges (CoJ) or the Ministry of Justice (MoJ), which was the case with more 

than several courthouses in our AOR. Not unexpectedly, it was often the courthouses not owned 

by the CoJ or MoJ that needed the most work. This meant that, since the US would not buy land 

for the Iraqi government, and the CoJ was tembly slow to act, the neediest courthouses were the 

last to receive help. 

Moreover, it quickly became obvious that the Iraqi courts stood little chance of being 

effective if neither the judges nor the public felt secure. Acting on that premise, the 1 ID made 

court and judicial security the highest priority in our project planning. Communication and 

infrastructure were the next highest priorities. Obviously, the communication and infrastructure 

projects overlapped with our efforts to improve security. The ability to reliably communicate 

with emergency and military authorities, along with improved banier security and making the 

points of entry more secure, all contributed to making the courts safer. 

In addition, the assessment team consistently found that the FPS was slow to deploy to 

our AOR. When FPS personnel were present they were often unarmed, unpaid and untrained, 

and rarely had uniforms or identification. In addition, only a smattering of judges were provided 

with Personnel Security Details (PSDs) who, when available, were often unarmed and untrained, 

and deployed in insufficient numbers. As a result, with good reason, we agreed when asked to 

provide many judges with side-arms for personal protection. This became a source of tension, 

however, as we learned that the CoJ did not approve of judges carrying weapons. Nonetheless, 

without adequate PSD and FPS protection, most judges understandably elected to ignore 

As an aside, having an Iraqi lawyer available would also assist the division in areas other than the court 

assessment mission. Many units -units serving in Iraq at different places and at different times -- have 

reported that having a capable Iraqi lawyer/translator available on a regular basis was or would have been 

very helpful. 

Chapter Vlll - Project NarIatives 
in the aftermath of the war. The 4 ID had to concentrate its efforts on getting the courthouses 

open and minimally functional. Thanks to the 4 ID, the 1 ID found most, if not all, the courts to 

be operating, although at varying levels of effectiveness. As a result, our goal was to help the 

Iraqis take the next steps toward recovery and modernization, and in fulfillment of that goal, we 

tried to move from physical and institutional metrics to effects-based metrics requiring more 

qualitative evaluation, although we certainly did not entirely abandon institutional metrics. The 1 

ID MOE reflected our effort to further improve the functionality of each courthouse. 

The 1 ID attempted to develop both objective and subjective criteria for each MOE 

category. Using these criteria, we made judgments for each of the four MOE categories for each 

courthouse that we visited. See Attachment 7. Although our analytical scheme was reasonably 

objective, we could have improved this approach by developing an even more rigorous and 

uniform process for making these qualitative MOE judgments. 

b) Initiating Projects and Meeting the Identified Needs at Each Courtholrse 

We broke the projects down into brigade- and division-level projects. For example, we 

recommended that the brigade focus on: (1) providing at least one vehicle to each courthouse to 

accommodate official travel; (2) providing weapons to judges and prosecutors (and helping the 

Iraqis obtain the necessary weapons permit once it was established who would have authority to 

re-issue permits at the national level); (3) providing an appropriate number of cellular telephones 

to each courthouse; (4) providing miscellaneous office supplies and equipment (as recommended 

We also attempted to provide weapons training along with the weapons. Many judges, however, 

believed the training to be unnecessary in view of their military and other experiences with firearms. In a 

country awash in weapons, this was not surprising. Nonetheless, judges in one brigade AOR did receive 

weapons training. We should have made training mandatory for all judges receiving US-sponsored 

weapons. 

We made known to the Embassy at every opportunity that neither the FPS nor the PSD teams were completely or effectively deploying to our AOR. This continued to be a problem throughout our tour. 'Among the criteria used to assess the "Rule of Law" category was the extent to which each court was subject to "External Influence". This was broken down into: AIF intimidation; excessive tribal 

interference; undue religious influence; criminal corruption; political intervention and any other threats 

against judges or staff. We also took into consideration the following: whether defendants were seeing a judge within 24 hours; whether defendants were being advised of their right to remain silent and right to 

counsel; whether the police were still arresting victims or witnesses without warrants, or arresting family 

members in order to compel fugitives to surrender; whether females and juveniles were being held in 

segregated facilities; whether the police were providing food to inmates; and whether cases were being 

disposed of within 6 months. 

193 Chapter Vlll - ProjectNarratives 
See Attachment 8. 

With respect to the later project, we discovered that most, if not all, court-related 

documents were handwritten. Moreover, the documents were almost always communicated or 

delivered by messenger, including those documents going to the higher courts and administrative 

offices in Baghdad and the provincial capitals (mostly using personal vehicles or taxi cabs, often 

incurring un-reimbursed expenses). As a result, we believed that having upgraded office 

automation capacity available, particularly the network and internet features, would provide the 

courts with the ability to scan and electronically communicate messages and documents, 

improving courthouse efficiency in significant measure. We expected the same improved 

efficiency with respect to docket management, statistical compilation, record keeping and 

budgeting responsibilities. Using a USAID contractor, we planned to provide much needed 

computers, scanners, printers, generators and internet access, along with continuing on-site 

training and long-term technical support to each set of judges and courthouse staff. The USAID 

grants used to fund the IT projects together totaled more then $1,000,000 in hardware, software, 

training and other related services. 

Initiating the project was often the most difficult step in the court assessment process 

was, in some ways. It was certainly the most hstrating. prior to transferring sovereignty to the 

Iraqis, when the Commander's Emergency Response Program (CERP) was both robust and in 

full stride, construction projects were initiated at the division level, which was relatively easy. 

However, after transfer of sovereignty, we ceded control of much of the previously available 

money (Development Fund Iraq) back to the Iraqis. While there were still US funds available for 

reconstruction projects in Iraq, our inability to easily access those funds, mainly the Iraq 

Reconstruction Relief Funds (IRRF) Project Contracting Office (PCO) funds, proved to be a 

significant obstacle to efficiently initiating and managing projects in the justice sector. 

In particular, the division was advised that PC0 Justice Sector funds, as allocated 

according to the PC0 project list, would be available to be used to renovate courthouses in the 

1ID AOR. While this was encouraging, the courthouses named on the original PC0 list were not 

the courthouses most in need of repair or renovation, and in some cases the military had already 

completed some of the work. The PC0 list also included references to cities or villages that did 

not appear to exist and allocated excessive amounts of money to rebuild courthouses in villages 

where the allocated funds would have been sufficient to rebuild the entire village. The OSJA had 

some influence over the projects, but the policies, approval authority and other PCO- imposed 

constraints for spending this money remained unclear. Gaining access to this funding was neither 

Chapter VllI - Project Narratives 
determined that to be minimally effective, every courthouse should have certain features 

a 

functional courtroom, a detention cell/room, a privacy room at the gate for female searches, an 

FPS officeharracks, and a single well-protected point of entry. See Attachment9. Nevertheless, 

it was difficult to persuade the PCO, which was responsible for the full range of government 

reconstructive efforts, to include these features and approve courthouse-specific statements of 

work. Because of their generalist approach, some at the PC0 were intent on treating courthouses 

as just another building. This discussion also caused delay. 

