RULE OF LAW HANDBOOK
 A PRACTITIONER’S GUIDE FOR JUDGE 

ADVOCATES
 

2011 

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

Center for Law and Military Operations
 

Charlottesville, Virginia 22903
 

clamo@conus.army.mil 

clamo.clamotjaglcs@us.army.smil.mil 
 

The 2011 Rule of Law Handbook is dedicated to all those who promote the rule of law in the most 

difficult of circumstances, especially the members of the U.S. Armed Forces as well as our 

interagency and coalition partners. 
 

RULE OF LAW HANDBOOK 

A PRACTITIONER’S GUIDE FOR JUDGE 

ADVOCATES
 

2011 

Although the Center for Law and Military Operations (CLAMO) publishes the Rule of Law 

Handbook, it is the product of contributions by dozens of authors from a multitude of agencies, both 

U.S. and foreign, non-governmental and international organizations, military and civilian, over the 

course of several years. Due to its iterative nature, it would be difficult to list all those who have 

contributed to the development of this, the fifth, edition of the Handbook. Official clearance 

processes required by some agencies to ascribe individual authorship credit makes doing so even less 

practical. Suffice it to say, the current editor is indebted to the past and current contributors, and in 

particular to the CLAMO 2011 interns who have helped bring this publication together. 

Editor: Lt Col Mike Cole, British Army 

Cover design by 1LT B. Cox, U.S. Army JAGC
 

The contents of this publication are not to be construed as official positions, policies, or decisions of 

the United States Government or any department or agency thereof. 

Rule of Law Handbook - 2011 

TABLE OF CONTENTS 

Foreward... ........................................................................................................................................................ v
 

Preface....... ..................................................................................................................................................... vii
 

Chapter 1: The Rule of Law: Conceptual Challenges ....................................................................................... 1
 

I.	 Describing the Rule of Law ..................................................................................................2
 

A.	 Definitions of the Rule of Law ....................................................................................2
 

B.	 A Definition of the Rule of Law for Deployed Judge Advocates ...............................3
 

C.	 Formalist v. Substantive Conceptions of the Rule of Law ..........................................9
 

II.	 Rule of Law Operations ......................................................................................................10
 

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

Operations .................................................................................................................11
 

B.	 Operational Impact ....................................................................................................14
 

C.	 The Importance of Focusing on Effects ....................................................................15
 

Chapter 2: Key Players in Rule of Law ........................................................................................................... 17
 

I.	 U.S. Policy for Conflict Prevention and Response: Interagency
 

Coordination and Structure .................................................................................................17
 

A.	 The Civilian Approach to Conflict Prevention and Response ...................................19
 

B.	 The Department of Defense Approach......................................................................20
 

C.	 U.S. Agencies Influencing Stability Operations .......................................................21
 

II.	 U.S. Governmental Agencies Involved in Rule of Law ......................................................26
 

A.	 Department of State...................................................................................................26
 

B.	 U.S. Agency for International Development .............................................................32
 

C.	 Department of Justice................................................................................................45
 

D.	 Department of Defense..............................................................................................50
 

E.	 United States Institute of Peace.................................................................................57
 

III.	 International Actors............................................................................................................. 58
 

A.	 United Nations...........................................................................................................59
 

B.	 International Monetary Fund .....................................................................................61
 

C.	 World Bank ...............................................................................................................62
 

D.	 The North Atlantic Treaty Organization ...................................................................64
 

E.	 Non-Governmental Organizations ............................................................................65
 

F.	 Coalition Partners......................................................................................................67
 

Chapter 3: The International Legal Framework for Rule of Law Operations .................................................71
 

I.	 Identifying a Rule of Law Legal Framework ......................................................................71
 

A.	 United Nation Mandates...........................................................................................71
 

B.	 Mandates Pursuant to Bilateral and Multi-lateral Agreements .................................74
 

C.	 Mandates Pursuant to National Legislation...............................................................75
 

II.	 The Rule of Law Legal Framework ....................................................................................75
 

A.	 The Law of War ........................................................................................................75
 

B.	 Occupation Law ........................................................................................................77
 

C.	 Human Rights Law ....................................................................................................79
 

III.	 Conclusion .......................................................................................................................... 82
 

Chapter 4: The Institutional and Social Context for the Rule of Law ............................................................. 83
 

I.	 Legal Institutions................................................................................................................. 83
 

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Rule of Law Handbook - 2011 

A.	 Legislatures............................................................................................................... 83
 

B.	 Courts........................................................................................................................ 84
 

C.	 Police ........................................................................................................................ 89
 

D.	 Detention and Corrections ........................................................................................ 91
 

E.	 Military Justice ......................................................................................................... 93
 

II.	 Civil Law Systems.............................................................................................................. 95
 

A.	 The Civil Law Ideal of Separation of Powers ........................................................... 95
 

B.	 Specific Aspects of Civil Law .................................................................................. 96
 

III.	 Religious Legal Systems and Sharia................................................................................... 99
 

A.	 The Sharia............................................................................................................... 100
 

B.	 The Application of the Sharia ................................................................................. 101
 

C.	 The Substantive Sharia ........................................................................................... 101
 

D.	 International Law and Jihad .................................................................................... 102
 

E.	 Sunnis and Shiites ................................................................................................... 103
 

F.	 Conclusion .............................................................................................................. 104
 

IV.	 Combined Systems ........................................................................................................... 104
 

V.	 Recognized Alternatives to the Formal Court System...................................................... 105
 

A.	 Mediation................................................................................................................ 105
 

B.	 Arbitration............................................................................................................... 106
 

C.	 Customary, Traditional, or Informal Justice ........................................................... 106
 

D.	 Truth and Reconciliation Commissions .................................................................. 107
 

E.	 Property Claims Commissions ................................................................................ 108
 

VI.	 The Implications of Gender for Rule of Law Programs ................................................... 109
 

VII.	 Civil Society ..................................................................................................................... 112
 

A.	 Operational Objectives for Engaging, Leveraging, and Supporting 

Civil Society ........................................................................................................... 113
 

B.	 How to Engage with Civil Society in Rule of Law................................................. 113
 

C.	 Conducting a Baseline Assessment in this Sector .................................................. 114
 

D.	 Common Challenges and Lessons Learned to Guide Implementation ................... 116
 

VIII. Non-State Security Providers ........................................................................................... 117
 

A.	 Risk Assessment and Analysis ............................................................................... 118
 

B.	 Assessing the Role of Non-State Security Providers .............................................. 118
 

C.	 Ten Lessons Learned .............................................................................................. 120
 

Chapter 5: Planning for Rule of Law Operations .......................................................................................... 123
 

I.	 Interagency Reconstruction and Stabilization Planning Framework................................ 123
 

A.	 Introduction............................................................................................................. 123
 

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

and Stabilization ..................................................................................................... 124
 

C.	 Military Primary Stability Tasks ............................................................................. 126
 

D.	 The Interagency Planning Framework: Concluding Thoughts............................... 128
 

II.	 Military Planning .............................................................................................................. 128
 

A.	 Why Planning is Critical ......................................................................................... 128
 

B.	 What is Planning? ................................................................................................... 129
 

C.	 The Military Decision Making Process .................................................................. 130
 

D.	 Military Planning and Rule of Law Operations: Some Final Thoughts ................. 140
 

III.	 Planning to Deploy ........................................................................................................... 141
 

A.	 Pre-deployment Planning (D minus 180 to 30) ...................................................... 141
 

B.	 Initial Deployment Planning (D minus 30 to plus 90)............................................ 147
 

C.	 Sustained Deployment Planning (D plus 91).......................................................... 153
 

IV.	 Conducting Initial Situation Analysis / Baseline Assessment .......................................... 155
 

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Rule of Law Handbook - 2011 

A.	 The Data Collection Phase ......................................................................................156
 

V. Beginning the Running Estimate: Metrics ........................................................................170
 

A.	 Developing Metrics .................................................................................................172
 

B.	 U.S. Institute of Peace: Measuring Progress in Conflict Environments 

Metrics Framework .................................................................................................177
 

C.	 Interagency Conflict Assessment Framework .........................................................185
 

D.	 Counterinsurgency Advisory and Assistance Team (CAAT) operating 

in support of COMISAF..........................................................................................185
 

E.	 The United Nations Rule-of-Law Tools for Post-Conflict States: 

Monitoring Legal Systems ......................................................................................186
 

F.	 Gathering the Data ..................................................................................................186
 

G.	 Conclusion...............................................................................................................187
 

Chapter 6: Fiscal Considerations in Rule of Law Operations ....................................................................... 189
 

I.	 Purpose.............................................................................................................................. 191
 

A.	 Introduction .............................................................................................................191
 

B.	 General Prohibition on Retaining Miscellaneous Receipts and 

Augmenting Appropriations....................................................................................191
 

II.	 Operational Funding, Foreign Assistance, and Rule of Law Activities ............................193
 

A. Foreign Assistance Generally ......................................................................................193
 

B.	 Foreign Assistance Specific Limitations .................................................................194
 

III.	 Department of State Appropriations for Rule of Law Activities ......................................195
 

A.	 Economic Support Fund ..........................................................................................195
 

B.	 Bureau of International Narcotics and Law Enforcement Affairs ...........................198
 

IV.	 Department of Defense Appropriations for Rule of Law Operations ...............................199
 

A.	 Afghanistan Security Forces Fund / Iraq Security Forces Fund ..............................200
 

B.	 Commander’s Emergency Response Program ........................................................201
 

C.	 Iraqi Funded Commander’s Emergency Response Program ...................................203
 

V.	 Funding Rule of Law Through Provincial Reconstruction Teams ....................................204
 

A.	 Provincial Reconstruction Teams and Embedded Provincial 

Reconstruction Teams .............................................................................................204
 

B.	 Funding Rule of Law Operations via PRTs, ePRTs and other CMOs ....................205
 

Chapter 7: Theater-Specific Information on Rule of Law: Afghanistan and Iraq .........................................207
 

I. Afghanistan ....................................................................................................................... 207
 

A.	 Overview .................................................................................................................207
 

B.	 The Plans for Rule of Law ......................................................................................207
 

C.	 The International Framework..................................................................................210
 

D.	 U.S. Government Efforts.........................................................................................211
 

E.	 Provincial Reconstruction Teams ............................................................................215
 

F.	 The Legal System of Afghanistan ...........................................................................217
 

G.	 Successful Rule of Law Practices in Afghanistan...................................................225
 

H.	 References and Further Reading .............................................................................225
 

II.	 Iraq .................................................................................................................................... 227
 

A.	 International Framework .........................................................................................227
 

B.	 U.S. Rule of Law Efforts: Transition from Military to Civilian Lead .....................227
 

C.	 Current U.S. Rule of Law Strategy – Implemented Through 

Interagency Rule of Law Coordination Center (IRoCC) ........................................228
 

D.	 The Way Forward ....................................................................................................231
 

E.	 Iraqi Criminal Law and Criminal Procedure ...........................................................232
 

F.	 Security Agreement .................................................................................................238
 

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Rule of Law Handbook - 2011 

G.	 Engaging Iraqi Judges............................................................................................. 239
 

H.	 References and Further Reading ............................................................................. 242
 

Chapter 8: Human Terrain Teams: An Enabler for Rule of Law Judge Advocates and Paralegals ...................... 245
 

I.	 Introduction ...................................................................................................................... 245
 

II.	 Background....................................................................................................................... 246
 

III.	 Why Use a Human Terrain Team? ................................................................................... 247
 

IV.	 How a Human Terrain Team Might Be Employed .......................................................... 248
 

Chapter 9: Rule of Law Narratives ............................................................................................................... 251
 

I. Justice – A Centre of Gravity Analysis ........................................................................... 251
 

II.	 Finding Help in the Right Places for a Counterinsurgency Strategy ................................ 257
 

III.	 National Security Prosecutions in Afghanistan ............................................................... 260
 

IV.	 When Mars and Venus Align: The Next Step in Interagency Cooperation ...................... 268
 

V.	 The Rule of Law at Dawn: A Judge Advocate’s Perspective on Rule of 

Law Operations in Operation Iraqi Freedom from 2008 to 2010 ..................................... 272
 

Appendix A: The Rule of Law and Judge Advocates: A Short History ....................................................... 285
 

I.	 Rule of Law as the Foundation of the United States ........................................................ 285
 

II.	 Rule of Law Efforts in the Philippines and Cuba (1898-1902) ........................................ 286
 

III.	 Rule of Law Efforts in Germany and Japan (1945-1950) ................................................ 288
 

IV.	 Rule of Law Efforts in Southeast Asia (1964-1973) ........................................................ 289
 

V.	 Rule of Law Operations in Afghanistan and Iraq (2001 to present)................................. 290
 

Appendix B: Rule of Law Training .............................................................................................................. 293
 

Appendix C: Acronyms ................................................................................................................................ 299
 

iv 
 

Rule of Law Handbook - 2011 

FOREWORD
 

Rule of Law practitioners around the world have relied on this Handbook for almost five years now. 

In fact, I have found this volume used by both civilian and military rule of law practitioners from 

many agencies across Afghanistan. Rule of law operations are conceptually difficult and hard to 

convert into tangible successes on the ground. This handbook has helped to make such operations 

easier to understand and execute. No other single volume has been as complete a reference for 

military and civilian practitioners alike. 

This year, the staff that worked so hard to produce this volume reflects the multi-national nature of 

rule of law efforts today. British Army Lieutenant Colonel Mike Cole has gathered an outstanding 

and diverse group of military, civilian, and international experts to update the 2011 version of the 

Rule of Law Handbook. I’ve known Mike since 2008, when he served on a multi-national and 

interagency assessment team for rule of law to advise on coalition strategy in the Central Command 

area of responsibility. He performed rule of law work in Afghanistan’s Helmand Province and in a 

range of assignments involving rule of law planning and academics. He exemplifies the knowledge 

and practical orientation of the many contributors to this year’s handbook. He and his team have 

brought that expertise together to produce an outstanding handbook. 

Although the rule of law in Afghanistan remains mostly just a goal, it is an indispensable goal. It also 

requires more than high sounding ideals—organization, resources, people, time, concepts, and much 

hard work are required to make progress in this critical line of effort. Over the past year, we have 

seen extraordinary advances in military efforts to support rule of law. In September 2010, the 

Chairman of the Joint Chiefs of Staff activated the U.S. Rule of Law Field Force-Afghanistan. On 

July 4, 2011, the Commander of the International Security Assistance Force, the NATO Senior 

Civilian Representative to Afghanistan, and the Deputy Minister of Justice of Afghanistan presided 

over the activation of the NATO Rule of Law Field Support Mission in Kandahar. As the 

commander for both these units, I know that my staff and key leaders relied on the Rule of Law 

Handbook as they addressed thorny problems confronting governance and rule of law here. 

Rule of law development is particularly important to the “comprehensive civil-military approach” 

adopted by NATO and ISAF members at Lisbon in order to set conditions for transition of security 

responsibility to the Afghan government. As General David Petraeus has emphasized repeatedly, 

delivery of dispute resolution is a key sector in which the Taliban competes effectively with the 

Afghan government. The Judge Advocate General’s Legal Center and School and the Center for Law 

and Military Operations help prepare our ranks to confront this challenge. And confront it we must, 

because stability in Afghanistan is critical to security in the region and throughout the globe. 

I look forward to seeing the 2011 Rule of Law Handbook on bookshelves in far flung locations over 

the coming year. The need to strengthen the rule of law will exist wherever people and their 

governments cope with conflict and instability. Whether you are reading this handbook out of 

academic curiosity or because you are working in this area, I trust you will appreciate it for the first 

class reference book that it is. Good luck! 

Brigadier General Mark S. Martins, USA 

 Commander 

NATO Rule of Law Field Support Mission & 

 Rule of Law Field Force-Afghanistan 

 Kandahar, Afghanistan 

v Foreword 

 

 

 

Rule of Law Handbook - 2011 

PREFACE 

America’s commitment to the rule of law is fundamental to our efforts to build an international 

order that is capable of confronting the emerging challenges of the 21st century.1 

This is the fifth edition of the Rule of Law Handbook published by the Center for Law and Military 

Operations (CLAMO) at The Judge Advocate General’s Legal Center and School (TJAGLCS). 