We became aware of multiple sources for funding rule of law projects, but identifying1 

and accessing available funding sources were not the only problems in dealing with these various 

projects. Traversing the complex contracting and fiscal landscape, to include dealing with sole 

source restrictions and other US fiscal law constraints, also proved challenging and caused 

additional delay. In retrospect, we should have been better prepared to deal with these issues and 

made better use of the contracting expertise that was already available within the OSJA. 

From the 1 ID point of view, some of these projects were "fire and forget," requiring little 

oversight or advance work on our part. The funding sources delivered the "product" directly to 

the Iraqis, using mostly Iraqi vendors and contractors. However, we planned to monitor all 

projects, including the "fire and forget" projects, to ensure that the courthouses received the 

hoped-for benefits. Other projects required more direct, day to day management. In those cases, 

identifying and contracting a reliable contractor -Iraqi or otherwise -was the first step and often 

the most difficult. It was made more so by the ever changing security situation and the targeting 

of Iraqis who worked with the Coalition. The CA community, the Corps of Engineers and the 

division contracting office were the best sources of assistance in dealing with contractors. 

Security concems were another major obstacle to completing courthouse projects. Even 

when funding was available and the project was approved, there were the inevitable delays due 

to security concems and the additional planning that was required. 

Other project related issues included: (1) monitoring quality control; (2) mitigating 

corruption and theft; and (3) arranging for the donated property to be protected by some type of 

maintenance plan and supporting budget. Most of the Coalition-led renovation and construction 

projects were beset with theft and poor workmanship. Our ability to recognize and correct design 

and construction deficiencies was limited. Although efforts were being made to improve our 

capabilities in that regard, to include adding engineers to the oversight effort, it remained a 

Even the amount of money available was unclear. In June, 2004, the PC0 list reflected in excess of $21 

million dollars to be dedicated to courts in North-Central Iraq (1 IDSAOR). At different times, that 

amount went fiom $21 million dollars to $1.4 million, to $750,000, to $550,000, then back up to $1 .l 

million dollars. The dissipation was attributed to PC0 "overhead". 

Chapter Vlll - Project Narratives 
usefulness of US-donated property and all too often required premature replacement, or 

expensive repair. We solved this, when possible, by including an O&M feature in each project. 

The idea was for the US to fund O&M for at least a year, allowing the Iraqis an extended 

opportunity to use the equipment or technology with minimal interruption. They would hopefilly 

become dependant and skilled enough with the technology that they would become both 

confident and compelled to continue to use and maintain it. With funding set aside, and the 

technicians already identified, there would be no excuse for not properly maintaining the 

equipment. It was in this context - poor stewardship - that we took past experience was taken 

into account when determining future division priorities. If equipment provided previously had 

not been well used, we were less likely to make a project in that courthouse a priority. 

Another important issue, and sometime war-stopping problem, was the need to 

coordinate with the Iraqi judicial leadership in regards to each court-related project. This was 

critical in order to ensure that: (1) they agreed that the particular project was needed and among 

their priorities; (2) that they were prepared to support the construction, training and maintenance 

elements of each project; and (3) they had not already planned and budgeted an identical project 

on their own, thus avoiding conflict or redundancy. Coordination with Iraqi judges was always 

made more complicated and slowed by their habitual need to submit every decision -no matter 

how inconsequential - to their leadership in Baghdad, where action was often ponderous and 

sadly un-informed. Having a responsive liaison in Baghdad would have helped us improve 

coordination between local judges and authorities in Baghdad. 

Clearly, the need to initiate and manage court-related projects will continue until the 

already identified needs are met, as well as any additional needs that might be identified in the 

future. At the same time, everyone agreed that the Iraqis needed to be made full partners in this 

modernization effort and to take more responsibility for improving their own courts. Most of the 

Iraqis we worked with did not disagree. Many had an appetite for restoring Iraqi courts to the 

proud status they once enjoyed as the most modern and admired legal system in the region. 

However, in this confused post-conflict environment, the local Iraqis simply lacked the authority 

to initiate action and had no access to the necessary resources. 

c) The Courihouse Monitoring Mission 

There was a continuing need to stay engaged with the local courts beyond the initial 

assessment. First, we wanted to know whether we implemented our projects and 

recommendations effectively. Second, we wanted to know whether any courthouses were 

backsliding and giving-in to extra-legal external influences or slipping back into bad habits. 

Lastly, we wanted to be in position to assess what more might be done to assist the Iraqis in 

taking the next steps toward further modernization. 

Chapter Vlll - Project Narratives 196 
At the end of our tour, we drafted a FRAGO that tasked the BCTs with a "monitoring" 

mission as described above. It required regular courthouse visits by the unit most engaged with 

that particular court. We provided the BCTs with a standardized checklist of tasks, including 

questions for the chief judge and other courthouse personnel. After collecting the information, 

the FRAGO required the unit to pass it to the brigade Judge Advocate, who would capture the 

data for the brigade data base and then pass the same to division for updating the division data 

base. We used this data base, in part, to update the court assessment graphics. We also 

recommended passing the data to Corps or higher for use at the most senior decision-making 

level. Since the collectors would most likely not be lawyers, the checklist needed to be simple, 

clear and direct. See Attacbrnent 10. 

We believed that division level personnel should also participate in the ongoing 

monitoring of each courthouse. Regular visits to each courthouse would help maintain and 

establish essential relationships within the Iraqi legal community - relationships that would 

undoubtedly prove valuable across the full spectrum of rule of law operations. 

In addition, patterning their assessment process after ours, the Military Police (MPs), 

along with the International Police Advisors (IPA)~,began collecting detailed information 

concerning the Iraqi police stations. As part of their date collection efforts, we asked the IPA to 

collect data concerning the number of defendants being taken to court within 24 hours, 

complaints of judicial corruption, and incidents involving improper arrests. They forwarded this 

information to us and we folded it into our assessment. 

2. Additional Courtl~ouse Assessment Observations: 

Not all of these observations be relevant to each deployment. Conditions will vary based 

upon your location and when you deploy in relation to the beginning of the operation. During the 

later phases of an operation, as the work done by your predecessors matures, the legal issues will 

The IPA's mission is to mentor, monitor and, to some extent, train the Iraqi police. The PA is made up 

of experienced US police officers, federal agents and deputy sheriffs. They had deployed to most of the 

Forward Operating Bases (FOBS) in 1 IDS AOR and have embedded themselves with the Iraqi police and 

the US units that support the police. The IPA mission includes regularly reporting on the status of the 

Iraqi police units that they monitor. The IPA has agreed to include in their monitoring checklists 

questions concerning judicial performance and judicial conuption. These would be judgments from the 

Iraqi police perspective. The court assessment and PA missions clearly overlap, sharing many common 

concerns or issues in regards to the Iraqi criminal justice system. Although we made a good start in 

coordinating with the PA, much more could have been accomplished with a more dedicated effort on our 

part. See Attachment 11. 