Much has changed since the publication of the first volume in July of 2007. At that time, “surge” 

operations in Iraq had just begun and the eventual outcome of that tremendous commitment of 

resources was far from certain. The fight in Afghanistan, while no less important, drew relatively 

little public attention. 

Four years on, the violence in Iraq has dropped precipitously, allowing the Iraqi people to assert their 

rightful sovereignty in very real and dynamic ways. American forces have redeployed from Iraqi 

cities, ended their combat mission, and commenced Operation New Dawn. Their presence in Iraq is 

now subject to the terms of the US-Iraqi Security Agreement.2

 Afghanistan has, for some time now, 

been at the forefront of public attention as it experienced its own surge of resources designed to move 

it along a similar path to success. 

Throughout these changes, judge advocates and their joint, interagency, intergovernmental and 

multinational (JIIM) partners have quietly gone about advancing the rule of law (ROL) in these 

locations and others.3

 In time, our military commitments in Iraq and Afghanistan will end. And so, it 

is fair to ask if there is still a need for judge advocates to concern themselves with rule of law 

missions, current or future? To answer anything other than “Yes!” would be shortsighted4

 and 

unrealistic given our history and hopes for the future. It would also condemn us to repeating past 

mistakes, forgetting lessons learned, and weakening the strong JIIM relationships that we have built 

along the way. 

When called upon to conduct ROL operations, a judge advocate’s response must be effective and, 

more so now than ever, economic. Although recent experiences will inevitably inform that response, 

judge advocates must also be agile and innovative in their thinking, planning and execution to ensure 

that their response meets these requirements. The battle for resources will become all the more 

consuming. As such, the design of ROL operations that make the best use of all available resources, 

from wherever they may come, is likely to be a critical factor in the efficacy of future endeavors in 

this field, and the overall success of the military mission. NATO’s Rule of Law Field Support 

Mission is a perfect example of how the U.S. led Rule of Law Field Force – Afghanistan (ROLFF-A) 

has leveraged NATO resources to enhance the overall efficacy of its ROL mission. 

We are well past the conflict stage in Kosovo, yet judge advocates are still there participating in rule 

of law missions in welcome partnership with civilian practitioners.5 It is no doubt the hope of all 

1

 The White House, National Security Strategy, 37 (May 2010), available at 

http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (last visited July 27, 

2011). 

2 Id. at 25. 3 See infra Appendix A, “The Rule of Law and Judge Advocates: A Short History”. 

4 See, e.g. Center for Law and Military Operations, Brigade Judge Advocate Symposium Report, at 5 (May 

2010) (“ROL is one area where JAs [judge advocates] have the opportunity to act as a force multiplier, instead 

of simply fulfilling their traditional advisory role.”), available at 

https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge Online authentication required). 5

 Task Force Falcon, 40th Infantry Division, California National Guard, Office of the Command Judge 

Advocate, After Action Report, Kosovo Forces 11, Deployed February 2009 – November 2009, at 6 (9 January 

2010) (“Trainers actively discouraged participation in ROL activities for fear the unit might step on the toes of 

vii Preface 
 

 

 

 

 

Rule of Law Handbook - 2011 

ROL practitioners that the environments in Iraq and Afghanistan will, one day, be similarly benign so 

as to make ongoing rule of law efforts there “un-newsworthy.” Such an environment should not be 

seen as diminishing the value of that work. Indeed, given that successful ROL operations have the 

potential to prevent conflict breaking out, it may be that we should actively plan to increase ROL 

activities in not only the post-, but also the pre-conflict phase of stability operations.6 

While rule of law efforts may become more or less newsworthy depending on the circumstances in 

which they are conducted, their conceptual value remains constant. Anyone who doubts that point 

need only look to the fourteen references to “rule of law” in the 2010 National Security Strategy, one 

of which describes the rule of law as an “essential [source] of our strength and influence in the 

world.”7

 If you value the role that judge advocates play in helping maintain that strength and 

influence, then read on. 

The 2011 Edition 

Like the 2010 edition, this edition of the Handbook is not a complete re-write of the one before it. 

That said, it does contain new material, updates and improvements throughout. Many members of the 

JIIM ROL community have devoted time and effort to ensuring the sections describing their work and 

spheres of influence are current. As ever, CLAMO is deeply in their debt for those contributions. 

Some chapters, by their nature, require updating every year; others do not. Funding sources and 

authorities change from year to year, and sometimes even more often. A Fiscal Law instructor at 

TJAGLCS has previously remarked “It’s all theoretical until you figure out how to pay for it.” That 

sentiment is equally as well expressed, albeit in a less eloquent but perhaps more catchy manner, by 

the refrain, “Show me the money!” in the film, Jerry McGuire. Given that any ROL program, no 

matter how modest, will need to be funded, and regardless of which expression you prefer, it is a 

sentiment worth bearing in mind. As such, if you read nothing else in this 2011 edition, Chapter 6 is 

a “must read.” 

Judge advocates who find themselves assigned to a ROL billet may wish to consult the new Appendix 

B, which contains a list of available Rule of Law Training Courses, with a view to preparing for their 

new role. In order to keep the Handbook to manageable proportions, some important ROL areas (for 

instance non-state or customary justice systems) are, unfortunately, under-represented. Where this is 

the case, the Handbook provides some select, but extremely valuable, footnote references to other, 

often hot off the press, publications, to satiate the ROL practitioner's thirst for knowledge. In a 

similar vein, where there has been repetition, the text has been streamlined – for instance, merging the 

separate 2010 Edition chapters on “Planning” and “Measuring” into a single, more comprehensive, 

chapter. Hopefully this will prove the old adage that less, [really] is more. 

This edition continues to draw upon the personal experiences of those who are actively involved in 

the rule of law mission, whether at the tactical or strategic level. In keeping with the “less is more” 

mantra, the number of narratives has been reduced, while the breadth of their subject matter has been 

expanded. Some articles describe the “nuts and bolts” of how a particular ROL mission has been 

approached. Others take a broader look, reflecting on issues such as the ROL as an insurgent’s center 

of gravity, or the developing interagency ROL landscape. And, almost by way of demonstrating the 

EULEX [European Union Rule of Law Mission in Kosovo]. . . . When TFF [Task Force Falcon] attorneys 

began working in this area, the EULEX and UN lawyers welcomed the help and wondered aloud why TFF 

attorneys had not come aboard in this area earlier.”), available at 

https://www.jagcnet2.army.mil/8525751D00557EFF (Army Knowledge Online authentication required). 6 See e.g. ch. 2, pt. F, the UK’s “Building Stability Overseas Strategy” and the investment in “upstream 

prevention”.

7

 The White House, supra note 1, at 2. 

Preface viii 
 

 

 

 

 

 

Rule of Law Handbook - 2011 

interagency dynamic, there is also a narrative from a USAID country officer who conducted Rule of 

Law operations in Afghanistan while deployed in his capacity as a National Guard officer. But the 

“narrative” that records the most fundamental change in ROL operations since the 2010 Handbook 

went to press is the Chapter 7 description of the ROLFF-A, which details the organizational 

composition, interaction with other ROL players, and substantive output that this judge advocate-led 

command has delivered. 

What? No Template Solution? 

The Handbook is not intended to serve as U.S. policy or military doctrine for rule of law operations. 

Written primarily for judge advocates, its scope and purpose are to provide the military attorney 

assistance in accomplishing the ROL mission. That said, it is hoped that others involved in ROL will 

find the Handbook helpful. 

The Handbook does not serve as a complete solution, but rather as a starting place and a supplement 

for other materials and, crucially, individual thought. When combined with resources such as the 

ROL courses available at TJAGLCS,8

 and the many and varied documents written by other agencies 

and organizations that are referenced in this Handbook, ROL judge advocates will quickly realize that 

there is a wealth of information available to them to draw upon. The difficulty they face is in 

knowing what to read, rather than in finding something to read, in an often busy pre-deployment 

timetable. Any judge advocate deploying in support of the current conflict should be familiar with 

Field Manual 3-24, Counterinsurgency (2006),9

 Field Manual 3-07, Stability Operations (2008),10 the 

USMC Small Wars Manual (1940),11 and the recently published US Joint Forces Command 

Handbook for Military Support to Rule of Law and Security Sector Reform,

12 as well as other, more 

judge advocate centric, publications such as the Operational Law Handbook (2010),13 and Field 

Manual 1-04, Legal Support to the Operational Army (2009).14 In addition, within the Army, we do 

well to remember that Civil Affairs units have often performed rule of law activities, and their 

doctrine discusses them in detail. As such, Field Manual 3-05.40, Civil Affairs Operations (2006)15 

and Joint Publication 3-57, Civil-Military Operations (2008)16 are also recommended reading for a 

judge advocate deploying to support ROL projects. 

Notwithstanding this wealth of reference material, no course, handbook, manual or “think tank” 

publication can provide judge advocates with a template solution for how to support the development 

of the ROL in any one particular deployed environment. Any reader who discovers such a template is 

invited to contact CLAMO so that it can be given pride of place in future editions of the Handbook. 

8

 TJAGLCS offers two residential programs, the one-week Rule of Law Short Course and a rule of law elective 

to its Graduate Course, as well as online training via JAG University, available at https://jag.ellc.learn.army.mil/
 

(last visited July 27, 2011).

9

 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY (15 Dec. 2006) [hereinafter FM 3-24].
 10 U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS (6 Oct. 2008) [hereinafter FM 3-07]. 11 U.S. MARINE CORPS, SMALL WARS MANUAL (1940). 12 U.S. JOINT FORCES COMMAND, UNIFIED ACTION HANDBOOK SERIES BOOK FIVE, MILITARY SUPPORT TO RULE OF
 

LAW AND SECURITY SECTOR REFORM (13 June 2011). 13 INT’L AND OPERATIONAL LAW DEP’T, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, 2011
 

OPERATIONAL LAW HANDBOOK (2010) [hereinafter 2010 OPLAW HANDBOOK]. 14 U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY (6 Oct. 2008) 

[hereinafter FM 3-07]. 

15 U.S. DEP’T OF ARMY, *FIELD MANUAL 3-05.40 (FM 41-10), CIVIL AFFAIRS OPERATIONS (29 Sep. 2006) 

[hereinafter FM 3-05.40].

16 CHAIRMAN, U.S. JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-57, CIVIL MILITARY OPERATIONS (8 Jul. 

2008) [hereinafter JP 3-57].
 

ix Preface 
 

Rule of Law Handbook - 2011 

While this Handbook, hopefully, provides food for thought and points to some resources, it is no 

substitute for agile innovation, intelligence, and resourcefulness. 

The intent is that the Handbook serves as an educational, introductory, resource for judge advocates 

who are preparing to practice in the field. If readers believe that the Handbook fails in meeting that 

intent, or that they can in any way contribute to its efficacy, they should not hesitate to contact 

CLAMO with their suggestions for improvement. 

Preface x 
 

 

 

 

Rule of Law Handbook - 2011 

CHAPTER 1 

THE RULE OF LAW: CONCEPTUAL CHALLENGES 

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

worse, the term is used differently in different contexts, and judge advocates (JAs) are likely to 

encounter “rule of law” in a variety of circumstances. Some JAs are engaged in ROL operations by 

helping to build courthouses and jails. Some “do” rule of law by helping to revise a host nation’s 

legal code. Some ROL coordinators are leading meetings among various coalition or host nation 

justice sector officials. Others are practicing ROL by processing detainees held by U.S. forces in a 

speedy and just manner or advising their commanders on host nation search and seizure law 

applicable to U.S. forces conducting security operations. JAs are engaged in ROL operations as Staff 

Judge Advocates (SJAs), Brigade Judge Advocates (BJAs), members of Civil Affairs teams, members 

of regimental, brigade, division, corps, multi-national-force, or geographic combatant command 

staffs, or as detailed to other U.S. or foreign agencies. ROL operations take place in a variety of 

operational environments, from active combat to approaching stable peace. 

Most JAs are currently engaged in ROL operations in the context of larger campaigns of 

counterinsurgency (COIN),1

 as in Iraq and Afghanistan. Rule of law operations are central to COIN,2 

but the principles underlying ROL operations apply regardless of the operational environment in 

which they occur. 

Moreover, almost any ROL effort in which a deployed JA participates will be an interagency one. As 

a matter of U.S. policy, the Department of State (DOS) is the lead agency in conducting most stability 

and reconstruction activities unless otherwise specified,3

 and virtually all stability operations will 

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

mind the broader participatory base of non-U.S. military partners, who have differing priorities and 

operating procedures when conducting ROL operations.4

 The military role in ROL capacity-building 

will end with the redeployment of U.S. forces, but the effort will likely continue with civilian 

agencies assuming an increasingly central role. In order for those follow-on efforts to be successful, 

civilian agencies need to be involved at the earliest stages. 

From an operational standpoint, any approach to actually implementing the ROL must take into 

account so many variables—cultural, economic, institutional, and operational—that it may seem 

futile to seek a single definition for the ROL or how it is to be achieved. Deployed JAs need to be 

flexible in not only their understanding of what the ROL is, but also in their approach to bringing it 

about in a particular context. But, when dealing with an operational imperative as deeply rooted in 

philosophy as “law,” it is impossible to separate the how of ROL from the what of ROL. 

Consequently, any understanding about ROL operations needs to start with a discussion about what 

exactly is the ROL. 

1

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

government to defeat insurgency.” U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 1-1 (15 

Dec. 2006) [hereinafter FM 3-24]. 

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

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

GOVERNMENT COUNTERINSURGENCY GUIDE 38 (Jan. 2009) (“Most countries affected by insurgency do not 

have robust, transparent and effective rule of law systems. Indeed, real or perceived inequalities in the 

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

3 Presidential Policy Directive - 1 (PPD-1). See also JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, JOINT 

OPERATIONS V-25 (22 Mar. 2010) [hereinafter JOINT PUB. 3-0] (explaining that, while other agencies may have 

the lead, US military forces must be prepared to carry out all aspects of stability operations). 4

 Ch. 2 provides detailed information about the key players that operate within the rule of law arena. 

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I. Describing the Rule of Law 

There is no widespread agreement on what exactly constitutes the ROL, 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 ROL and even more so regarding ROL operations. 

A. Definitions of the Rule of Law 

A first step in defining the ROL 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 ROL has 

essentially three purposes, as described by Richard Fallon: 

First the ROL should protect against anarchy and the Hobbesian war of all against all. Second, 

the ROL should allow people to plan their affairs with reasonable confidence that they can know 

in advance the legal consequences of various actions. Third, the ROL should guarantee against at 

least some types of official arbitrariness.5 

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

and reason. According to Prof. Fallon, the purpose of law is served by five “elements” of the ROL: 

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

conduct of their affairs. People must be able to understand the law and comply with it. 

(2) The second element of the ROL is efficacy. The law should actually guide people, at least for the 

most part. In Joseph Raz’s phrase, “people should be ruled by the law and obey it.” 

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

and coordinated action over time. 

(4) The fourth element of the ROL is the supremacy of legal authority. The law should rule officials, 

including judges, as well as ordinary citizens. 

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

enforce the law and should employ fair procedures.6 

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

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

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

ROL efforts within military intervention than others he did not emphasize (such as providing physical 

security). 

Another approach to the ROL is offered by Rachel Kleinfeld, who defines the concept in terms of five 

(different) “goals” of the ROL: 

• making the state abide by the law 

• ensuring equality before the law 

• supplying law and order 

• providing efficient and impartial justice 

• upholding human rights.7 

5 Richard H. Fallon, The Rule of Law as a Concept in International Discourse, 97 COLUM. L. REV. 1, 7-8 (1997)
 

(footnotes omitted).

6 Id. at 8-9 (footnotes omitted). 7

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

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

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Countless other individuals and agencies have offered their own definitions of the ROL, each 

reflecting their own institutional goals. Deployed JAs participating in ROL 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 ROL will be particularly salient, such as those emphasizing physical security. 