Chapter Vlll - Project Narratives 
program. The more senior the officer, the easier it is to establish credibility with Iraqi judges and 

other senior Iraqi leaders. It also helps gain access to important US and Coalition leaders. Being 

more senior also provides better access to transportation and force protection resources, ensuring 

much needed mobility, and gives greater command emphasis to the mission. Most importantly, 

brigade commanders will likely spend more time with and take more seriously a more senior 

officer as compared to a young JA CPT, however capable he or she may be. 

(b) Division-Brigade Relationship. The BOLT Judge Advocates need to be assured that 

the Judge Advocate assigned to the division-level court assessment mission is not a threat to the 

brigade Judge Advocate's relationship with the brigade commander and that a division-led 

mission is not the result of a failure on the brigade's part. 

(c) Rule of Law Working Group. A more formal coordinating arrangement with other 

military staff elements and the IPA would have aided our effort. We recommended that the 

division establish a working group consisting of representatives from the Provost Marshall, Staff 

Judge Advocate, G-3, Engineers, G-5, PA and G-2. The concept, while considered worthwhile, 

was never acted upon. Instead, the division relied upon a set of ad hoe, informal relationships, 

making it more difficult to formulate a cohesive strategy and limited our ability to coordinate and 

share information. 

(d) Utilizing Local Courts. Positioning commanders to use local courts more effectively 

was an explicit task in MNF-1's post-sovereignty strategy. It had been suggested that the division 

identify a "go to" judge - a trusted, capable, fully vetted investigative judge -that would be 

available on little or no notice to consider arrest and search warrants connected to US-Iraqi 

operations. We discussed whether it would be possible to assign a particular Iraqi investigative 

judge to work out of and with a Joint Coordination Center. We recognized that this arrangement 

would pose jurisdictional, security and other problems, but the first step was to obtain approval 

for the idea from senior judicial personnel in Baghdad. We asked the Embassy to help resolve 

this issue, but never received a reply. This is another example how useful it would have been to 

have available a reliable, well-informed liaison in Baghdad. The division was not able to 

successfully act upon this proposal on its own. 

(e) Courthouse Statistics. The division asked each court to produce certain statistics (e.g. 

number of new cases, cases closed and felony cases sent to the felony court between 1 January 

and 1 July). These statistics were to be delivered to the brigade and then to the division for 

review. Unfortunately, the data was slow in arriving, often not complete, and did not fully 

comply with what we had requested. In addition, we failed to fully optimize the statistics that did 

anive or aggressively pursue the missing data. This was a missed opportunity. There is no doubt 

we should have taken more care in compiling and reviewing court-related statistics. Among other 

Chapter Vlll - Project Narratives 
establish an effective Iraqi security force and shift more responsibility to the Iraqi authorities. 

However, not fully recognized in this new strategy is the integral role the Iraqi courts must 

inevitably play in dealing with the security problem. Arrests without convictions are of little 

consequence and do nothing to advance the broader security strategy. As a result, the best police 

force in the world would be next to useless if not supported by effective courts and prisons. 

Setting the conditions for a fully functioning, orderly and impartial legal system, capable of 

enforcing the rule of law, should have been among the division commander's key tasks and endstates. The same is true with respect to subordinate commanders. We failed to sufficiently 

emphasize the mutually dependent relationship between police and the criminal courts and to 

press that point more coherently in redefining the 1 ID mission following the transfer of 

sovereignty. In what everyone understands to be a criminal justice system, we did not pay 

enough attention to perhaps the most vital component: the courts. 

(h) Judicial Independence. In several courthouses we found that the investigative judge 

who conducted the investigation and certified the case for trial also served as the "small crimes" 

trial judge, trying the same cases he investigated. CPA advisors in southern Iraq complained of 

the same problem. While most Iraqi judges agreed that this arrangement created an obvious 

conflict, there is nothing in Iraqi law explicitly forbidding the practice, and they were slow to do 

anything to ameliorate the problem. Another structural issue concerned the court's continued 

oversight of the "Executions Office." Among other things, the Executions Office assisted parties 

with enforcing civil judgments. In creating an independent judiciary, and separating the courts 

from the Ministry of Justice, many believed the "Execution's Office" should have remained an 

executive function and under the control of the Ministry of Justice. The concern was that courts 

were putting their independence at risk by not relinquishing control of this office. 

(i) Budget. Local judges were required to rely upon the provincial court to make all 

official purchases, including office supplies. The judges complained bitterly that this procedure 

was both inefficient and unreliable, although the provincial chief judges saw this practice as an 

anti-comption measure. We recommended that each courthouse be given its own budget and 

that the chief judge in each courthouse be given a reasonable amount of spending authority. We 

asked the US Embassy to take our recommendation to the CoJ, but no action was taken. 

(j) Judicial Identification Cards. More than a year after the collapse of the former regime, 

none of the judges in this region had an Iraqi-produced identification card that identified them as 

an Iraqi judge. Most judges had identification cards provided either by the US or the old regime. 

US produced identification cards were usually issued at the brigade level and their validity was 

often questioned outside the brigade AOR and by successor units. The CoJ had been inexplicably 

slow off the mark in producing official identification cards for judges. This was particularly 

ChapterVlll - Project Narratives 
(k) Judicial Salaries. Although Iraqi judges were paid generously compared to most 

Iraqis, the judges still suffered in terms of relative buying power compared to their income 

before the war, when the Ba'ath party provided houses, cars and generously supplemented their 

salaries. Although the CPA increased judicial salaries just prior to transfer of sovereignty, the 

pay raise was not that helpful to the more senior judges, whose salaries did not increase as much 

as the more junior judges. The judges in our AOR were preoccupied with this issue, bringing it 

up at every meeting. 

(1) Bail. Defendants in Iraq were often released pending trial based upon a responsible 

person agreeing to sign a bond. These documents were often executed at the police station. In 

some areas, it was not uncommon for the police to use the bond process as yet another 

opportunity to extort money from the defendant or his family. Because this problem appeared to 

be mitigated to some extent when bond was arranged at the courthouse, we recommended 

moving the bond execution process from the police stations to the courthouses. The judges 

tended to agree, but only acted on our suggestion in a couple of courthouses. 

(m) Iraqi Police Sewing as Bailrffs Inside and Around the Courlhouses. We were 

concerned that once the FPS was fully deployed, the local police chiefs would pull the remaining 

Iraqi police officers out of the courthouses, leaving internal courthouse security to the FPS. The 

problem was that FPS guards had neither the authority nor the training to make arrests (in 

relation to crimes occurring in and around the courthouse). Equally important, unlike the Iraqi 

police, the FPS guards would not be able to coordinate between the judges and the police in 

regards to transporting prisoners, contacting witnesses, and other important scheduling and 

investigative matters. This coordination function was particularly vital in those courthouses 

without any other means of communication. It is important that some of the court security 

personnel have the status of police officers. 

(n) Bar Association. A purposeful bar association is one of the foundations of a fully 

serviceable legal system. Bar associations play different roles in different legal cultures, so 

understanding the character and reputation of the local bar will help determine whether it is 

likely to be a good resource, cause mischief or be of little consequence. Make an effort to meet 

its leaders and assess its capabilities. That knowledge will help answer a variety of questions 

concerning the host nation's legal system. It may also help identify some of the obstacles to 

broader reform efforts. 

lo In fact, most agree that it can be very dangerous for Iraqis to cany Coalition issued identification cards. 

If an Iraqi is stopped by the AIF and found with a CF identification card it can be a virtual death sentence. 

Chapter VIII - Project Narratives 200 
administrative training, along with an introduction to any new technology or equipment that was 

being made available. However, the Iraqi judges in our AOR expressed only limited interest in 

Coalition sponsored training. They requested training in computer skills, investigative techniques 

(including forensic evidence) and international law (particularly if the training was outside Iraq), 

but nothing more. Most judges would have also benefited from training in regard to CPA orders, 

the applicable UN resolutions and the Transitional Administrative Law, and eventually their new 

constitution. We realized, however, that Iraqi judges traditionally believed that once they have 

graduated from the Judicial Training Institute they know all they need to know to be effective 

judges and often resisted additional training as insulting to their status. In addition, we 

appreciated that our efforts would need to be coordinated with the judicial training programs 

being implemented at the national level, particularly those being conducted by the CPAI US 

Embassy. We wanted to make sure our cumculum did not duplicate or contradict their efforts. 

However, other then in Dahok, the CPA's so-called "quick start" program was not available 

outside Baghdad, at least not in the MND-NC AOR. If any of our judges were included in the 

Baghdad sessions, we were not informed. Various international organizations also offered 

training to selected judges in places like Prague, London and Washington, DC, but these 

opportunities were not readily available to most judges and were not focused on trial level issues. 

Judicial training programs were not well coordinated with rule of law personnel in the field. 

Local judges were invited without notice to or consultation with us and the selections were not 

always consistent with our view as to who among the local judges would most benefit from the 

training or who should be rewarded for good work. Also, to be coherent, judicial training needed 

to be oriented around the civil law traditions of this country. Common law lawyers sometimes 

lack the credibility to be effective trainers in places like lraq." Notwithstanding the constraints 

described above, this is an area where the division could have done better. Our judicial training 

was mostly ad hoe and limited in scope. The exception was computer training, which was 

provided to everyone who needed it. 

(q) Juvenile Court. If there had been more time, and the higher priority missions had not 

been such a struggle, we would have focused more on the juvenile courts in this region. There is 

great potential for abuse in how juveniles charged with crimes are handled in Iraqi courts. The 

facilities in which juveniles are held were antiquated and unsafe. Children were often charged 

and treated as adults without the benefit of juvenile court waiver procedures. Under Iraqi law, 

before a person is entitled to status as a juvenile, the individual must be examined by a medical 

doctor who must certify the individual's age and eligibility for juvenile court. The accused must 

pay a fee for the examination. If the fee is not paid, the individual remains in adult court. We 

"The 1 ID had the benefit of having a Louisiana I civil code -trained attorney on the BRO legal team. 

He had a variety of responsibilities, to include some judicial training which was very well received. 

201 Chapter VIll - Project Narratives 
inmates in order to obtain food. This, by the way, does not trouble most Iraqis. However, the 

Iraqi criminal justice system would benefit from having available in each province a modem, 

centralized detention facility, carefully monitored by judges and Coalition personnel. This would 

greatly reduce the reliance on local, substandard jails and measurably improve the conditions for 

all prisoners and help the Iraqis meet international human rights standards. A regional prison was 

to be built at Khan Bani Sa'ad, but what type of prisoners would be housed there was unclear. It 

was to be controlled by the Iraqi Corrections Service, who were not yet present in our AOR. 

(s) Coordination. It quickly became apparent that we lacked a reliable or regular means 

for communicating with authorities in Baghdad, either Iraqi or US. We had an interest in 

knowing what plans and policy intentions were being formulated at the Council of Judges level 

(CoJ)(formerly the Ministry of Justice) so that we could better synchronize ow plans with theirs. 

In addition, there were many instances where local judges either did not know what the CoJ was 

planning, or needed CoJ approval prior to moving forward with projects the 1 ID had proposed. 

Neither the planning information nor project approval was readily available and made working 

with the local courts much more complicated and difficult. Conversely, it would have been 

helpful at times to have been able to communicate our plans directly to the CoJ and report to 

them what we had observed in the local courts. The idea was to find a way to de-conflict our 

local projects with national level planning and avoid potential redundancy and inevitable delay. 

There were also times when we had questions or concerns about emerging policy, new laws or 

other issues that were best put directly to the senior leadership. We were largely unsuccessful in 

communicating with Baghdad and rarely received answers. A more dependable and formalized 

communication channel would have been enormously valuable. MNF-I or MNF-C are 

potentially in a position to build a regular liaison relationship directly with the senior Iraqi 

judicial leadership, allowing the divisions to RFI through MNF-C to the CoJ and other relevant 

ministries and pass information in both directions through the military chain of command. 

(t) Police Training. Training indigenous security forces to serve the public under the new 

government is a key task in any post-conflict situation. The goal is to mesh the courts, police and 

prisons into a fully integrated criminal justice system. This requires careful coordination among a 

range of subject matter experts and is at the very heart of rule of law operations. A wellconceived police training program is an essential element in that effort. According to the PA, 

the Iraqi police in our AOR continued to be mostly dysfunctional and offen unreliable. In some 

courts there are no criminal dockets because the police were simply not making arrests. During 

our tour, the principal performance measures were the number of Iraqi police officers who had 

been through basic training; and how many had weapons, uniforms, vehicles and radios, rather 

than the number or quality of arrests, however, those metrics did not fully measure Iraqi police 

agencies' capabilities. Judge Advocates were asked to assist the IPA and the MPs in training 

Chapter VllI - Project Narratives 202 
potential. The goal is to cultivate among the three components a shared understanding of 

applicable law and procedure, a common operating plan for meeting all essential procedural 

requirements and a mutual awareness of how to make arrests and conduct investigations that 

result in convictions. 