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

No matter what level of academic disagreement exists about a ROL definition, JAs need look no 

further8

 than the U.S. Army doctrinal definition: 

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

private, including the state itself, are accountable to laws that are publicly promulgated, equally 

enforced, and independently adjudicated, and which are consistent with international human 

rights principles.9 

This Army doctrinal definition is, to all intents and purposes, the same as the U.S. Government 

(USG) interagency definition.10 

The ROL principle can be broken down into seven effects:11 

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

•	 Individuals are secure in their persons and property 

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

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

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

•	 The state protects basic human rights and fundamental freedoms 

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

their daily lives.12 

8

 This is not meant to suggest that JAs should not be aware of definitions used by other organizations, for 

instance the UN’s understanding of ROL (See below, note 9), but that for their own purposes, there is a settled 

definition that should be utilized. 

9

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

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

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

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 application of the law, separation of powers, 

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

transparency. 

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

to MNC-I Operation Order 06-03.

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

SECTOR REFORM 4 (Feb. 2009) [hereinafter SECURITY SECTOR REFORM] (“Rule of Law is a principle under 

which all persons, institutions, and entities, public and private, including the state itself, are accountable to laws 

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

international human rights law”). 

11 The JFCOM Handbook for Military Support to Rule of Law and Security Sector Reform (13 Jun 2011) 

[Hereinafter “JFCOM Handbook”] refers to these “effects” as “indicators” and adds a further, useful 

consideration, being that “mechanisms are in place for the peaceful resolution of disputes.” 

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The complete realization of these effects represents an ideal. The seven effects of the ROL exist to 

greater or lesser degrees in different legal systems and are not intended as a checklist for a society 

that abides by the ROL.13 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 ROL 

to different degrees according to geography (the ROL may be stronger in some places than others), 

subject matter (the ROL 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 ROL than others). Because any meaningful definition of the ROL 

represents an ideal, JAs should view the success of ROL operations as a matter of the host nation’s 

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

The deployed captain or major who is this Handbook’s intended audience will hopefully be part of an 

operation that already has a definition of the ROL—one that has been adopted by policymakers. With 

that in mind, the effects and values represented by the list are ones that are likely to be present in any 

definition one is likely to encounter in a ROL operation. In this way, the seven effects can not only 

supply a definition of the ROL, they can complement one, providing more specific guidance about the 

effects JAs should be working to help bring about the ROL. See Chapter 5 on ROL metrics. 

What follows is a discussion of these seven effects. 

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

It is impossible to say that a society is governed by the ROL if compulsion is not the sole province of 

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

worst possible way. The alternative to state control over force is warlordism, which is a legally 

illegitimate form of security. 

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

possible for the state to delegate the use of force to subsidiary bodies such as state and local 

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

interests. Local security forces such as police, private security firms,14 and even less professional 

arrangements such as militias, can have a role in a recovering state’s security structure. But the state 

must be able to retain ultimate control over the use of force. Any local entity’s power must be 

effectively regulated by the state in order for it to be considered a legitimate exercise in state power. 

2. Individuals are Secure in Their Persons and Property 

In many ways, providing security is the ultimate purpose of any state. For a JA as part of a deployed 

force, providing security is going to be the first element in any ROL plan and, depending on the status 

of operations, it may be the only real contribution that U.S. forces can make to implement the ROL.15 

But it is an important contribution nevertheless. From an operational standpoint, without basic 

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

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

MIGHT MAKE RIGHTS?: BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS 78 (2006). 13 See STROMSETH, WIPPMAN & BROOKS, supra note 12, at 79; Fallon, supra note 5, at 9. Indeed, given the 

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

from them. Id. 14 See ch. 5, sec. VIII. on Non-State Security Providers. 15 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. 

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security, the ROL 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 ROL. Thus, the interconnected nature of ROL 

projects also requires that ROL efforts be tied to other reconstruction efforts in order to provide the 

kind of livable society in which the ROL can flourish.16 Time, however, is of the essence in 

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

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

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

major opposition.17 It is critical during that period to establish security, but the task of reconfiguring 

military forces and adjusting rules of engagement from a combat to security mission is a substantial 

one—it needs to be planned for and anticipated before the start of combat operations.18 

In some societies in which the ROL has been lacking, such as totalitarian dictatorships, the primary 

protection to be offered by the ROL may be protection from the state. 

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

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

state to be bound by rules if the rules themselves can be changed according to fiat or if they bear no 

relation to reason. The need for reasoned decision-making applies across executive, judicial, and 

legislative actors. 

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

its chosen end lest order be obtained through terror or intimidation, which would not be an exercise of 

the ROL. 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 ROL. Corruption, or 

“the abuse of public power for private gain,”19 is a prototypical example of the subversion of the 

ROL. 

Judges, too, must be bound by law—statute law or precedent—in their decision-making in order for a 

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

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

(assuming there are any to be faithful to) and must also seriously engage precedent to prevent their 

decisions from becoming arbitrary.20 That is not to say that there is no room for development in the 

law. The development of the common law over the past several centuries is an indication that judges 

can both adapt the law to new circumstances and introduce new methods of legal thinking without 

entirely abandoning precedent.21 Of course, there is likely to be little precedent in host nations in 

which U.S. military operations are taking place, and in some cases that precedent will be positively 

rejected as illegitimate. 

16 See STROMSETH, WIPPMAN & BROOKS, supra note 12, at 135.
 17 Id. at 145-47. 18 See FM 3-24, supra note 1, at 7-5 (“There is a clear difference between warfighting and policing. COIN
 

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

19 WORLD BANK, WORLD DEVELOPMENT REPORT 1997, at 102 (1997).
 20 Fallon, supra note 5, at 18-19 (describing the Legal Process approach to the rule of law). Of course, precedent 

does not figure as strongly in civil law systems, but past decisions of the same court are considered at least
 

persuasive, and those of higher courts are frequently considered to be binding. See ch. 5. sec. B. 21 Fallon, supra note 5, at 20-21.
 

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

including the giving of bribes (corruption) or the social status of a particular litigant. It thus forms an 

important element of the state’s protection of human rights and fundamental freedoms against certain 

forms of discrimination. 

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

legislatures will be political rather than legal, but even the exercise of political will has constraints. 

Legislatures must follow established procedures when making law, and most societies include 

substantive limitations on the power of legislatures, whether in written or unwritten constitutions 

(such as the United Kingdom’s). Identifying and establishing the substantive limits of legislative 

authority is likely to be one of the most difficult problems any ROL project faces. Although major 

ROL programs frequently start with written constitutions that impose substantive limitations on 

legislatures, the value of such limits to truly constrain the actions of legislatures is a matter of 

dispute.22 

4.	 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.23 Any society that has advanced beyond 

anarchy is likely to have such an agreement, which in countries that are the subject of U.S. military 

intervention, may be in the form of a newly authored constitution. Of course, in many countries, 

there will already be established legislatures and courts, and it will be important for anyone 

undertaking ROL 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 reasonably accessible so that citizens are able to understand and rely upon them.24 

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

which people can plan their affairs. It may be necessary to undertake many dramatic changes in a 

host nation’s legal system (such as adopting new criminal or civil codes), but the rate of change 

cannot be so fast that it is impossible for individuals to build a habit of reliance on the law. 

5.	 Individuals Have Meaningful Access to an Effective and Impartial Legal System 

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

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

enforcement institutions must exist, and the people must have practical access to those institutions. In 

many environments in which deployed JAs find themselves, such institutions may be completely 

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

corruption: racial, ethnic, religious, or gender bias; or simple inefficiency. Corruption, other 

illegitimate motives, or systematic inefficiency in the police force or the judiciary can prevent just 

laws from having any real effect on society, and in order for the state to be bound to its own laws, the 

judiciary must be able to exercise judgment independently of influence from the other branches. 

22 See generally A.E. Dick Howard, The Indeterminacy of Constitutions, 31 WAKE FOREST L. REV. 383 (1968). 23 H.L.A. HART, THE CONCEPT OF LAW 94-95 (2d ed. 1994) (describing the “rule of recognition” that societies 

use to identify law). 

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

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

therefore usually applied through non-legal institutions. See generally ROBERT C. ELLICKSON, ORDER WITHOUT 

LAW: HOW NEIGHBORS SETTLE DISPUTES (1991). 

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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 ROL in two 

opposite ways: either there is no effective correctional system and convicts are routinely released or 

prisoners are treated in ways inconsistent with human rights protections. A society cannot be said to 

be governed by the ROL if criminals are not adequately punished or if the state fails to treat those 

subject to its complete control in a humane, rational manner. 

6. Human Rights and Fundamental Freedoms are Protected by the State 

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

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

incarcerated offenders without corruption or bias. Most would agree it nevertheless would fail to 

qualify as applying the ROL if the law applied was merely the fiat of a dictator or of a ruling majority 

acting without regard to human rights and fundamental freedoms. In the twenty-first century, it 

would be hard to find anyone who would acknowledge the meaningful existence of the rule of a law 

in a society in which individuals (or an entire minority group) were considered personal property to 

be openly bought and sold at market. It is meaningless to say that the law protects individuals 

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

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

Declaration of Human Rights (UDHR)25 and the treaties to which the country is a party,26 such as the 

International Covenant on Civil and Political Rights (ICCPR).27 There is disagreement, however, on 

exactly what rights the law must protect to be considered a society governed by the ROL. Some, 

especially those active in the ROL community, define the most important obligation as one of equal 

treatment regardless of gender or economic, racial, or religious status.28 While most would agree that 

equality is an important value, many disagree on exactly what forms of equality are necessary to the 

ROL. In many societies, unequal treatment is a cultural fact that there is no popular will to change. 

Others define the necessary rights substantively—for instance, the right to security in one’s person29 

or the right to free speech30—but doing so is unlikely to avoid disputes over which rights are essential 

to establishing the ROL. U.S. JAs need look no further than our own, ongoing debates over 

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

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

Nevertheless, the deployed JA who works on ROL projects needs to keep in mind that protection of 

human rights and fundamental freedoms is an important component of the ROL and that different 

participants in the ROL enterprise are likely to have very different understandings of the content of 

those rights and their relative importance. It is important for deploying JAs to research the human 

rights treaty obligations of the host nation, becoming familiar both with the underlying obligation 

contained in the treaty, any reservations or understandings that country made to it, whether other 

states have objected,31 and the likely USG views of the obligation, before attempting to undertake a 

ROL project. If the country has not become party to the ICCPR, the UDHR should serve as the 

25 Universal Declaration of Human Rights [hereinafter UDHR], G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 

U.N. Doc. A/810 (Dec. 12, 1948). 26 See FM 3-07, supra note 9, at 1-7.
 27 Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/English/law/ccpr.htm (last visited June 

9, 2011). 

28 UDHR art. 7; Kleinfeld, supra note 7, at 38.
 29 U.S. CONST. amends. V, XIV, sec. 5; UDHR art. 3.
 30 U.S. CONST. amend. I; UDHR art. 19. 31 A full list of human rights treaties to which a country is a party and that country’s reservations and
 

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

http://www2.ohchr.org/English/law/ (last visited June 9, 2011).
 

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guiding document for JAs.32 It is also useful to understand the values of other partners and those of 

the host nation’s culture. Certain human rights abuses by host nations may trigger restrictions on 

U.S. funding.33 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 ROL project. 

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

the Conduct of Their Daily Lives 

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

through threat.34 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.35 A state can only be truly said to be governed by the 

ROL if the state, and its law, is viewed as legitimate by the populace—if the law is internalized by the 

people.36 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 resistance37 (and fuel 

insurgency).38 It is not necessary for the people to internalize every legal rule in order to say that the 

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

a portion of the population disagrees with a particular legal outcome (legislative or judicial) but 

nevertheless complies with it because of their dedication to the institution that produced it—when it is 

the source of the law, not its content, that provides its justification.39 Again, there are strong 

connections between this element and others, specifically the state’s willingness to bind itself to the 

ROL. It would be unreasonable, for instance, to expect a populace to accept the decisions of the 

judiciary or the legislature if the executive ignores them. 

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

Most dispute resolution in any society occurs “in the shadow of the law,”40 which requires that 

members of the society have internalized the society’s legal rules and are comfortable using them to 

conduct their affairs. While a functioning court system, for instance, is one level of success for a 

ROL project, a society that truly lives under the ROL is one in which individuals themselves resolve 

disputes in ways consistent with the law even without invoking the judicial system.41 

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

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

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

33 See, e.g., Leahy Amendment, Pub. L. No. 104-208, 110 Stat. 3009-133 (1996). 34 HART, supra note 23, at 22-24. 35 Id. at 54-58. 36 See US AGENCY FOR INTERNATIONAL DEVELOPMENT, GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE 

RULE OF LAW STRATEGIC FRAMEWORK 7 (2008); STROMSETH, WIPPMAN & BROOKS, supra note 10, at 75-76.
 37 See JOINT PUB. 3-0, supra note 3, at V-26.
 38 See FM 3-24, supra note 1, at 1-27.
 39 See HART, supra note 23, at 57-58.
 40 STROMSETH, WIPPMAN & BROOKS, supra note 12, at 78. 41 Id. at 78-79. 

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

likely to take many years, if not decades, to develop. Again, JAs 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 JA is unlikely to witness the full social acceptance of a 

legal system in a post-conflict country, but even local acceptance of a single court, police force, or 

town council is a major step on the road to achieving the ROL. Judge advocates should conduct ROL 

projects with this end in mind. 

C. Formalist v. Substantive Conceptions of the Rule of Law 

Identifying conditions necessary for a society to be said to be subject to the ROL 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 ROL, a formalist one, that emphasizes the 

procedures for making and enforcing law and the structure of the nation’s legal system, or a 

substantive one, in which certain rights are protected.42 Using the list of ROL values described 

above, the transparency and stability of the law is more closely a formalist concern, while the 

protection of human rights and fundamental freedoms is a substantive one. While it is important to 

recognize that legal systems can be described both along formalist and substantive lines, the two are 

not mutually exclusive (for instance, protection against arbitrary state action). One can be committed 

to both formalist and substantive requirements for the ROL. Indeed it is difficult to find someone 

with a strong substantive approach to ROL who would not also insist that the state in question follow 

certain procedures in making and enforcing law. Thus, one set of authors on the subject distinguish 

between “minimalist” approaches that may be merely formalist and “maximalist” approaches that 

include both formalist and relatively strong substantive components.43 

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

other, but the degree to which any ROL project’s goal is either formalist or substantive will vastly 

affect how the project is carried out (and by whom) and will determine in many regards what 

strategies will be necessary to ensure the successful completion of the project. As JAs consider ROL 

projects, the formalist/substantive distinction needs to remain at the forefront of their thinking. 

As one might guess, ROL projects with formalist goals are, all other things being 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 ROL than there is regarding the substantive criteria.44 Formalist projects are also much less likely 

to upset established political power relationships, which mean 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.45 Similarly, formalist projects are 

frequently less likely to threaten the cultural identity of the host nation and its population than 

substantive projects.46 While formalist projects are less likely to result in attack from both the local 

and international community as being culturally imperialist, it is unlikely in today’s environment that 

purely formalist projects are likely to receive the kind of broad international support they require if 

42 See Paul Craig, Formalist and Substantive Conceptions of the Rule of Law: An Analytical Framework, 1997
 

PUB. L. 467.
 43 STROMSETH, WIPPMAN & BROOKS, supra note 12, at 70-71. 44 Robert Summers, The Principles of the Rule of Law, 74 NOTRE DAME L. REV. 1691, 1709-10 (1991).
 45 Kleinfeld, supra note 7, at 38. 46 See id. at 38 (citing the example of gender equality as a threat to some conceptions of Islamic culture). 

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they completely ignore substantive rights,47 and U.S. law may place explicit limits on assistance to 

host nations guilty of human rights abuses. These models do not exist 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 host nation legal system. 

II. Rule of Law Operations 

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

program, or planned action whose specific goal is to help a host nation move toward the realization of 

one or more of the seven effects previously described—as there are definitions of the ROL. The 

nature of the ROL operations that JAs are part of will vary based on the nature of the operational 

environment. In an area subject to active combat, for instance, the ROL 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 ROL. The kind of all-consuming occupations that the U.S. undertook in 

Germany and Japan following World War II are not likely models for future campaigns, suggesting 

an approach that is more openly cooperative with the host nation and its population.48 The status of 

the host nation also affects the nature of the projects to be undertaken. There may be illegitimate laws 

that need to be changed, written laws that are not being followed, or even no laws at all regarding 

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

remade in order to purge corrupt or illegitimate elements, such as the program of de-Baathification 

that followed the major combat phase of Operation Iraqi Freedom (OIF). In many nations, many 

industries are traditionally public, meaning that ROL values are implicated in the operation of those 

industries. 