(u) Elections. Elections will often be part of a post-conflict operation. The courts will 

undoubtedly play some type of role in administering elections and sorting out applicable 

"election law". Be prepared to represent the local court's interests in staff discussions concerning 

US support to the elections process. Be familiar with election issues and election law. 

(v) Judicial Vetting. In a post conflict environment there will inevitably be concern that 

the judges serving the previous regime are corrupt, incompetent or not likely to support the new 

government. The same may be true of prosecutors and other courthouse personnel. As a 

consequence there will be calls to establish some type of vetting and removal process. Who can 

best serve in this capacity may not be entirely clear. Some would argue that host nation 

authorities are best suited, while others would insist that the Coalition must participate, if not 

lead this effort. The criteria to be used to remove judges will also be controversial. The standards 

that should be used in removing a judge, to whom should the appeal be taken, the sources of 

information should be relied upon and how the judges who are removed will be replaced are all 

critical issues that will impact local judges. Although dealing with judges appointed under the 

old regime is a legitimate issue, the vetting and removal process is fraught with risk. Even the 

judges who survive the vetting can be demoralized and until the vetting is complete the 

continuing uncertainty as to the status of each judge will hamper efforts to make the courts fully 

functional. Those concerned with rule of law at the division and brigade level should be prepared 

to deal with complaints and questions from judges and staK 

(w) Weapons Offenses. In a post-conflict environment, a great deal of attention is given to 

the illegal use and possession of weapons. New laws are often created to deal with increasing 

violence and diminishing security. Be prepared to advise on what conduct is illegal, which courts 

are available to prosecute weapons offenses and how these offenses are best proved. Training the 

local courts in regard to weapons offenses is also helpful and ensures that their understanding 

matches US expectations as to how weapons offenses will be handled. 

(x) Emergency Law. Post-conflict governments may have reason to resort to some form 

of martial law or to take-on other extraordinary legal authority. This was certainly true in Iraq. 

Be prepared to become expert on the substance of the emergency powers and to act as a liaison 

to the host nation's courts to ensure a common understanding on the part of US forces operating 

in the area and local courts as to how the emergency law will operate. 

Chapter Vlll - Project Narratives 
gg, pppp

implementation of those aspects of a property claims process that will operate at the brigade 

level. 

(z) Military-to-Host Nation Court Liaison. In a post conflict environment there will 

inevitably be tension between the local courts and military operations. At both the division and 

brigade level, Judge Advocates should be prepared to serve as the link between judges and 

commanders in cases where either the military had interfered with the courts or the courts have 

in some way interfered in a military operation. For example, there were several instances when 

the US military unilaterally intervened and obtained the release of individuals lawfully detained 

based upon a judge's order. Sometimes these individuals were informants, Iraqi Army personnel, 

or employed by the Coalition. While intervention in some cases was understandable, it was no 

less problematic for the Iraqi judges or the rule of law program. Likewise, there were at least two 

occasions when the Iraqi police, along with the local courts, stopped a Coalition convoy and 

inexplicably detained the Turkish drivers, all of whom were lawfully in Iraq as Coalition 

contractors. This action delayed delivery of critical goods to a nearby FOB, causing significant 

disruption to operations within the brigade AOR. It is under these various circumstances that a 

Judge Advocate can usefully serve as an honest broker and help resolve these disputes in an 

informed manner and on a minimally disruptive basis. 

3. Themes 

Finally, the following represents several themes that if kept in mind will serve well in 

shaping post-conflict rule of law operations: 

Modernization. Characterizing our efforts in support of host nation justice sector 

development as "reform" can be a mistake. It was more realistic and significantly less frustrating 

to treat this work more in terms of modernization rather than reform. It is important to convey 

that our objective is to help the host nation courts become more effective and efficient, not to 

change their legal system or legal traditions except for those features of their practice that do not 

meet minimal international standards of due process (e.g. requiring defense counsel, prohibiting 

torture and secret trial, etc.). 

Personal Relationships. It is imperative that anyone working with the courts establish 

good working relationships with the senior judges and lawyers in the relevant AOR. Among 

other things, this requires regular visits with serious agendas (not just an occasional drive-by) 

and a demonstrated understanding of their legal traditions and the important issues they face. 

You do not want to be regarded as a legal tourist. Most importantly, be prepared to work hard to 

deliver meaningful support to each courthouse in whatever form it might take. Do not make 

Chapter Vlll -Project Narratives 
give the subject credibility it may not have when taught by US lawyers. 

Sustainability. Consider sustainability in connection with every program or project. It 

can take the form of long term training and technical maintenance contracts that would be funded 

for periods of time beyond the completion of the project itself. Without sustained support, 

otherwise useful projects may be prematurely abandoned. It is not always self evident to host 

nation personnel that a particular project will be helpful and improve productivity. New concepts 

and modem technology often take time to gain credibility and work their way into the culture. 

Extended training and O&M agreements provide that opportunity. Not every program is 

sustainable but it is important to at least examine the possibility. 

Chapter Vlll -Project Narratives 
cell, weapons and ID cards) by each courthouse (coordinate with USMS checklist) 

d. Assess courthouse renovationlconstruction requirements 

e. Assess ability to communication with other courts and IPS or ICS 

2. Meet with the chief judge in each courthouse and discuss the following: 

- Judicial pay (did all Judges get the pay raise) 

- Where are pretrial defendants being detained 

- Where are post trial defendants being held 

- Ability to communication with other courts and IPS or ICS 

- Court administration/Automationrequirements 

- Are indigent defendants receiving appointed counsel (if not, why not) and are 

indigent counsel being paid 

- Judicial training requirements 

- Courthouse renovationlconstruction requirements 

- Criminal court efficiency/productivity 

- Effectiveness of Judicial Counsel's administrative support and concept of an 

independent judiciary 

- Relationship with the IPS (corruption) 

NOTE: Cross check Trial Judge's view with Chief Appellate Judge's 

assessment. 

3. See police stations and D-cells and meet police leadership (coordinate with IPA). 

4. Review with JA and CA the work that has been completed and the on-going or proposed 

projects. Meet with BCT Commander to discuss his assessment of justice sector in his AO. 

5. Prepare Courthouse map by province. 

6. Evaluate the Executions Office, Notary Public and any other office or institution that supports 

the courts. 