Moreover, ROL operations can take very different forms. Many ROL operations are designed to 

improve the capacity of host nation government or social institutions in realizing the ROL. Such 

“capacity-building” projects have traditionally been performed by civilian organizations of all kinds, 

and many necessarily so as a matter of U.S. law, which limits the U.S. military’s role in providing 

assistance to many foreign government institutions.49 But ROL operations can also focus on the 

effects that U.S. forces themselves have on the state of the ROL in a host nation. Improving the 

detention policies followed by U.S. forces, such as a preference for relying on the host nation criminal 

justice system rather than U.S. military “security detention,” can go a long way toward a host nation’s 

realization of the seven ROL effects. Consequently, JAs concerned with the ROL (as all lawyers 

should be) must necessarily concern themselves not only with the operation of the host nation’s legal 

47 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).

48 STROMSETH, WIPPMAN & BROOKS, supra note 12, at 3. 

49 One form of rule of law operation directed toward reforming the institutions that provide security is “security 

sector reform.” “Security Sector Reform” is 

the set of policies, plans, programs, and activities that a government undertakes to improve the way it 

provides safety, security, and justice. The overall objective is to provide these services in a way that 

promotes an effective and legitimate public service that is transparent, accountable to civilian authority, and 

responsive to the needs of the public. From a donor perspective, SSR is an umbrella term that might include 

integrated activities in support of: defense and armed forces reform; civilian management and oversight; 

justice; police; corrections; intelligence reform; national security planning and strategy support; border 

management; disarmament, demobilization and reintegration (DDR); and/or reduction of armed violence. 

SECURITY SECTOR REFORM, supra note 10, at 3. 

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institutions, but with the conduct of the operational force. Many types of projects, both capacitybuilding and operational, fall under the umbrella of “ROL,” and they are as varied as the problems 

they are intended to address. 

There are countless aspects of ROL operations, but this Handbook emphasizes three that are 

particularly salient to deploying JAs: the role of ROL operations within full spectrum operations, the 

operational impact of ROL operations, and the need to adopt an approach to the ROL that focuses on 

effects rather than institutions. 

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

Operations 

Joint Publication 3-0, Joint Operations, breaks operations into three categories: offensive operations, 

defensive operations, and stability operations. Any major campaign will require a combination of all 

three types of operations, to be carried out in appropriate balance during the different phases of the 

campaign.50 Army doctrine refers to the mix of offensive, defensive, and stability operations as “full 

spectrum operations.”51 

Stability operations, in turn, are “various military missions, tasks, and activities conducted outside the 

United States in coordination with other instruments of national power to maintain or reestablish a 

safe and secure environment, provide essential governmental services, emergency infrastructure 

reconstruction, and humanitarian relief.”52 Although stability operations have particular emphasis 

during the later phases of the campaign, they will take place even during the initial combat phase,53 

and they need to be planned for as part of the overall campaign. The termination of a major campaign 

cannot take place until local civil authorities are in a position to administer the host nation,54 and 

stability operations are critical to the final two phases of the campaign (Stabilize and Enable Civil 

Authority)55 leading to the campaign’s termination and the redeployment of U.S. forces.56 Stability 

operations are also a critical component of counterinsurgency.57 

DODI 3000.05 explains that stability operations are “a core U.S. military mission that the DOD shall 

be prepared to conduct with proficiency equivalent to combat operations.” But it also emphasizes 

DOD’s need to support stability operations led by other USG agencies, “foreign governments and 

security forces, international governmental organizations or when otherwise directed.” Of note, 

although recognizing the possibility that DOD may be required to lead stability operations activities 

to “establish civil security and civil control and provide essential services, repair and protect critical 

50 JOINT PUB. 3-0, supra note 3, at V-1 - V-2.
 51 U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS 3-1 (27 Feb. 2008). In addition, full spectrum
 

operations include “civil support operations,” which is the domestic counterpart to stability operations, which
 

are performed overseas.

52 JOINT PUB. 3-0, supra note 3, at GL-26. See also U.S. DEP’T OF DEFENSE, INSTR. 3000.05, STABILITY
 

OPERATIONS, (16 Sept. 2009) [hereinafter DODI 3000.05], at 1.
 53 JOINT PUB. 3-0, supra note 3, at V-15 - V-16.
 54 Id. at IV-29 - IV-30. 55 As a matter of doctrine, joint operations have six phases: Shape, Deter, Seize the Initiative, Dominate, 

Stabilize, and Enable Civil Authority. Id. at IV-26-29. 56 See id. at V-2, figure V-1 (illustrating the balance of offensive, defensive, and stability operations in the 

different phases of major campaigns). See also id. at IV-7 (“To facilitate development of effective termination 

criteria, it must be understood that US forces must follow through in not only the ‘dominate’ phase, but also the 

‘stabilize’ and ‘enable civil authority’ phases to achieve the leverage sufficient to impose a lasting solution.”); 

id. at xii (“Stability operations will be required to enable legitimate civil authority and attain the national 

strategic end plan. Termination of operations must be considered from the outset of planning.”)

57 FM 3-24, supra note 1, at 2-5 (15 Dec. 2006) (“Most valuable to long-term success in winning the support of 

the populace are the contributions land forces make by conducting stability operations”). 

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infrastructure, and deliver humanitarian assistance,” it should do so with a view to transition that lead 

responsibility to other entities when feasible. This policy demands that ROL project transition 

planning must be included in any military ROL line of operations. In performing that lead role, the 

DOD will operate within “U.S. Government, and as appropriate, international structures for managing 

civil-military operations “and will seek to enable the deployment and utilization of “appropriate 

civilian capabilities.”58 

Many ROL operations will take place as components of stability operations, helping to establish (or 

reestablish) the host nation’s capacity to maintain the ROL. Such projects may include reconstruction 

of the physical infrastructure of the host nation’s legal system, providing training programs for host 

nation justice sector personnel, or simply serving as a coordinator between the many, many 

participants in such projects. Conducting ROL operations within the context of stability operations 

requires that any ROL effort be coordinated with other activities (such as security and the restoration 

of civilian infrastructure and essential services)59 and with other agencies. Within the Army, Civil 

Affairs (CA) forces have a particular expertise in many aspects of stability operations, and JAs should 

seek out CA personnel (who are frequently attached to both Army and Marine Corps units) when 

tasked to conduct ROL operations as part of stability operations.60 

DODI 3000.05 clearly recognizes that “[I]ntegrated civilian and military efforts are essential to the 

conduct of successful stability operations.” To this end the DOD policy directs that DOD shall: 

“Support the stability operations planning efforts of other U.S. Government agencies; Collaborate 

with other U.S. Government agencies and with foreign governments and security forces, international 

governmental organizations, nongovernmental organizations, and private sector firms as appropriate 

to plan, prepare for, and conduct stability operations”;61 and “continue to support the development, 

implementation, and operations of civil-military teams and related efforts aimed at unity of effort in 

rebuilding basic infrastructure; developing local governance structures; fostering security, economic 

stability, and development; and building indigenous capacity for such tasks.”62 Thus, JAs can expect 

a particularly close working relationship with a multitude of not only U.S., but also coalition, nongovernmental, and indigenous participants in ROL projects. 

Notwithstanding this Stability Operations emphasis, the ROL plays an important role across the full 

spectrum of operations. The objective of any campaign is to leave in place a “legitimate civil 

authority”63 within the host nation. “Legitimacy is frequently a decisive element” in joint 

58 DODI 3000.05, supra note 52, at 2.
 59 See STROMSETH, WIPPMAN & BROOKS, supra note 12, at 9; JOINT PUB. 3-0, supra note 9, at JOINT PUB. 3-0,
 

supra note 3, at V-1 (“To reach the national strategic end state and conclude the operation/campaign 

successfully, JFCs must integrate and synchronize stability operations with other operations (offense and 

defense) within each major operation or campaign phase.”); FM 3-24, supra note 1, at 5-2 (the second stage of 

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

development”). 

60 See JOINT CHIEFS OF STAFF, JOINT PUB. 3-57, CIVIL-MILITARY OPERATIONS (8 July 2008); U.S. DEP’T OF 

ARMY, FM 3-05.40, CIVIL AFFAIRS OPERATIONS (29 Sep. 2006).
 61 DODI 3000.05, supra note 52, at 2.
 62 DODI. 3000.05, supra note 52, at para. 4.3. See also JOINT PUB. 3-0, supra note 3, at V-24 (“US military 

forces should be prepared to lead the activities necessary to [secure and safeguard the populace, reestablishing 

civil law and order, protect or rebuild key infrastructure, and restore public services] when indigenous civil, 

USG, multinational or international capacity does not exist or is incapable of assuming responsibility. Once 

legitimate civil authority is prepared to conduct such tasks, US military forces may support such activities as 

required/necessary”). 

62 DODI 3000.05, supra note 52, at 2-3. 63 JOINT PUB. 3-0, supra note 3, at IV-29 - IV-30 (emphasis added).
 

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operations.64 Similarly, in COIN, “victory is achieved when the populace consents to the 

government’s legitimacy and stops actively and passively supporting the insurgency.”65 In this sense, 

for U.S. forces engaged in COIN, the most important of the seven effects described above is the last 

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

their daily lives. That legitimacy is the desired end state for any campaign, but it is the only real 

objective in a counterinsurgency. 

Because of the special relationship between the ROL and the legitimate exercise of force, actions that 

contribute to the realization of the ROL not only include formal projects to rebuild host nation 

capacity, but also actions to assure that U.S., coalition, and host nation security forces themselves 

operate in ways that encourage respect for the ROL while engaged in the full spectrum of operations, 

including offensive and defensive operations. Field Manual 3-24 suggests that: 

Efforts to build a legitimate government through illegitimate actions are self-defeating, even 

against insurgents who conceal themselves amid noncombatants and flout the law. Moreover, 

participation in COIN operations by U.S. forces must follow United States law, including 

domestic laws, treaties to which the United States is party, and certain [host nation (HN)] laws. 

Any human rights abuses or legal violations committed by U.S. forces quickly become known 

throughout the local populace and eventually around the world. Illegitimate actions undermine 

both long- and short-term COIN efforts.66 

Legitimacy is the watchword of COIN, which means that every operation undertaken during a 

counterinsurgency—offensive, defensive, or stability—has a ROL component. Any act that the 

populace considers to be illegitimate (such as the mistreatment of detainees or other criminal acts by 

Soldiers acting in either their individual or official capacity, even as seemingly insignificant as the 

failure to obey traffic laws) is likely to discourage the populace from viewing legal rules as binding. 

A command’s ability to establish the ROL within its area of control is dependent in large part on its 

own compliance with legal rules restricting Soldiers’ (and the command’s own) discretion and 

protecting the population from the seemingly arbitrary use of force. 

Judge advocates have a long tradition of advising commanders on the legal aspects of conducting 

operations, which puts them in a prime position to inject the concept of legitimacy into the full 

spectrum of operations undertaken during a campaign. That advice may be particularly important as 

the conflict progresses and operations change over time from an early stage high-intensity conflict (as 

during a forced entry) to a long-term counterinsurgency, and from resembling military conflict to 

more closely resembling law enforcement.67 

As U.S. forces work closely with coalition and host nation forces, the role of JAs as advisors on 

matters of legitimacy may expand to include helping to assure that host nation forces also employ 

force in legitimate ways. For instance, JAs can help to define rules for the use of force by joint 

U.S./host nation operations—which are likely to eventually develop into host nation-only 

operations—that comply with U.S., international, and host nation law; help to develop training 

programs in the legitimate use of force by host nation security forces; and mentor host nation 

personnel in the legitimate use of force. Throughout the period of U.S. military involvement, JAs 

will further the ROL mission by advising commanders on the legal restrictions on the use of force by 

U.S. forces, thereby setting the appropriate example for host nation forces. 

64 Id., at A-4 (“Committed forces must sustain the legitimacy of the operation and of the host government, 

where applicable.”). 

65 FM 3-24, supra note 1, at 1-3. 66 Id. at 1-24. 67 See FM 3-24, supra note 1, at 7-5 (“There is a clear difference between warfighting and policing. COIN
 

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

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B. Operational Impact 

Notwithstanding the long term benefits that the conduct of legitimate operations delivers, there is no 

denying that there may be short-term costs. It is imperative that JAs explain to their commanders that 

any ROL 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, ROL operations may impact traditional operations in other ways as well. 

U.S. forces may need to alter their tactical stance in order to convey to the population that they are 

operating according to law rather than merely exercising control through the threat of force. As major 

combat operations end, combat forces may need to adopt different and more engaging tactics as they 

transition into their role as a stabilizing force. Recall Joint Pub 3-0’s phases of joint operations: while 

Dominate is an important aspect of combat operations, transitioning into the next phases, Stabilize 

and ultimately Enable Civil Authorities, include a reduction in dominating activities.68 Recognition 

of the role of force in the long-term resolution of conflicts is reflected in the addition of three new 

Principles of Joint Operations in 2006: Restraint, Perseverance, and, of course, Legitimacy.

69 When 

conducting stability operations generally, and ROL operations in particular, the relationship between 

commanders and the local population (and other ROL participants) must be one of cooperation and 

persuasion rather than commanding and directing.70 

Because ROL operations are inherently cooperative enterprises, ROL practitioners must have 

flexibility not only as to possible end states, but also as to the means they undertake to reach those 

end states. Moreover, because the governed have the final say over the nature of the law that rules 

them, the means for accomplishing the ROL must be ones that the local population views as 

legitimate. The means, as well as the goal, of ROL operations must be meaningful to those who 

would be governed by the legal system in question. That requirement applies to both formal projects 

undertaken as part of stability operations (for example, it would be illegitimate for a commander to 

unilaterally appoint host nation judges) and to the conduct of offensive and defensive operations by 

coalition and host nation forces (for example, the use of warrantless “cordon and search” methods). 

Injecting legitimacy into operations is likely to substantially limit commanders’ operational 

flexibility. 

It is critical for JAs to establish up front that efforts to inculcate the ROL through deed rather than 

word are likely to have a very real operational cost in the form of both reduced mission capability and 

potentially even in the form of casualties.71 The criminals who go free every day in the U.S. 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, U.S. 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.72 

Moreover, the operational costs of both operating according to pre-established and well-known rules 

and of taking a protective rather than combative operational stance are likely to be incurred in the 

short term, while the benefits of those efforts are likely to be realized only over the very long term. It 

68 JOINT PUB. 3-0, supra note 3, at IV-26—IV-30 and fig. IV-6. See also STROMSETH, WIPPMAN & BROOKS, 

supra note 10, at 136 (“Winning wars and maintaining order are two very different tasks”).
 69 JOINT PUB. 3-0, supra note 3, at II-2xii. 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 12, at 135 (“[S]ecurity cannot depend solely or even primarily on coercion.”).
 70 LCDR Vasilios Tasikas, Developing the Rule of Law in Afghanistan, The Need for a New Strategic 

Paradigm, ARMY LAW. 45 (July 2007). 71 See JOINT PUB. 3-0, supra note 3, at A-4 (“Security actions must be balanced with legitimacy concerns.”). 72 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. 

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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 JAs to educate their commanders about the 

importance of the ROL mission and to prepare them for the costs of undertaking that mission. 

Commanders need to know these operations, like any other, may cost Soldiers’ lives and that, while 

loss of life is always tragic, it is no more or less acceptable as part of ROL operations than it is as part 

of a high-intensity conflict. 

Rule of law operations are long-term ones, and the ROL is not free, either financially or operationally. 

The worst thing commanders can do for the ROL is to commit themselves to an approach that they 

are not prepared to maintain and eventually wind up reversing, an act that is likely to be viewed by 

the populace as an arbitrary (and consequently lawless) one. 

C. The Importance of Focusing on Effects 

The preference in all operations is to set goals based on tangible, measurable criteria. 73 In ROL 

projects, temptation to set measurable goals pushes ROL 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 ROL projects should ultimately focus on 

bringing about particular effects74 along the path towards a specific end-state.75 Thus, it is critical to 

keep in mind what values are represented by the ROL so that those values, not some intermediate, 

institutionally focused objective, drive the ROL effort.76 A nation with beautifully constructed 

courthouses may nevertheless fail to achieve the ROL if the judges in those courthouses are either 

arbitrary or corrupt. The same is true of a well-established police or correctional force that regularly 

violates citizens’ and prisoners’ human rights. 

Of course, metrics must be “measurable,” and some institutional improvements can point to 

underlying effects. For instance, attendance and graduation from training programs by the judiciary 

or police may indicate that their superiors recognize the value of the content of the program. 

Nevertheless, by failing to recognize that institutional improvements are only valuable if they are 

connected to an effect, some institutional projects may actually thwart the long-term adoption of the 

ROL in a society. It may very well be 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 ROL 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 ROL projects and the relative 

inability of armed forces and other ROL participants to actually bring about the ROL. Although 

adequate resources, security, and thoughtful planning and execution may be necessary for ROL 

projects, they are not sufficient for establishing the ROL. In the end, the ROL 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 

73 See ch. 5, Planning, Assessment and Metrics. 74 “An effect is a physical and/or behavioral state of a system that results from an action, a set of actions, or
 

another effect.” JOINT CHIEFS OF STAFF, JOINT PUB. 5-0, JOINT OPERATIONS PLANNING III-12 (26 Dec. 2006)
 

(describing the relative role of objectives, effects, and end states in military planning). 75 Id. at 6 (“A clearly defined military end state complements and supports attaining the specified termination
 

criteria and objectives associated with other instruments of national power.”). 76 Kleinfeld, supra note 7, at 61-62.
 

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never successfully imposed at the end of a gun, merely applying greater resources or asserting greater 

control cannot lead to success, and frequently may hinder it. 

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CHAPTER 2 

KEY PLAYERS IN RULE OF LAW 

Rule of law missions typically involve joint,1 interagency, intergovernmental and multi-national 

(JIIM) participation. Involving so many participants necessitates “trade-offs between unity of 

command and broad burden-sharing. Both are desirable, but each can be achieved only at some 

expense to the other.”2

 ROL operations are not, and are unlikely to ever be, an exclusively military 

activity. Other U.S. agencies, international and non-governmental organizations, coalition forces, 

private sector partners, and host nation agencies, will all, to a greater or lesser degree, help carry the 

ROL burden. However, even in an environment in which security is not a critical issue, the military 

can still play an effective and important role in ROL activities, for example, by way of its support to 

Security Sector Reform (SSR) programs. 

Success or, more realistically, “progress” in the ROL arena derives from the pursuit of a common 

strategic plan by all the relevant players within it. A common strategy sets the rules, establishes roles 

and missions, helps manage expectations, obtains early “buy in,” and holds those involved to account. 

It is the focused efforts of all participants, each of whom brings a unique perspective and skill set, 

which is critical for success. Recognizing the value added, and understanding the roles, 

responsibilities, strengths and constraints, of the other members of the team is crucial. That 

recognition, and understanding, will help foster and maintain strong professional and interpersonal 

relationships, which, in turn will inevitably, help enhance communication and cooperation. 

When identifying the key players in any particular ROL mission, practitioners must identify, and 

engage early with, relevant host nation ROL institutions (both national and local) in order that they 

own, and are responsible for, ROL reform efforts. That said, because each ROL 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. Instead, this Chapter describes the key USG 

agencies and departments, institutions and international actors that typically operate in the ROL 

environment.3 

I. U.S. Policy for Conflict Prevention and Response: Interagency 

Coordination and Structure 

Joint Publication 3-08 defines “Interagency Coordination” as the “interaction that occurs between 

agencies of the USG, including the DOD, for the purpose of accomplishing an objective.”4

 Several 

decades of civilian-military operations have resulted in U.S. government leadership directing 

1

 JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND 

ASSOCIATED TERMS 283 (as amended through 30 May 2008) (defining “joint” as: “activities, operations, 

organizations, etc., in which elements of two or more Military Departments participate”). 

2

 JAMES DOBBINS, ET AL., THE BEGINNER’S GUIDE TO NATION-BUILDING 6 (2007). 3

 JA ROL practitioners should understand that the medium for communication with the relevant host nation 

officials will be a matter for the overall USG strategy and policy guidance to determine. JAs should be mindful 

of official channels when dealing with other agency officials and representatives. Guidance must be sought 

through the lead ROL agency, military command channels, and senior DOD ROL representatives on the ground 

when attempting to coordinate with other agencies, both USG and otherwise. 

4

 JOINT CHIEFS OF STAFF, JOINT PUB. 3-08, INTERAGENCY, INTERGOVERNMENTAL ORGANIZATION, AND 

NONGOVERNMENTAL ORGANIZATION COORDINATION DURING JOINT OPERATIONS I-1 (17 Mar. 2006). 

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executive branch agencies to accomplish that objective more effectively, by improving both the 

planning and execution of conflict prevention and response operations. 

Early directives issued for this purpose included President George W. Bush’s National Security 

Presidential Directive 44 (NSPD-44) and Department of Defense Directive 3000.055 (which was later 

reissued as Department of Defense Instruction 3000.05 (DODI 3000.05)).6

 The current overarching 

framework for interagency coordination has been established by President Barack H. Obama in 

Presidential Policy Directive - 1 (PPD-1).7

 PPD-1 sets out the National Security Council (NSC) 

structure, establishes the general framework for interagency coordination, and continues to be the 

coordinating framework used for operations in Iraq and Afghanistan. The 2010 Quadrennial 

Diplomacy and Development Review8

 (QDDR) details requirements for the U.S. Department of State 

and the U.S. Agency for International Development to improve their ability to anticipate and address 

the crises and conflicts associated with state weakness, instability, and disasters, and to support 

stability and transition following conflict. Chapter 4 of the QDDR identifies recommendations for the 

Department of State and USAID to prevent and respond to crisis, conflict and instability, including, 

through building a long-term foundation for peace under law, security and justice sector reform. 

Planning and executing interagency operations involving many federal departments and agencies is a 

complicated and difficult undertaking in any environment. This is, in part, due to the manner in 

which USG agencies are organized to manage specific, and often narrow, instruments of national 

power. These separate agencies tend to operate in legislatively-created stovepipes (and funding 

streams). They may also be constrained, by the same laws, from performing functions that fall 

outside of their core missions. In turn, this has led them to develop their own agency-specific goals, 

priorities, terminology, and bureaucratic cultures that reflect and support those missions. 

The pursuit of common and coherent policies among the USG interagency community is a recurrent 

challenge in government. Notwithstanding that, when political leaders call upon disparate parts of the 

USG to plan and execute a specific mission, the governmental entities involved must be able to work 

together and effectively, whether within a formal or informal interagency framework. Within the 

conflict prevention, transition, and stabilization context, interagency coordination has become 

increasingly important. As a result, USG agencies have moved from a largely informal framework to 

a more formalized interagency structure. The creation of the Office of the Coordinator for 

Reconstruction and Stabilization (S/CRS) was a tangible example of just such a structure. 

Understanding the relevant framework for interagency coordination in conflict prevention and 

response operations (to include Stability Operations) is critical for a JA to be able to advise the 

Commander effectively and accurately about, and execute, ROL related lines of operation.9 As USG 

5

 U.S. DEP’T OF DEFENSE DIRECTIVE 3000.05, MILITARY SUPPORT FOR STABILITY, SECURITY, TRANSITION AND 

RECONSTRUCTION (SSTR) OPERATIONS, (November 28, 2005) [hereinafter DODD 3000.05]. 6

 U.S. DEP’T OF DEFENSE, INSTR. 3000.05, STABILITY OPERATIONS, 2-3 (16 Sept. 2009) [hereinafter DODI 

3000.05].

7

 Presidential Policy Directive – 1, 13 February 2009 [hereinafter PPD-1]. 8 The 2010 Quadrennial Diplomacy and Development Review (available at: http://www.state.gov/s/dmr/qddr/ ) 

[hereinafter QDDR] identifies key capabilities for the U.S. Department of State and the United States Agency 

for International Development to achieve their mission. The U.S. Congress has encouraged interagency, postconflict efforts by creating the Civilian Stabilization Initiative and appropriating funds to support, maintain, and 

deploy a Civilian Response Corps to conduct reconstruction and stabilization operations designed to prevent or 

respond to conflict in foreign countries, see: Consolidated Appropriations Act, 2010, Public Law 111-117, 

December 16, 2009. 

9

 While this Handbook is primarily aimed at the JA ROL practitioner, its readership is not limited to that 

audience. Rather than plough through the following pages which describe, perhaps, their own agencies, civilian 

practitioners who find themselves about to be thrust into an alien military environment could do no better than 

read Colonel (Ret’d) Gary Anderson’s The Closers Part VI Dealing with the US Military (one of a series of 

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agencies other than DOD usually have the lead on ROL programs, appreciating the utility of an 

effective interagency framework, and understanding the national policy aims within which it works, 

can only enhance the efficacy of the JAs role in implementing a ROL program. Working effectively 

with interagency partners delivers a more economic use of resources, increases legitimacy with the 

indigenous population, and optimizes prospects for stability and security. And as we have seen in 

Chapter 2, it is also directed by DODI 3000.05.10 A tangible example of the desire to improve 

interagency ROL coordination is the Congress approved $0.5 million interagency training program 

authorized in the 2010 National Defense Authorization Act. Following a competitive bidding 

process, this new ROL training initiative is now being led by the Office of The Judge Advocate 

General (OTJAG) in partnership with the University of South Carolina’s ROL Collaborative (USC 

ROLC). 

A. The Civilian Approach to Conflict Prevention and Response 

Editor’s Note: This section is, in parts, forward looking, reflecting aspirational changes 

contemplated in the QDDR, rather than the status quo. 

At the highest policy level, the National Security Council Interagency Policy Committees 

(NSC/IPCs) manage the development and implementation of national security policies by the 

multiple agencies of the USG. These committees are stood up to address specific issues or crisis and 

are the main day-to-day forums for interagency coordination of national security policy. Direction 

starts with committees under the leadership of principals and their deputies from the Executive 

Agencies and guidance flows to the reconstruction and stabilization interagency policy committee 

(IPC) of the NSC. The IPC is the day-to-day forum for interagency coordination of national policy 

on reconstruction and stabilization. National Security Staff provide overall policy leadership and 

coordinate the interagency in responding to major crises. 

The QDDR sets out that the Department of State and USAID will adopt a lead agency approach 

during crisis situations whereby, “[U]nder the guidance of the National Security Staff, the State 

Department will lead for operations responding to political and security crises, while USAID will lead 

for operations in response to humanitarian crises resulting from large-scale natural or industrial 

disasters, famines, disease outbreaks, and other natural phenomena.”11 

The critical role of both USAID and State is recognized in the QDDR, together with the fact that, 

while the focus of State and USAID’s roles is different, their capabilities often overlap. The 

challenge being, of course, to ensure that the efforts of both are integrated, not replicated. To 

illustrate this, the QDDR provides the example that, “when State leads operations in response to a 

political or security crisis, it will provide direction on objectives and resources to be deployed, but 

USAID will retain operational control over how to deploy its resources to the field. Similarly, when a 

natural or industrial disaster, famine, disease, or other natural phenomenon strikes and USAID takes 

the lead, State has a diplomatic and, often, also an operational role to play in support.”12 

In the field, subject to a few exceptions such as those personnel under the command of a U.S. 

Combatant Commander, the Chief of Mission will have full responsibility for the direction, 

coordination, and supervision of all in-country USG executive branch employees. In Washington, 

State and USAID will work closely with the National Security Staff and other federal agency partners 

articles with a civilian focus theme), Small Wars Journal (http://smallwarsjournal.com), available at
 

http://smallwarsjournal.com/blog/journal/docs-temp/819-anderson.pdf (last visited July 27, 2011). 10 DODI 3000.05, supra note 6 at 4b. 11 QDDR, supra note 8, p. xiii. 12 QDDR, supra note 8, p. 133.
 

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to ensure unified interagency guidance, planning, and execution. In situations that call for a joint 

civil-military approach, State and USAID will coordinate with DOD.13 

The QDDR has mandated the development of a new process to coordinate stability and transition 

operations, the International Operational Response Framework (IORF). Under the IORF, State and 

USAID will coordinate with interagency partners, through a National Security Staff led process using 

established systems and procedures to ensure transparent and accountable leadership structures and 

clear agency lines of responsibility. The IORF will, in its design, draw upon relevant aspects of the 

National Incident Management System utilized by the Federal Emergency Management Agency 

(when it responds to domestic disasters) as well as other international response mechanisms. Like its 

domestic counterparts, the IORF will be designed to govern how the U.S. government conducts crisis 

response by addressing coordination among agencies, ensuring flexibility and speed of response, and 

providing staffing to meet urgent needs.14 

A further objective of the QDDR is to elevate and improve strategic planning within the Department 

of State. In this respect, the newly formed Bureau for Conflict and Stabilization Operations (CSO) 

will serve as the institutional focal point for policy and operational solutions for crisis, conflict, and 

instability.15 

B. The Department of Defense Approach 

The DOD’s Capstone Concept for Joint Operations (CCJO) and DODI 3000.05 establish DOD 

instruction for the conduct and support of stability operations.16 While JA ROL practitioners should 

be aware of PPD-1, they must be conversant with DODI 3000.05. This Instruction sets out DOD 

roles, responsibilities and requirements in the stability operations arena. Originally issued as a 

Directive in November 2005, DODI 3000.05 (issued in September 2009) explains the interagency 

context within which DOD will conduct stability operations. Although recognizing that stability 

operations17 are a “core U.S. military mission” that “the [military] shall be prepared to conduct,”18 

DODI 3000.05 consistently reiterates the supporting role that DOD will often play in stability 

operations. It explicitly states that DOD shall assist USG agencies (along with other relevant 

organizations) in planning and executing R&S efforts to include, amongst other matters, 

“strengthening governance and the rule of law.”19 However, that supporting role should not be taken 

as a sign that the ROL component parts of stability operations are something that judge advocates 

should not meticulously prepare for. Indeed, the Instruction directs that DOD must be able to conduct 

stability operations with a “proficiency equivalent to combat operations.”20 

13 QDDR, supra note 8, p. 134.
 14 QDDR, supra note 8, p. 141.
 15 QDDR, supra note 8, p. 135.
 16 There is ongoing work to relate DODI 3000.05 to PPD-1 and the QDDR vis-à-vis conflict prevention and
 

response operations. 

17 Stability Operations are those missions, tasks, and activities seek to maintain or reestablish a safe and secure 

environment and provide essential governmental services, emergency infrastructure reconstruction, or
 

humanitarian relief. Many of these missions and tasks are the essence of CMO. JOINT CHIEFS OF STAFF, JOINT
 

PUB. 3-0, JOINT OPERATIONS V-1 (13 Feb. 2008). 17 DODI 3000.05, supra note 6. 18 Id. at 4.a.2.
 19 Id. at 3.
 20 Id. See also REPORT OF THE DEFENSE SCIENCE BOARD TASK FORCE ON INSTITUTIONALIZING STABILITY 

OPERATIONS WITHIN DOD (Sept. 2005) (urging the Pentagon to accelerate its capabilities to conduct postconflict stability operations). 

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As former Secretary of Defense Gates noted on several occasions,21 a robust civilian foreign affairs 

capability, coupled with a strong defense capability, is essential to preserving U.S. national security 

interests, including the ROL. When civilian agencies cannot operate independently in insecure 

environments, civilian-military teams work together to implement ROL programs and other forms of 

support. In cases where a host nation’s legal infrastructure has ceased to exist or function, U.S. forces 

may play a more significant role in establishing and sustaining the ROL than they would otherwise. 

Even when host-nation judicial capacity is restored, U.S. forces may provide logistical and security 

support to their civilian counterparts. 