Chapter VIIl -Attachments 
p

Appellate Court Boundaries: 
 

Judicial pay (did all Judges get the pay raise): 
 

Staff: 

Judges 1 more needed or expected: 

ClerWSupport staff (not gardener, tea guys, etc): 

Bailiffs1 in court police: 

Court Administrator: 

Judicial investigators: 

Lawyers 

Do they work in the police stations 

Any more needed 

Prosecutors (how many courts): 

Type of Courts: 

Use of translators1 who pays 

Judges Weapons/ source: 

Weapons cards1 source: 

Judges PSD: 

Armed 

Trained 

Paid 

Chapter Vlll - Attachments 
Copy machine 

Office Furniture 

Power/ Generator 

A/C 

Office Supplies 

Other Office equipment 

Vehicles 

Communication with outside (at a minimum BAGHDAD, Ct of Appeals and IPS): 

Landline availability 

Messengers (who/ what fonn of transportation / is it reimbursed) 

Cellular network available 

Enough incoming lines 

Satellite TV 

Court administration/automation requirements: 

Computers/ printers (source)/ training / maintenance 

Internet Cafe 

SECURITY: 

Perimeter bamers (reinforced walls / stand-off 

Metal detectors1 are they used 

FPS/IPS (how many of each)(will IPS stay after full deployment of FPS) 

Female Guards 

Chapter VllI - Attachments 
Paid1 who 
 

Detention cell 
 

Proximity to ING or IPS facility 
 

[COMMANDER threat level in area] 
 

[IPA TEAM AVAILABILITY] 

Courthouse renovation/construction history (who paid and the cost and type of work): 

(was the courthouse looted and were records destroyed): 

Current requirements -- plumbing1 water/ electrical/ courtroom (use it)/ space/ trash: 

Aware of independent judiciary and separation of courts from ministry ofjustice: 

How effective is Judicial Counsel's administrative support 

How effective is the Court of Appeals administrative support 

Are indigent defendants receiving appointed counsel (if not,why not) 

Are indigent counsel being paid; are they being paid according to new fee schedule; are they 

being paid quickly enough. 

Chapter VIII - Attachments 
Related Offices: 

Executions Office (where1 who supervises1 problems) 

Notory Public (any problems) 

Property Records Office (where/ who supervises/ problems) 

"Scribes" (any problems) 

Where are bail documents prepared: 

Identify each police station that brings cases to your court: 

Relationship with the IPS: 

Evidence of corruption or prior cases 

Evidence of prisoner abuse or prior cases 

Access to hospital for required examination 

Do they consistently arrest on warrant; do they ever use exigent circumstances 

Do police get defendants to court within 24 hours of arrest 

Do police get defendants to court for trial on schedule 

Do they arrest witnesses or victims (other than on warrant approved by the court) 

Do they arrest family members in lieu of fugitives 

Are cases being completed in 6 months: 

Chapter Vlll - Altachments 
How many detention facilities in this area 

Who transports prisoners 

Who feeds defendants 

Jail conditions generally 

Visit the jail 

Are juveniles segregated 

Are females segregated 

Any contact with ICS 

What happens to post-trial defendants; who transports; any reason for delay; 

External influence: 

Tribal influence 

Religious intimidation (Sharia'a law apply in personal status court) 

Any evidence of separate courts 

Political intervention 

[Criminal corruption] 

Have Judges received any threats: 
 

Criminal court efficiency; what are the obstacles to having a normal caseload, if any: 
 

Chapter VIll - Attachments 
Remarks: 

1. SEE IPA notes. 

Chapter Vlll - Attachments 
p

Education: 

Experience: 

Ethnicity: 

Tribe: 

Religion: 

How appointed: 

Judicial Review Commission: 

Pay: 

Weapon: 

Weapon Card: 

PSD: 

ID: 

City: 

Chapter Vlll - Attachments 
Weapons / permits (judges): 

Bailiffs/IPS: 

Metal Detectors: 

Detention cells: 

FPS: 

IPS: 

24 Hour protection: 

Search: 

ID cards: 

Chapter Vlll - Attachments 
(supervised by a Judge) and Notary Public service, with no problems reported in regard to either 

office. Land Registration Office is off-site. The Legal Gazette is current and they have a copy 

of the TAL. Bond is executed at the Police Station. None of the Judges have a weapon, but one 

has a 4Ih ID permit. None have PSD or current judicial ID, other than the 4Ih ID card. Pay is 

current, including salary increase. Judges use translators (volunteers and paid) as required. The 

Judges are aware of the IPCC and understand that the judiciary is now separate from the MoJ. 

The Judges are interested in training in human rights law and as to changes in Iraqi law. 

The Courthouse has 10 FPS, including a woman, sharing 2 Ak-47's, but no training 

(except former military experience). They also have 2 armed IPS guards who provide security 

inside the courthouse and may serve as bailiffs. 24-hour coverage is provided. There is 

moderate set-off,but perimeter banier is inadequate, although Judges are satisfied. There is no 

metal detector or detention cell but everyone is searched at a single point of entry. There are no 

working landlines or cellular telephones available to the courthouse; nor is there an Internet cafk. 

The Court relies on messengers using taxi's without reimbursement. Did not see detention 

facility due to time. Judges claim that females are sent to Ba'qubah (or to Muktiar) and juveniles 

are segregated. Judges visit the detention facility on a regular basis and report that conditions are 

good and food is provided by the IPS. Judges meet with IPS as needed. Most arrests are made 

on warrant, but Judges acknowledge exigent circumstances exception. IPS does not arrest 

family, but does arrest victims/witnesses, but only on warrant and never for more than a day 

unless being prosecuted for failing to appear 3 times. IPS complies with 24-hour rule and they 

have a courtroom which they use. Cases are being completed in less than 6 months and no 

contact with ICS. The IPS transports prisoners. 

Indigent defendants are being provided attorneys during investigative proceedings and 

defendants are being advised of their rights, but most if not all are still talking. Defense 

attorneys are being paid according to the new fee schedule and some are using the new law. 

There are approximately 12 attorneys working in the Courthouse. They purchase own legal 

materials (no library). 

This Courthouse was looted, but has recently been renovated by the 4Ih ID. Judges claim 

that they are as busy now as they were before the war in all the courts. They report that the 

public fears tribal and gang retaliation and with so many weapons available that fear is an 

obstacle to a fully functioning court. The Judges report no evidence of prisoner abuse or IP 

corruption since the war, although they "hear" things. The Judges deny direct tribal, religious or 

AIF influence, but acknowledge tribal courts are very active. One case of an IPS officer 

Chapter VIll - Attachments 
[Judges interviewed at the FOB] 

Chapter Vlll -Attachments 
2 

N 

-4 gJ 

e 

5 

a 

TT PACKAGE, TO INCLUDECOMPUTERS. PRINTERS, SCANNERS. EXTENDED TRAINING, CONTlNUlNG TECHNICALSUPPORT AND INTERNETACCESS; GENERATOR: A VEHICLE; WEAPONS AND 

p'P- PERMllS FOR ME JUDGES; PSD AND WEAPONS FOR PSD: ADDITIONAL FPS MTH WEAPONS AND TRAINING. TO INCLUDE FEMALE GUARDS; CELL PHONES FOR EACH JUDGE: AND FURNWRE 