Where DOD takes the lead in stability operation activities (such as the establishment of civil security 

and civil control, the restoration of essential services or the repair and protection of critical 

infrastructure), DODI 3000.05 directs that it should do so only until such time as it is feasible to 

transition that lead responsibility to other USG agencies or other organizations. Even during that lead 

phase, DOD is to operate within USG, and as appropriate, “international structures for managing 

civil-military operations, and will seek to enable the deployment and utilization of the appropriate 

civilian authorities.”22 

Suffice it to say, after reading DODI 3000.05, no ROL JA should be left in any doubt about the 

implicit requirement to understand the interagency structure and the explicit requirement for 

interagency coordination in this area of stability operations work. 

C. U.S. Agencies Influencing Stability Operations 

There are an extensive number of individuals and U.S. governmental offices that influence stability 

operations policy. There follows an overview of some of the relevant directives, offices or positions 

at the NSC and at USG agencies. This is followed by a detailed description of the key agencies that 

ROL Judge advocates are likely to encounter during the course of their work. 

1. National Security Council (NSC) System23 

• National Security Council 

• NSC Principals Committee (PC) (DC) 

• NSC Interagency Policy Committees (IPC) (organized on a regional and/or functional basis) 

21 For example, U.S. Department of Defense. Speech by former Secretary of Defense Robert M. Gates,
 

delivered at Kansas State University, Manhattan, KA (the “Landon Lecture”), November 26, 2007, and U.S. 

Department of Defense, Speech by former Secretary of Defense Robert M. Gates at the AFRICOM Activation 

Ceremony, Washington, DC, October 1, 2008, http://www.defenselink.mil/speeches/secdef.aspx. The May 11th 

and June 4th 2009 Memos concerning the “Department of Defense (DoD) Civilian Support to Global 

Expeditionary Requirements” codified these sentiments.

22 DODI 3000.05, supra note 6 at 2.
 23 See PPD-1, supra note 7.
 

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2. Department of State24 (DOS)25 

• Secretary of State (S) 

• Deputy Secretary (D) 

• Deputy Secretary for Management and Resources (DMR) 

• Director of U.S. Foreign Assistance (F) 

• Counselor of the Department (C) 

• Under Secretaries for: 

• Arms Control and International Security (T) 

• Economic, Energy and Agricultural Affairs (E) 

• Democracy and Global Affairs (G) 

• Management (M) 

• Political Affairs (P) 

• Public Diplomacy and Public Affairs (R) 

• Special Envoys and Special Representatives 

• Coordinator, Threat Reduction Programs 

• Special Adviser for Nonproliferation and Arms Control 

• Special Envoy for Climate Change 

• Special Envoy for Conventional Armed Forces in Europe 

• Special Envoy for Eurasian Energy 

• Special Envoy for Holocaust Issues 

• Special Envoy for Middle East Peace 

• Special Envoy for North Korean Human Rights Issues 

• Special Envoy for the Six-Party Talks 

• Special Envoy to Monitor and Combat Anti-Semitism 

• Special Envoy to Sudan 

• Special Representative for Global Partnerships 

• Special Representative for North Korea Policy 

• Special Representative of the President for Nuclear Nonproliferation 

• Special Representative to Afghanistan and Pakistan 

• Special Representative to Muslim Communities 

• Bureaus and Offices 

• Administration (A) 

• African Affairs (AF) 

• Allowances (A/OPR/ALS) 

• Arms Control, Verification and Compliance (AVC) 

• Authentication Division (A/OPR/GSM/AUTH) 

• Coordinator for Counterterrorism (S/CT) 

24 The QDDR (see supra note 8, ch. 4) contains organizational recommendations that would change this listing,
 

including but not limited to the creation of a Bureau for Conflict and Stabilization Operations (CSO) that would 

subsume S/CRS. Note, underlined entries in this list are hyperlinked in the electronic version.
 25 But note, by way of example of causing inadvertent interagency tension, although “DOS” is used by DOD in
 

its Joint Pub 1-02, Dictionary of Military and Associated Terms, it is not a recognized/accepted abbreviation,
 

nor is it used, within the Department of State. 

Chapter 2 22 

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• Coordinator for Reconstruction and Stabilization (S/CRS) 

• Chief Information Officer (CIO) 

• Chief of Staff (S) 

• Civil Rights, Office of Consular Affairs (CA) 

• Democracy, Human Rights, and Labor (DRL) 

• Diplomatic Security (DS) 

• Director General of the Foreign Service and Director of Human Resources (DGHR) 

• East Asian and Pacific Affairs (EAP) 

• Economic, Energy and Business Affairs (EEB) 

• Educational and Cultural Affairs (ECA) 

• European and Eurasian Affairs (EUR) 

• Executive Secretariat (S/ES) 

• Foreign Service Institute (FSI) 

• Foreign Missions, Office of Global AIDS Coordinator, Office of (S/GAC) 

• Global Women's Issues (S/GWI) 

• Human Resources (M/HR) 

• Information Resource Management (IRM) 

• Inspector General (OIG) 

• Intelligence and Research (INR) 

• International Information Programs (IIP) 

• International Narcotics and Law Enforcement Affairs (INL) 

• International Organization Affairs (IO) 

• International Security and Nonproliferation (ISN) 

• Legal Adviser (L) 

• Legislative Affairs (H) 

• Management Policy, Rightsizing and Innovation (M/PRI) 

• Medical Services (M/MED) 

• Near Eastern Affairs (NEA) 

• Oceans and International Environmental and Scientific Affairs (OES) 

• Overseas Buildings Operations (OBO) 

• Policy, Planning, and Resources for Public Diplomacy and Public Affairs, Office of (R/PPR) 

• Policy Planning Staff (S/P) 

• Political-Military Affairs (PM) 

• Population, Refugees, and Migration (PRM) 

• Protocol (S/CPR) 

• Public Affairs (PA) 

• Resource Management (RM) 

• Rightsizing the U.S. Government's Overseas Presence (M/R) 

• Science & Technology Adviser (G/STAS) 

• South and Central Asian Affairs (SCA) 

• Trafficking in Persons (G/TIP) 

• War Crimes Issues (S/WCI) 

• Western Hemisphere Affairs (WHA) 

3. U.S. Agency for International Development (USAID) 

• Administrator of USAID 

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•	 Regional Bureaus (Africa (AFR), Asia/Near East (ANE), Europe/Eurasia (E&E), Latin 

America/Caribbean (LAC), Middle East) 

•	 South Asian Affairs (ANE/SAA) 

•	 Iraq Reconstruction (ANE/IR) 

•	 Bureau for Democracy, Conflict and Humanitarian Assistance (DCHA) 

•	 Democracy and Governance 

•	 Rule of Law Division 

•	 Governance Division 

•	 Elections and Political Processes Division 

•	 Civil Society Division 

•	 Office of Transition Initiatives (OTI) 

•	 Management and Program Operations Team 

•	 Field Operations Team 

•	 Conflict Management and Mitigation 

•	 U.S. Foreign Disaster Assistance (OFDA) 

•	 Volunteers for Prosperity 

•	 Military Affairs 

•	 Planning Division 

•	 Operations Division 

•	 Bureau of Economic Growth, Agriculture and Trade (EGAT) 

•	 Women in Development 

•	 Economic Growth 

•	 Economic Policy and Governance Team 

•	 Poverty Reduction 

•	 Microenterprise Development Team 

•	 Poverty Analysis and Social Safety Net Team 

•	 Infrastructure and Engineering 

•	 Agriculture 

•	 Agriculture and Rural Policy/Governance Team 

•	 Agricultural Technology Generation and Technological Outreach Team 

•	 Agribusiness and Markets Team 

•	 Bureau for Global Health 

•	 Bureau for Legislative and Public Affairs 

4.	 Department of Justice (DOJ) 

•	 Attorney General 

•	 Deputy Attorney General 

•	 Assistant Attorney General, Criminal Division 

•	 International Criminal Investigation Training Assistance Program (ICITAP) 

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•	 Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) 

•	 Director, Federal Bureau of Investigations (FBI) 

•	 Director, U.S. Marshals Service (USMS) 

•	 Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

•	 Administrator, Drug Enforcement Administration (DEA) 

•	 Director, Federal Bureau of Prisons 

•	 Office of Legal Policy (OLP) 

•	 Office of Intergovernmental and Public Liaison 

•	 Office of Legal Counsel (OLC) 

5.	 Department of Defense (DOD) 

•	 Secretary of Defense 

•	 Deputy Secretary of Defense 

•	 Secretary of the Army 

•	 Joint Chiefs of Staff (JCS) 

•	 Chairman of JCS 

•	 Joint Chiefs 

•	 Joint Staff: J-1 – J-9 

•	 Under Secretary of Defense for Policy 

•	 Assistant Secretary for Legislative Affairs 

•	 Assistant Secretary for Stability Operations and Low Intensity Conflict 

•	 Deputy Assistant Secretary of Defense for Stability Operations 

•	 Office of General Counsel 

6.	 U.S. Department of Agriculture (USDA) 

•	 Secretary of Agriculture 

•	 Office of Scientific and Technical Affairs 

•	 Office of Country and Regional Affairs 

•	 Office of Capacity Building and Assistance 

•	 Employees detailed to serve as agriculture advisors to Provincial Reconstruction teams in 

Iraq and Afghanistan 

7.	 Department of Commerce 

•	 Secretary of Commerce 

•	 Afghanistan Investment and Reconstruction Task Force 

•	 Iraq Investment and Reconstruction Task Force 

8.	 Department of the Treasury 

•	 Secretary of Treasury 

•	 Under Secretary for International Affairs 

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•	 Assistant Secretary for International Affairs 

•	 Deputy Assistant Secretary for Regions (Africa/ME, South and East Asia, WHA, 

Europe/Eurasia) 

•	 Deputy Assistant Secretary for International Technical Assistance Policy 

•	 Deputy Assistant Secretary for Trade and Investment Policy 

•	 Deputy Assistant Secretary for Monetary and Financial Policy 

•	 Deputy Assistant Secretary for International Development Finance and Debt 

•	 Deputy Assistant Secretary for Investment Security 

9. Executive Office of the President, Office of Management and Budget (OMB) 

•	 Director of the OMB 

•	 National Security Programs 

•	 International Affairs Division 

•	 National Security Division 

II. U.S. Governmental Agencies Involved in Rule of Law 

A number of USG entities participate in ROL operations within, and outside of, the context of 

stability operations. Each of these departments and agencies has a somewhat different emphasis and 

perspective to the ROL. Many of them have extensive deployed experience to draw upon. A brief 

description of the major USG Departments and Agencies involved in ROL is set out below.26 

A. Department of State 

The Department of State is responsible for planning and implementing U.S. foreign policy. It has the 

mandate to prepare for, plan, coordinate, and implement U.S. reconstruction and stabilization 

operations in a wide range of contingencies, including disaster relief emergencies, failing and failed 

states, and post-war arenas. Thus, the Department of State serves as the center of federal action in 

creating, managing, and deploying response capabilities for a variety of purposes, including 

advancing host-nation security, good governance, free elections, human rights, and rule of law. 

Where the U.S. military is involved, the Department of State coordinates with DOD to synchronize 

military and civilian activities. The Secretary of State has overall responsibility to lead both steadystate and contingency planning in operations and coordinate federal agencies’ respective response 

capabilities. The Secretary’s specific responsibilities include: 

•	 Informing U.S. decision makers of viable options for stabilization activities 

•	 Coordinating U.S. efforts with those of other governments, international and regional 

organizations, NGOs and private companies 

•	 Seeking input from individuals and organizations with country-specific expertise 

•	 Leading development of a robust civilian response capability with a prompt deployment capacity 

and civilian reserve 

•	 Gleaning lessons learned and integrating them into operations 

•	 Coordinating and harmonizing military and civilian participation 

•	 Resolving relevant policy, program or funding disputes among U.S. agencies and departments 

26 The Editor is particularly grateful for the support and cooperation of various individuals within these 

government agencies in producing this Handbook. However, any errors in this Handbook are the responsibility 

of the Editor alone. 

Chapter 2 26 

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•	 Implementing foreign assistance programs around the world, in coordination with USAID and 

DOD, and in partnership with other U.S. agencies and departments. 

Congress funds ROL programs and related activities primarily through appropriations for the 

Department of State and the U.S. Agency for International Development (USAID).27 The Office of 

the Director of Foreign Assistance (F) has overall responsibility for coordinating the funding for U.S. 

foreign assistance programs, including ROL programs and activities. It works closely with 

Department of State and USAID bureaus responsible for designing and implementing this 

assistance—including within State the Bureau for International Narcotics and Law Enforcement 

Affairs (INL) and Bureau of Democracy, Human Rights and Labor (DRL), in consultation with the 

appropriate regional bureau. These entities identify program priorities and determine the appropriate 

mechanisms through which to execute the assistance, e.g., through transfers to other agencies (such as 

DOJ, DHS, and Treasury), contracts, grants, and agreements with international organizations. 

Regional bureaus and relevant country desk officers assist in the coordination of efforts on a countryby-country basis. 

Functional bureaus, such as INL, may take the lead for particular issues or programs in a country. For 

example, INL has program offices focused on specific regions of the world. There is an INL Office 

for Afghanistan & Pakistan as well as an INL Office for Iraq. These program offices design, 

implement and manage capacity-building programs addressing a myriad of ROL issues. In 

Afghanistan and Iraq, DOD received specific legislative authority to execute many ROL programs, 

primarily the training of the Iraqi Police, but also including some civilian law enforcement training, 

civilian justice capacity building, and economic reconstruction. This type of authority is unique to 

these two operations, and therefore, JAs should be aware that DOD does not have the statutory 

authority to engage in similar activities in other parts of the world, and therefore must be cautious 

about generalizing from programs conducted in those theaters. 

As previously stated, the QDDR indicates that Department of State28 will lead operations in response 

to political and security crises and conflicts where there is a challenge to or a breakdown of authority 

resulting from internal or external conflict or destabilizing activities by state or non-state actors. This 

is not limited to acute crises but includes persistent conflict and instability such as severe state 

fragility, extremist activity, endemic criminality, and civil unrest. 

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

a.	 Introduction and Overview 

The Department of State’s Bureau of International Narcotics and Law Enforcement Affairs (INL) 

develops policies and programs to combat international narcotics and transnational crime. INL leads 

within the State Department on these narcotics and law enforcement issues. It also serves as the lead 

U.S. government agency on overseas criminal justice sector reform. Its counternarcotics programs 

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

reducing drug use. Its criminal justice reform programs cover a diverse range of initiatives, including 

work with law enforcement officers, correction officials, prosecutors, defense attorneys, civil society, 

legal educators, court employees, and judges. INL employs approximately 7,000 people (including 

civil servants, foreign service officers, contractors, and local hires) on programs in more than 70 

countries. 

27 But see §I B supra for details of an exception to this rule, namely the DOD funded JAGC / USC ROLC 

interagency training program.

28 For the second (USAID) limb of the QDDR lead agency approach to crisis operations, see § II B infra. 

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In addition to the program offices, INL has several functional bureaus that provide technical guidance 

to program officers on ROL issues. Specifically, within INL’s Office of Criminal Justice Assistance 

and Partnership (INL/CAP) and the Office of Anti-Crime Programs, there are senior advisors 

dedicated to providing advice and subject matter expertise on policing, criminal justice development, 

anticorruption, transnational criminal matters, and corrections reform. The INL/CAP also serves as 

INL’s link to S/CRS and is home to INL’s Civilian Response Corps Active Component members 

with expertise in civilian police, criminal justice development, corrections assistance, and postconflict ROL programming. The guidance from State’s regional and functional bureaus provides the 

framework within a country for carrying out U.S. missions, programs, and policies in a country, but it 

is the country team system that provides the foundation for interagency consultation, coordination, 

and action in the field. 

b. INL Mission 

The INL Bureau’s Strategic and Resource Plan states that “[t]he mission of the Bureau of 

International Narcotics and Law Enforcement Affairs (INL) is to minimize the impact of international 

crime and illegal drugs on the United States, its citizens, and partner nations by providing effective 

foreign assistance and fostering global cooperation.” This mission centers on helping partner nations 

establish a capable and accountable criminal justice sector, expanded during the past decade to 

include stabilizing post-conflict societies through criminal justice sector reform. INL’s work seeks to 

strengthen justice sector institutions in order to promote peace and security, good governance and the 

ROL, with its programs supporting three inter-related objectives: 

•	 Building Criminal Justice Systems - Institutionalize ROL by developing and expanding 

criminal justice systems to strengthen partner country justice sector effectiveness, foster 

cooperation in legal affairs, and advance respect for human rights; 

•	 Counter Narcotics - Disrupt the overseas production and trafficking of illicit drugs through 

targeted counternarcotics and institution-building assistance and coordination with foreign 

nations and international organizations; and 

•	 Transnational Crime - Minimize the impact of transnational crime and criminal networks on the 

U.S. and its allies through enhanced international cooperation and foreign assistance. 

c. Criminal Justice System Components 

INL views criminal justice systems holistically, recognizing the need for all basic components to 

work effectively. The basic components of criminal justice systems and what is required to build 

each are: 

•	 Legal Foundation – general criminal code and procedural reform, specific transnational crime 

legislation (counter-terrorism, trafficking in persons). 

•	 Police – compliance with international human rights standards for all aspects of police conduct, 

including detention; expertise in gender-based and child-related crimes with appropriate services; 

public accountability and trust; ethics and disciplinary systems; transparent, accountable 

recordkeeping and case management; organizational management and operations; professional 

development. 

•	 Prosecutors – case preparation, transparent, accountable recordkeeping and case management, 

organizational management and operations, victim and witness services, ethics and disciplinary 

systems, professional development and continuing legal education, public accountability and 

trust. 

•	 Defense Bar – access to justice; compliance with international human rights standards; 

professional standards; professional associations and advocacy; continuing legal education; ethics 

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and disciplinary systems that include a requirement of zealous representation of the defendant; 

organizational management and operations. 

•	 Judiciary and Courts – compliance with international human rights standards; public 

accountability and trust; ethics and disciplinary systems; transparent, accountable recordkeeping 

and case management; organizational management and operations; effective, accountable court 

administration; judicial selection and disciplinary systems; judicial independence; court and 

witness security; continuing judicial education; professional development; coordination with 

informal dispute resolution mechanisms. 

•	 Corrections - compliance with international human rights standards in the treatment of prisoners 

and their living conditions, including security; expertise in appropriate handling of women and 

children; public accountability and trust; ethics and disciplinary systems; transparent, 

accountable recordkeeping and case management; organizational management and operations; 

professional development. 

•	 Civil Society – promoting citizen knowledge about the law and ensuring access to justice for 

citizens; holding government accountable for abiding by the ROL. 

d. INL Organization 

INL implements its programs through: 

•	 Funding to federal, state and local agencies. For example, at the federal level, INL provides 

funds to the Department of Justice Office of Overseas Prosecutorial Development, Assistance and 

Training (OPDAT) and International Criminal Investigative Training Assistance Program 

(ICITAP). At the state and local level, INL has relationships with police, judicial and corrections 

agencies and associations; 

•	 Contracts with individuals and private firms chosen through a competitive process; 

•	 Contracts with host country subject matter experts; 

•	 Grants to nonprofits and universities; and 

•	 Contributions and secondments to multilateral organizations, such as the United Nations and 

European Union missions. 

e. Regional & Functional Offices 

To advance the INL mission and promote a holistic approach to strengthening criminal justice 

systems, INL is organized into regional and functional offices in Washington, DC, with varied field 

presence throughout the world. There are five INL regional offices: (1) Iraq Office; (2) Afghanistan 

& Pakistan Office; (3) Europe & Asia Office; (4) Latin America Office; and (5) Africa and Middle 

East. An overview of the work performed by INL’s Iraq and Afghanistan Offices, being those that JA 

will be most familiar or likely to work with, follows. 

(1) Office of Iraq Programs (INL/I) 

INL’s mission is an integral player in U.S. Government efforts to help the Government of Iraq and the 

Iraqi people to promote security, stability, and respect for the ROL in Iraq. INL provides assistance 

on all three major aspects of criminal justice development: police, courts, and corrections. A 

common thread throughout these programs is tackling corruption issues. With respect to police, INL 

is now implementing the transition from the U.S. military’s International Training and Assistance 

Mission to an INL-led program that will employ U.S. police advisors and mentors drawn from the 

senior ranks of many U.S. law enforcement organizations. The focus of the INL program, which will 

build on the progress over recent years in basic training and professional skills, will be to develop 

leadership and management capability in the Ministry of Interior and police forces throughout Iraq. 

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The program will also seek to establish sustainable Iraqi-managed training programs at all levels. On 

the corrections side, through interagency agreements, INL provided funds to the Department of 

Justice to deploy corrections advisors and trainers, who will work with the Iraqi Corrections Service 

(ICS). This work helped raise Iraq’s corrections services to internationally accepted standards of 

humane treatment. With respect to the judiciary, INL supports a broad range of programs including 

developing the judiciary’s skills and procedures to investigate and process criminal cases, updating 

court administration, augmenting judicial security, and improving the judiciary’s coordination with 

the Iraqi law enforcement and corrections agencies. Finally, INL also supports a number of programs 

to help the Iraqi government combat corruption and help it meet its obligations under the United 

Nations Convention Against Corruption, to which Iraq became a state party in 2008. 

(2) Office of Afghanistan and Pakistan Programs (INL/AP) 

INL is the largest single provider of ROL assistance in Afghanistan. INL’s Justice Sector Support 

Program (JSSP) and Corrections System Support Program (CSSP) are nationwide criminal justice 

sector development programs focused on institutional capacity building as well as training and 

mentoring in Kabul and in key provinces. JSSP and CSSP currently have a permanent presence at the 

Afghan National Police (ANP) Regional Training Centers in Konduz, Jalalabad, Gardez, Bamiyan, 

Herat, and Mazar-i-Sharif; CSSP also has a permanent advisory team based at Sarposa prison in 

Kandahar and at the Provincial Reconstruction Team in Uruzgan. INL is also developing a Central 

ROL Training Center in Kabul. JSSP employs over 60 American attorneys and over 90 Afghan 

attorneys to work with the Ministry of Justice, Attorney General’s Office, Supreme Court, and 

Ministry of Women’s Affairs. 

JSSP trained over 2,700 Afghan investigators, prosecutors, judges, and defense attorneys across the 

country. In regards to the corrections program, CSSP employs over 70 American corrections advisors 

and over 170 Afghans to work with the Afghan Central Prison Directorate and the Afghan Juvenile 

Rehabilitation Directorate to develop a safe, secure, and humane Afghan corrections system, which 

meets international standards and Afghan cultural requirements. CSSP has trained over 6500 Central 

Prison Directorate personnel nationwide. INL also provides corrections infrastructure assistance to 

the Afghan Government, including the renovation of Pol-i-Charkhi prison, building new provincial 

prisons in Baghlan and Wardak, and security and humanitarian renovation projects nationwide. 

In addition to CSSP and JSSP, INL maintains gender-focused programs, including those that provide 

women’s shelters, train female judges, and support a Violence Against Women unit in the Attorney 

General’s Office. Other INL programs expand legal aid services to the indigent in most provinces in 

Afghanistan, and; increase public awareness of legal rights, issues, and services. INL supports 

programs fighting major crime in Afghanistan, including narcotics, corruption, national security, and 

kidnapping. INL also supports a Judicial Security Unit to protect Afghan Justice Officials. INL 

funds the United States Institute of Peace to work on connecting informal, community-based justice 

mechanisms with formal, government-provided mechanisms. INL also funds a visiting scholars grant 

with the University of Washington, and 58 Afghan Law Professors and Deans have travelled to 

Seattle for study trips, with 15 graduating with LLM degrees. Additionally, INL supports other 

scholarship programs, clinical legal education, text book writing, and curriculum and teaching reform 

in law schools throughout the country. 

Finally, INL is working with CJIATF-435 to partner with the Afghan Government in the 

development of the Justice Center in Parwan (JCIP), which enables the transition of U.S. military 

detainees from Law of Armed Conflict (LOAC) status into the Afghan criminal justice system. 

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(3) Functional Offices 

In addition to the five regional program offices, INL has a number of functional offices. Some of the 

offices that JAs may come in contact with include the Office of Criminal Justice Assistance and 

Partnership (INL/CAP), Office of Anti-Crime Programs (INL/C), Office of Aviation (INL/A), and 

Office of Policy, Planning and Coordination (INL/PC). INL/CAP provides technical support to INL 

offices through its subject matter experts in law enforcement, justice and corrections. Through its 

Office of Anti-Crime Programs, INL works to combat transnational crimes and illicit networks by 

helping to fight organized crime, kleptocracy and other forms of corruption, money-laundering and 

terrorist financing, cyber and intellectual property crimes, and narcotics trafficking as well as other 

smuggling and trafficking crimes. The Office of Policy, Planning and Coordination is the primary 

point of contact for all transnational crime and drug issues involving the UN, OAS, G-8, the EU and 

other multilateral institutions. INL’s Office of Aviation provides centralized services for 

counternarcotics and border security aviation programs. 

f. INL Contacts and Further Information 

Subject Matter Expertise Contact 

Police INLCAPJOBS@state.gov 

Rule of Law INLCAPJustice@state.gov 

Corrections INLCorrectionsJobs@state.gov 

INL Program Offices 

INL/AP Justice Inl-ap-rol-dl@state.gov 

INL/Iraq Rule of Law Team Pf-INL-I-ROL3@state.gov 

General Information http://www.state.gov/p/inl 

2. Bureau for Conflict and Stabilization Operations (CSO) 

In October 2008, Congress authorized the State Department’s Office of the Coordinator for 

Reconstruction and Stabilization (S/CRS) and the establishment of the Civilian Response Corps 

(CRC). As part of the QDDR, S/CRS will be disbanded and its roles and functions will be subsumed 

by the Bureau for Conflict and Stabilization Operations (CSO). The new bureau will serve as the 

institutional focal point for policy and operational solutions for crisis, conflict, and instability with the 

Assistant Secretary of CSO serving as the Secretary of State’s senior advisor on conflict and 

instability. 

CSO will build upon the original mandate and capabilities of S/CRS to coordinate early efforts at 

conflict prevention and rapid deployment of civilian responders as crises unfold, working closely with 

the senior leadership of USAID’s Bureau of Democracy, Conflict, and Humanitarian Assistance. 

CSO will continue to develop the capabilities and systems of the Civilian Response Corps (CRC), 

interagency surge teams, and other deployable assets to meet urgent operational requirements in the 

field. Internationally, CSO will continue to assist efforts to build civilian capacity among key U.S. 

allies and emerging partners to strengthen interoperability and cooperation. 

Established under S/CRS,29 30 and continuing under CSO, the CRC comprises a cadre of experts that 

are trained and equipped to deploy to support conflict prevention efforts and be prepared to rapidly 

respond to countries in crisis or emerging from conflict. The CRC will participate in Washington and 

29 See Department of State, Office of the Coordinator for Reconstruction and Stabilization website,
 

http://www.state.gov/s/crs/ (last visited June 9, 2011).
 30 Department of State, Office of the Coordinator for Reconstruction and Stabilization, Mission statement, 

http://www.state.gov/s/crs/about/index.htm (last visited July 25, 2011).
 

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regionally-based planning and collaborative civilian-military exercises. The CRC provides expertise 

in conflict prevention and stabilization to address these problems systematically. It is made up of 

specially trained USG civilians who are able to deploy rapidly to help countries mitigate conflict. 

The CRC provides a surge in civilian power at more than two dozen posts overseas, including 

national security priorities such as Afghanistan and Sudan. The CRC is comprised of diplomats, 

development specialists, public health officials, law enforcement and corrections officers, engineers, 

economists, lawyers, and others who help fragile states restore stability. 

This expeditionary diplomacy represents a new approach to fragile, conflict-prone countries. It also 

represents an important capability to further extend the reach and impact of U.S. foreign policy, using 

civilian power from the across the USG to support U.S. embassies in their efforts to help fragile 

states. The QDDR recommends a greater commitment to these civilian efforts. While the CRC 

provides a new approach, the central purpose of the work of the CRC is: to help countries facing 

conflict find and implement their own solutions, and to advance America’s core interests: security, 

prosperity, universal values of democracy and human rights, and a just international order. 

B. U.S. Agency for International Development 

Editor’s Note: This section gives a broad overview of USAID’s global mission. For Iraq and 

Afghanistan-specific ROL programs the reader should look at USAID’s missions’ websites for those 

two countries at: http://www.usaid.gov/iraq/ and http://afghanistan.usaid.gov/en/index.aspx (and for 

USAID’s ROL programs in Afghanistan, see Appendix, Table 2). Understanding how USAID 

functions will, undoubtedly, assist judge advocates in implementing ROL projects. 

1. Introduction 

The United States Agency for International Development (USAID) plays both a major role in U.S. 

foreign policy and a principal role in interagency coordination. It is an autonomous agency under the 

policy direction of the Secretary of State through the International Development Cooperation Agency, 

which is headed by the Administrator of USAID. 

As stated in the National Security Strategy, development stands with diplomacy and defense as one of 

three key pieces of the nation’s foreign policy apparatus. USAID promotes peace and stability by 

fostering economic growth, protecting human health, providing emergency humanitarian assistance, 

and nurturing democracy in developing countries. These efforts to improve the lives of millions of 

people around the globe represent U.S. values and advance U.S. interests by building a safer, more 

prosperous world. 

As previously stated, the QDDR has indicated that USAID will lead on operations responding to 

humanitarian crises resulting from large-scale natural or industrial disasters, famines, disease 

outbreaks, and other natural phenomena.31 This approach reaffirms the 1993 Executive Order 

designating the USAID Administrator as the U.S. government’s International Disaster Relief 

Coordinator, with broad responsibilities to lead all agencies in U.S. government disaster response. 

USAID will also drive the humanitarian response under State’s overall lead when such disasters occur 

in acute political and security situations, such as the floods in Pakistan in the summer of 2010. 

USAID provides assistance in sub-Saharan Africa, Asia and the Near East, Latin America and the 

Caribbean, and Europe and Eurasia. With headquarters in Washington, D.C., USAID’s strength is its 

field offices in many countries around the world. 

31 Cf. State’s lead on operations in response to political and security crises and conflicts. See § II A above. 

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The Agency operates in approximately 100 developing countries (the number varies from year to 

year), working closely with private voluntary organizations (PVOs), indigenous groups, universities, 

American businesses, international organizations, other governments, trade and professional 

associations, faith-based organizations, and other U.S. government agencies. Through contracts and 

grant agreements, USAID partners with more than 3,500 companies and over 300 U.S.-based PVOs. 

This section seeks to provide a basic primer to JAs who are either working stateside or overseas and 

who may or may not encounter USAID programming. It outlines the goals, types of assistance and 

authorities that USAID has to conduct development work overseas. The guide reviews the financial 

mechanisms USAID has for implementation, the partners with whom USAID works and the field and 

Washington presence of USAID. More specifically, this guide discusses further USAID’s work in 

democracy, governance and human rights, with a focus on ROL, security sector reform and DDR 

activities—all three areas in which you may find yourself working alongside in partnership with 

USAID. 

2. Goals, Types of Assistance and Authorities 

USAID has embraced five core goals: 

• supporting transformational development 

• strengthening fragile states 

• supporting U.S. geostrategic interests 

• addressing transnational problems 

• providing humanitarian relief 

Each of these goals is vitally relevant to development, including combating terrorism and 

strengthening American security at home and abroad. 

The types of assistance USAID provides include: 

• technical assistance and capacity building 

• training, scholarships and grants 

• food aid and commodity purchases 

• construction of infrastructure (e.g., roads, water systems) 

• small-enterprise loans 

• budget support 

• enterprise funds supporting transition to a free market society 

• credit guarantees 

The Foreign Assistance Act (FAA) of 1961, as amended, is the major law authorizing foreign 

economic assistance programs. The FAA provides the policy framework within which all economic 

aid is furnished, along with the legal powers (authorities) to implement FAA assistance programs. 