-- SEWRIW ASSESSMENT 

g SET OFF AND BARRIER PROTECTIONARE ACCEPTABLE, MOST JUDGES WVE PSD BUT THEY ARE UNARMEDAND UNTRAINED. SOME JUDGES HAVE WEAPONS. 14 FPS ARE PRESENT BUT WTH 

ONLY 3 WEAPONS THEY HAVE A METAL DEECTOR AND SEARCH EVERYONE AT A SINGLE POINTOF ENTRY IPS STATUS AT COURTHOUSE IS UNKNOWN THEY WVE A DETENTION CELL 2 MOJ 

zFT GUARDS, 24 HOUR COVERAGE; JUDGES WANT27 FPS 

3 

3 
Judges have PSD protection 

Each courthouse has adequate perimeter barrier protection (and set off) 

Male and Female are searched at a single entry control point 

Court has and uses metal detectors 

Armed and Trained guards provide 24 hour protection at each courthouse (FPS) 

Iraqi Judges are satisfied with courthouse security 

CDR's andlor Sphere of Influence (SOI) Point of Contact (POC) are satisfied with 

courthouse security 

[Detention cell at Courthouse where needed] 

Green:Most, if not all, criteria must be satisfied. 

Amber: Must have armed guards providing 24 hour security, everyone is searched (including 

females) at single point of entry and guards use metal detectors. 

-

Red: Failure to meet the criteria for Amber. 

RULE OF LAW 

Criteria: 

Court is not subject to outside influence (as determined by Iraqi Judge's and the CDR'sI 

SO1 POC evaluation of outside influence in each court); including, but not limited to: 

AIF intimidation 
 

Excessive Tribal interference 
 

Religious influence 
 

Criminal corruption 
 

Political (Party) intervention 
 

Chapter Vlll - Attachmenls 
defendants inexplicably released or acquitted, baseless refusals to issue warrants, unexplained 

detentions, complete failure to enforce the law, etc.), CDR and/or SO1 POC agree that the court 

appears to be free of outside influence, Judges themselves report no outside influence and the 

court is ethnically diverse and reasonably matches the population in the jurisdiction it serves. 

Amber: No more than one suspicious incident, CDR andlor SO1 POC concerned about outside 

influence but not recommending direct intervention, Judges report no more than minor outside 

interference with the court, the court has a current edition of the Legal Gazette and there are no 

systemic failures in following Iraqi law or procedure, and there have been no complaints 

concerning ethnic makeup of the court. 

-

Red: CDR or SO1 POC's recommendation and/or failure to meet the criteria for Amber. 

Criteria: 

Courthouse building (basic): Minimally adequate roof, water, windows, doors, electrical 

and sanitary conditions (restrooms) 

Courthouse building (specialized): Adequate air conditioning, functional courtroom, 

adequate furniture and office supplies, sufficient space for courthouse staff and 

courthouse property is free from trash 

Court has adequate office automation1 internet capacity (at least one copy machine, 

computers, scanners, printers, appropriate software, continuing IT training and technical 

support) 

Court has access to working telecommunications (landlines and/or cellular telephones) 

Court has adequate number of vehicles 

CoJ owns property/building 

Green: Most, if not all, criteria must be satisfied. 

Chapter Vlll -Attachments 
CDRS assessment: 

Past experience with CAC and/or related cases has been positive 

AIF threat level in area is low 

SO1 history with Court has been positive 

Judges and/or staff have not been identified as associating with the AIF or other 

criminal elements 

There is an active JCC in the community 

There is an effective1 reliable Iraqi Police infrastructure (including a functional 

detention facility) 

There is a demonstrated ability to use arrest and search warrants in conjunction 

with US/ Iraqi operations 

There have been successful Coalition projects in the community 

Senior Iraqi Police and other ISF leaders have not complained about the integrity 

of the court and report it to be cooperative 

Chief Judge does not object to or express concern in connection with handling CF cases 

Judges and/or staff have not been threatened 

There have been successful Coalition projects at the courthouse 

No other Iraqi Judges have warned against using a particular court 

Green: CDR'sI SO1 POC assessment that court is trustworthy and that he has either successfully 

referred cases in the past or is confident that cases could be reliably referred in the future the 

Chief Judge voiced no objection to handling Coalition related cases or Coalition witnesses and 

there have been no suspicious incidents involving cases in which the Coalition has an interest 

-

and the Iraqi Police are able to competently support the investigation and prosecution. 

Chapter Vlll - Attachments 
NOTE 1: Security and Rule of Law categories should be considered again in this 

category (CAC)with a specific focus on whether any of the factors considered in 

each of these two separate categories would effect whether a particular Iraqi court 

could reliably and effectively handle prosecutions in which the Coalition and 

either an interest or a role. 

NOTE 2: This analysis also takes into account a particular court's ability to 

handle cases involving crimes or attacks that threaten the stability of the 

govenunent. 

Chapter Vlll - Attachments 
(including the personal security of each Judge); (2) the status of the infrastructure (including 

the functionality of the courthouse, access to telecommunication resources and IT capacity); 

(3) the ability to comply with rule of law requirements generally; and (4) whether the court is 

able to impartially and effectively handle matters in which the Coalition has an interest. The 

assessment consisted of a physical inspection of the courthouse, interviews with Judges, 

court staff, local Iraqi lawyers and Iraqi Police Commanders. We have also solicited an 

evaluation from US Commanders in whose A0 the court was located. 

2. The assessment has produced recommendations for what can be done to 

immediately help the courts in TF Danger's A0 become more effective, modem and orderly. 

Both categorical and courthouse specific requirements have been identified. The rationale 

for making support to the courts a high priority is as follows: 

a. A stable and secure Iraq cannot be established without ensuring a reliable and 

effective judicial system. Like the police and the prisons, the courts play an 

inescapably essential role in protecting the Iraqi public and enforcing the rule of 

Law. A legitimate and respected judicial system is inextricably tied to our ability 

to successfully and reliably shift to the Iraqis the responsibility for dealing with 

the continuing and imperative security problems in Iraqi. Fully functioning and 

impartial courts are essential to Iraqi civil and military self reliance, one of the 

Division's end-states. 

b. Courts cannot be effective unless they are secure. The functionality of every 

courthouse is directly dependent on both judicial and courthouse security; 

c. Much can be accomplished in improving courthouse security and judicial 

efficiency with a modest investment of resources. 

3. The following represents our recommendations for addressing the identified 

requirements at the Division level or higher: 

a. The DivisionICorps will coordinate with the Council of Judges, the Court of 

Appeals and the PC0 in an effort to expedite the use of IRRF funds in renovating 

existing courthouses and constructing new courthouses where appropriate; 

b. The Division/Corps will also work with USAID, OTI, RTI and the Courts of 

Chapter Vlll - Attachments 222 
day period. 

c. The DivisionICorps will also work with senior judicial leaders in Baghdad to 

expedite the deployment of trained and fully armed FPS and judicial PSD. 

4. The following represents what can be done at the Brigade level to meet the immediate 

needs of local courts: 

a. 	 Provide at at least one vehicle to each court; 

b. 	 Provide an adequate generator if not already purchased as part of the IT 

package (e.g. Khaniqin and Kifii, two courthouses that will not be receiving 

the IT package); 

c. 	 Provide miscellaneous office equipment (varying by court, to include copy 

machines, furniture and air conditioners); 

d. 	 Provide cellular telephones to each judge once working cellular networks are 

available in order to facilitate communication when judges are working out of 

the office as they are required to do (investigating crimes, interviewing 

witnesses, etc.); 

e. 	 Arrange for a serviceable sidearm to be provided to each judge and 

prosecutor. The DIV will look for alternatives should the BDE's not be able 

to identify a source of weapons. 

f. 	 Initiatelsupport S-5 courthouse renovation projects using CERP or other BDE 

funding as it becomes available. These projects must be coordinated with 

PC0 and FPS projects described in (g). Care should be taken to ensure that 

in whatever combination the scopes of work, however derived, include the 

Courthouse specific elements described in Attachment A, subject to the 

identified exceptions and to Iraqi judicial buy-in. 

g. 	 In addition, almost every courthouse lacks adequate perimeter barrier 

protection. This requirement will be met as part of a separate project, funded 

by FPS money, that will include a site survey to be conducted by a team 

consisting of BDE Engineers, a Provincial FPS representative, the BDE JA 

223 	 Chapter VIII -Attachments 
the Court of Appeals at this time. 

Bruce A. Page1 

LTC, JA 

Iraqi Court Liasion 

* The fact that a generator is being provided by the IT project must be synchronized with other 

Courthouse projects. 

Chapter VllI - Attachments 
- Single Point of Entry* 

- Search Room* 

- FPS Office1Quarters* 

DIV Engineers recommend a single, two room building to be located 

adjacent to the single point of entry; one room to be used to search visitors 

and the other for FPS offices and quarters. 

- Functional Courtroom 

In most cases this will mean renovation while in others new construction 

may be required. We should defer to the Chief Judge as to whether a 

courtroom is necessary in the courthouses that are now without. 

* These features will be part of a separate project, funded by FPS money, that will include a site 

survey to be conducted by a team consisting of CF Engineers, a Provincial FPS representative, 

the BDE JA and a Provincial Court representative. The team will meet with and include as part 

of the survey team the Chief Judge at each courthouse. This project will be tasked by FRAGO 

and will be synchronizedlde-conflictedwith PCO, CERP and IT projects. However, we should 

take care to ensure that in whatever combination the statements or scopes of work, 

however derived, include tbe above elements, subject to the exceptions and to Iraqi judicial 

buy-in. CPT Chris Simpson will be the POC. 

Chapter VllI - Attachments 
a. 	 The status of any renovation or construction projects involving the courthouse or 

ancillary buildings; 

b. 	 Any changes in the Judicial (including prosecutors) or support staff and if there are 

new Judges or Prosecutors: 

1. 	 Prepare the attached biographical worksheet 

2. 	 Take a digital photograph 

c. 	 The status of each Judge's Personal Security Detail: 

3. 	 Are they armed (with necessary weapons permits) 

4. 	 Are they trained (other then prior military service) 

5. 	 Is each team complete 

4. Are they being paid 

d. The status of the Facility Protection Service (FPS) assigned to each courthouse: 

1. Are FPS personnel armed (with necessary weapons permits) 

2. 	Are FPS personnel adequately trained 

3. Are they in uniform with proper identification 

6. 	 How many are available for duty (one or two shifts) 

5. 	 Do they have an operations center 

6. 	 Are they being paid 

e. 	 The status of the Iraqi Police who work at the courthouse: 

1. How many are available for duty 

2. 	Are they working inside or outside the courthouse 

2. 	Are they working in a court security capacity inside the courthouse 

f. 	 Is a female guard present during business hours (IP or FPS); 

c. 	 Do the guards have a metal detector and is it being used; 

d. 	 Is everyone being searched (male and female) at a single point of entry; 

Chapter Vlll - Attachments 
i. 	 What edition of the Legal Gazette does the court have available; 

j. 	 Is there an Executions Office; where is it located and who supervises it; 

k. 	 Do the Judges have personal weapons and carry permits; 

1. 	 Has the site security survey been completed; 

m. 	The Chief Judge's opinion on the level of security; is he satisfied with courthouse and 

judicial security; 

2. The Commander will also include his subjective assessment of the court, to include any 

significant events or reports involving the courts, the threat level in that area or any other 

engagement with the legal system. The IPA personnel in that A0 should be utilized if available. 

The Court Assessment Team is interested in the following: 

a. External influence: Tribal intimidation, interference by religious leaders, criminal 

conuption, or intervention by political leaders or political parties (and whether there is any 

evidence of separate tribal or religious courts); 

b. 	 Are indigent defendants receiving appointed lawyers and are the lawyers being paid; 

c. Are Iraqi Police and the Judges advising defendants of their right to remain silent and 

to have an attorney provided if they can't afford one; 

d. 	 Iraqi Police Performance, to include the following: 

1. 	 Evidence of Iraqi Police corruption 

2. 	 Evidence of prisoner abuse 

3. Do the police consistently arrest on warrant; and do they ever use 

exigent circumstances 

4. 	 Do police get defendants to court within 24 hours of arrest 

5. 	 Do police get defendants to court for trial on schedule 

6. Do they arrest witnesses or victims (other than on warrant approved 

by the court) 

7. 	 Do they arrest family members in lieu of fugitives 

Chapter Vlll - Attachments 
Chapter Vlll - Attachments 
IPLO PROBLEMSIEQUIPMENTISSUES: 

IPLO PERSONNEL ON DUTY 1CTOILEAVEITDY: 

ATTACKS ON 1P PERSONNEL: 

o 	 Attacks against IP Stations 

o Attacks against IP Personnel 


Kidnappings: 


Equipment Issues: 


Raw Intelligence: 


Other SIGACTs: 

Hostile Action at FOB: 

Hostile Action ~nvolvingIPLO's: 

Number of PSMR's completed (list by station name & grid): 

Number of station visits (list by station name & grid: 


Check on the following issues at each station visited talk with IP & detained persons (check Jail 


conditions): 


1. 	List any allegations by the IP of Judicial corruption: 

2. 	 List any incidents involving individuals being arrested by IP, but not taken to court in a 

timely manner (72 hours): 

3. 	 List any incidents involving the IP arresting witnesses and victims along with the 


defendant. 


Chapter VllI - Attachments 
Chapter VllI - Attachments