Other legislation—such as the FREEDOM Support Act for the states of the former Soviet Union, 

Public Law (PL) 480 Title II for food aid, and the 2003 U.S. Leadership Against HIV/AIDS, 

Tuberculosis, and Malaria Act—authorize additional foreign aid programs. Some of these acts amend 

the FAA or rely on its authorities. Others are stand-alone legislation authorizing additional foreign 

assistance programs. In addition to this authorizing legislation, annual appropriations acts provide 

funding for FAA and other aid programs. 

Both authorizing and appropriations legislation provide various authorities that permit considerable 

flexibility in managing assistance programs. However, they also place limits on how and where 

particular programs may be administered. In addition to the enacted law itself, reports accompanying 

the various pieces of legislation provide guidance to the executive branch on the congressional intent 

behind provisions in the law or how Congress wishes it to be implemented. 

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Most limitations affecting foreign assistance programs are set out in appropriations legislation and in 

reports issued by Congress’ appropriations committees. The most relevant limitations include: 

•	 Prohibitions on assistance to certain countries, such as those that support international terrorism 

or engage in gross violations of internationally recognized human rights; those that are in arrears 

on their loan repayments to the United States; or those whose elected head of government has 

been overthrown by a military coup. 

•	 Provisions that limit or prohibit USAID assistance for certain activities or programs, for example, 

certain policing activities. 

Congressional earmarks require USAID to spend minimum amounts from certain accounts—for 

specific purposes, or in specific countries—reducing the amount that can be spent on other programs 

or in other countries. For USAID, the more significant earmarking is in committee reports. In 2001, 

there were approximately 250 statutory and report-language earmarks and directives from Congress 

affecting development assistance. 

USAID sets targets and measures results at various levels—the overall Agency, bureau, and field 

mission—and in various country environments that range from fragile states to those with more 

advanced economies. 

3.	 USAID Financial Mechanisms for Implementation 

USAID uses a variety of financial mechanisms to implement its assistance programs: 

•	 Contracts purchase services, equipment, or commodities according to a specified scope of work 

(SOW). The SOW is a statement that spells out the exact nature of the purchase, when and where 

it is to be delivered, and other particulars as needed (e.g., cost, special supplier qualifications). 

•	 Cooperative agreements are usually awarded to nonprofit organizations or educational institutions 

to accomplish a public purpose. Typically USAID is substantially involved in carrying out the 

program, at a level specified by the agreement. 

•	 Grants are much the same as cooperative agreements, but allow the recipient more freedom to 

pursue its stated program without substantial involvement from USAID. 

•	 Strategic objective agreements (SOAgs) are formal agreements between USAID and a host 

government that set forth specific development activities to be undertaken, along with mutually 

agreed-upon timeframes, expected results, means of measuring the results, resources, 

responsibilities, and estimated contributions of the parties involved. 

•	 Collaborative agreements were pioneered in FY 2005 as a flexible, streamlined alternative to 

traditional grants and contracts for work with nontraditional partners in the private sector. 

For large efforts, USAID may employ flexible variations of the above tools. For example, an 

indefinite quantity contract (IQC) may be used where the purpose is to provide an unfixed amount of 

supplies and services within stated limits over a set period; as needs become defined, the contractor 

meets them using task orders (TOs). Another example is the leader with associate (LWA) 

mechanism, which allows a USAID mission to propose and manage a subsidiary (associate) 

agreement that piggybacks onto a larger (leader) contract or collaborative agreement. 

While it is a USAID contracting officer or agreement officer who awards contracts, grants, and 

cooperative or collaborative agreements, the “eyes and ears” for managing programs is the 

Contracting Officer’s Technical Representative, or COTR. The COTR monitors technical 

performance and reporting for any potential or actual problem. The COTR is primarily responsible 

for ensuring compliance with the terms of the award. Together with the contracting or agreement 

officer, the COTR is responsible for managing U.S. taxpayer funds. The COTR for any particular 

project is a critical point of contact at the Mission for any information on that project, and may be a 

resource for further direction on other projects similar to the one in question. 

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USAID may also use other types of formal arrangements to accomplish its goals, including: 

•	 transfers to other federal agencies 

•	 contributions to international organizations such as the UN 

•	 implementation letters with host-country governments 

•	 university partnerships 

•	 public-private alliances, a new business model for partnerships with the private sector to achieve 

high-impact sustainable development. 

4.	 USAID and Partner Organizations 

USAID almost always implements its programs through partner organizations. Thus, field staff 

oversee and fund work with agencies and firms that, for example, develop new seed varieties, train 

healthcare professionals, rebuild roads, or run elections. In a limited number of countries where 

accountability for aid funds and competent program implementation are assured, USAID also 

disburses aid directly to governments. 

In countries where USAID has a field office, staff are heavily engaged in policy dialogue, writing 

analytical documents, and monitoring project implementation, whether USAID’s partners are from 

the private sector or affiliated with foreign governments. USAID also coordinates programs with 

other donors such as the UN, the World Bank, and the foreign aid agencies of other countries. 

A wide variety of partners implement USAID programs, including: 

•	 Private voluntary organizations (PVOs): nonprofit groups operated primarily for charitable, 

scientific, educational, or service purposes. Some PVOs working with USAID are international, 

but the majority are U.S.-based (to be eligible for USAID grants, the latter must obtain at least 20 

percent of their funding from non–U.S. government sources). Examples include CARE, 

WildAid, Save the Children, Catholic Relief Services, and World Vision. 

•	 Local and regional nongovernmental organizations (NGOs): voluntary nonprofit organizations 

based in developing countries or regions in which USAID operates. Examples include Bosnia’s 

Center for Civic Cooperation, Guatemala’s Genesis Empresarial, Sri Lanka’s Multi Diverse 

Community, and the Forum for African Women Educationalists. 

•	 Public international organizations (PIOs): organizations whose members are chiefly governments 

(including the U.S.). Examples include UN agencies, the International Committee of the Red 

Cross, the World Bank, and regional development banks. 

•	 Contractors: private companies with legally binding agreements to supply goods or services to the 

U.S. government under a specified scope of work. 

Its reliance on partners does not mean that USAID is merely a “pass-through” or contracting agency. 

For all programs, staff members are significantly involved in: 

•	 influencing host-country policies through negotiations 

•	 evaluating needs for aid through field visits, surveys, and interviews 

•	 deciding what types of programs to prioritize by assessing U.S. legislative and policy 

requirements, host-country needs, and funding availability 

•	 monitoring program progress by visiting sites, reviewing implementers’ reports, and meeting 

frequently with counterparts in the host-country government, donor community, and private 

sector 

•	 reporting to Washington, including to Congress. 

By federal statute, grants are given to implementing agencies or grantees with few strings attached, so 

USAID oversight is limited. However, besides carrying out the responsibilities listed above, USAID 

still must evaluate grant proposals before awards are made, and grantees must report to USAID 

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regularly on the status of their activities. Furthermore, funding beyond a defined time period is not 

guaranteed. 

For contracts, USAID staff direct the implementation of all aspects of a program. In managing 

contracts, USAID: 

•	 defines the exact type, scope, and location of the program by setting out the requirements in a 

request for proposals (RFP) 

•	 evaluates competing proposals using specified criteria 

•	 provides funding, normally in installments (tranches) 

•	 identifies and approves individual tasks if the contract is a broad one, with flexibility built into it. 

5.	 USAID Presence: Field and Washington 

USAID can be noted for its strong field presence and the strong work of Washington-based 

colleagues. There are few civilian agencies in the USG comparable. Field staff are essential for 

understanding a country’s situation, choosing appropriate objectives and strategies, and effectively 

managing the resulting programs. Washington-based staff support field missions and represent 

technical areas that provide expertise in their subject matter areas. 

a. Field Missions 

The U.S. citizens (expatriates) on the staff of USAID missions are only the tip of the iceberg of the 

Agency’s field presence. Expatriate employees in the field manage a larger staff of locally recruited 

specialists. Non-U.S. staff range from technical experts (e.g., agronomists advising on farming 

programs) to support staff (e.g., accountants and administrative workers). USAID staff manage 

implementing partners (agencies receiving USAID funds) primarily through contracts and grants. 

These partners, in turn, employ expatriate and national staff. 

USAID operating units located overseas are known as field missions. The field mission workforce is 

typically composed of three major categories of personnel: U.S. direct hire (USDH) employees, U.S. 

personal services contractors (USPSCs), and foreign service nationals (FSNs). USDHs are career 

foreign service employees assigned to missions for two- to four-year tours. USPSCs are contractors 

hired for up to five years to carry out a scope of work specified by USAID. FSNs—professionals and 

other skilled employees recruited in their host countries by USAID—make up the core of the USAID 

work-force. 

Full field missions usually consist of 9–15 USDH employees, along with a varying number of other 

personnel, including U.S. personal services contractors. They conduct USAID’s major programs 

worldwide, managing a program of four or more strategic objectives (SOs). Medium-sized missions 

(5–8 USDH) manage a program targeting two to three SOs, and small missions (3–4 USDH) manage 

one or two SOs. These missions assist their host countries based on an integrated strategy that 

includes clearly defined program goals and performance targets. 

Regional support missions (typically 12–16 USDH), also known as regional hubs, provide a variety 

of services. The hubs house a team of legal advisors, contracting and project design officers, and 

financial services managers to support small and medium-sized missions. In countries without 

integrated strategies, but where aid is necessary, regional missions work with NGOs to implement 

programs that help to facilitate the emergence of civil society, alleviate repression, head off conflict, 

combat epidemics, or improve food security. Regional missions can also have their own program of 

strategic objectives to manage. 

USAID missions operate under decentralized program authorities (legal powers) allowing missions to 

design and implement programs and negotiate and execute agreements. These authorities are 

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assigned to senior field officers in accordance with each officer’s functions. For example, mission 

directors and principal officers are given authority to: 

• conduct strategic planning and develop country strategic plans 

• waive source, origin, and nationality requirements for procurement of goods and services 

• negotiate and execute food aid agreements 

• implement loan and credit programs; and 

• coordinate with other U.S. government agencies. 

b. USAID Washington 

At its Washington, D.C., headquarters, USAID’s mission is carried out through four regional bureaus: 

Africa (AFR), Asia and the Near East (ANE), Latin America and the Caribbean (LAC), and Europe 

and Eurasia (E&E). These are supported by three technical (or pillar) bureaus that provide expertise 

in democracy promotion, accountable governance, disaster relief, conflict prevention, economic 

growth, agricultural productivity, environmental protection, education reform, and global health 

challenges such as maternal/child health and AIDS. The pillar bureaus are known as Democracy, 

Conflict and Humanitarian Affairs (DCHA); Economic Growth, Agriculture and Trade (EGAT) and 

Global Health (GH). Finally, within geographic bureaus, there are technical specialists, such as in 

democracy and governance, which focus on specific geographic areas and work closely with their 

counterparts in the pillar bureaus. 

The work of these bureaus is supported by several other USAID units. The Bureau for Policy and 

Program Coordination provides overall policy guidance and program oversight. The Bureau for 

Management administers a centralized support services program for the Agency’s worldwide 

operations. The Bureau for Legislative and Public Affairs conducts outreach programs to promote 

understanding of USAID’s missions and programs. The Office for Global Development Alliance 

operates across the four regional bureaus to support the development of public-private alliances. 

Other USAID offices support the Agency’s security, business, compliance, and diversity efforts, as 

well as its faith-based and community initiatives. 

6. USAID Post-Conflict and Transition Activities 

In many situations USAID’s presence will be focused on post-conflict or transition activities, both of 

which may take a slightly different focus than longer-term democracy and governance (DG) 

programming. Though there are many different activities USAID may do in a post-conflict or 

recovery/transition period, the ones most likely to be encountered—and to transition into longer term 

democracy and governance programming—are transition initiatives. 

The USAID Office of Transition Initiatives (OTI) supports U.S. foreign policy objectives by helping 

local partners advance peace and democracy in priority countries in crisis. Seizing critical windows 

of opportunity, OTI works on the ground to provide fast, flexible, short-term assistance targeted at 

key political transition and stabilization needs. 

Since 1994, OTI, part of USAID’s Bureau for Democracy, Conflict, and Humanitarian Assistance, 

has laid the foundation for long-term development in thirty-one conflict-prone countries by promoting 

reconciliation, jumpstarting local economies, supporting nascent independent media, and fostering 

peace and democracy through innovative programming. In countries undergoing a transition from 

authoritarianism to democracy, violent conflict to peace, or pivotal political events, initiatives serve 

as catalysts for positive political change. OTI programs are short-term, typically two to three years in 

duration. OTI works closely with regional bureaus, missions, and other counterparts to identify 

programs that complement other assistance efforts and lay a foundation for longer-term development. 

OTI programs often are initiated in fragile states that have not reached the stability needed to initiate 

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longer-term development programs. OTI strategies and programs are developed and designed to meet 

the unique needs of each situation. 

Many, if not all, OTI programs contribute to longer term democracy and governance programming 

and often handover to a democracy and governance program in a country, when the situation in that 

country has stabilized and a longer term investment can be more realistically made. 

7.	 USAID and Democracy, Governance and Human Rights 

USAID has several discrete objectives in democracy, governance and human rights programming, 

both at field and Washington level to include: 

•	 Strengthen the Justice Sector. Promote the ROL by improving the independence and effectiveness 

of justice sector institutions and increasing citizens’ access to justice. 

•	 Strengthen the Legislative Function / Legal Framework. Promote democratic practices by 

improving the framework of laws to increase the effectiveness and accountability of legislatures 

to the people. 

•	 Strengthen Public Sector Executive Function. Promote democratic practices by improving the 

effectiveness and accountability of executive offices to the people. 

•	 Support Democratic Local Government and Decentralization. Promote the devolution of political 

authority and effective, democratic local governance by strengthening local government functions 

and citizen participation. 

•	 Promote and Support Credible Elections Processes. Establish an impartial framework of electoral 

laws and regulations to support the credible administration of elections and foster voter 

participation to help support electoral outcomes that reflect the will of the people. 

•	 Strengthen Democratic Political Parties. Promote democracy by supporting the development of 

competitive, representative, and transparent political parties. 

•	 Strengthen Civil Society. Nurture a democratic citizenry by promoting pluralism and public 

dialogue and investing in civic education. 

•	 Establish and Ensure Media Freedom and Freedom of Information. Independent media 

disseminating uncensored information promote the development of a well-informed populace. 

•	 Promote and Support Anticorruption Reforms. Fight corruption by making government 

institutions and processes more transparent and accountable. 

•	 Protect Human Rights. Improve due process, nondiscrimination, and representation of all groups 

of society to guarantee citizens’ rights. 

•	 Promote Effective and Democratic Governance of the Security Sector. Increase civilian oversight 

to enhance transparency and accountability and improve public order and security. 

Not every one of these objectives is addressed in each country in which USAID works; it depends 

upon the demonstrated needs and funding and capacity available to address. In all countries in which 

there is a ROL problem, moreover, USAID may not be involved due to, again, funding and capacity. 

USAID uses contracts, grants and other mechanisms mentioned previously to program funding to 

these objectives. Both missions and Washington staff work in tandem towards these goals. ROL and 

security sector reform programming are but two facets of these overall goals but remain linked and 

relevant to all other DG sector programming. 

8.	 USAID Rule of Law Activities 

USAID ROL programming has several key aspects. This section will present these core aspects and a 

case study example to illustrate USAID analysis and approach. 

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The term “rule of law” is used frequently in reference to a wide variety of desired end states. Neither 

scholars nor practitioners have settled upon an accepted definition. ROL is understood to refer to the 

principle of the supremacy of the law, equality before the law, accountability to the law, fair and 

impartial application of the law. ROL is intended to be a safeguard against arbitrary governance. 

Long-term, sustainable economic and social development requires democratic governance rooted in 

the ROL. USAID provides leadership on ROL issues, justice sector reform to USAID field missions 

and bureaus; other USG entities; and the broader democracy and governance community. USAID 

supports program development through five essential elements to support the establishment or long 

term functioning of ROL. 

•	 Order and security—ROL cannot flourish in crime-ridden environments or where public order 

breaks down and citizens fear for their safety. The executive branch has immediate responsibility 

for order and security, but the judiciary has an important role as well in protecting rights and 

providing for the peaceful resolution of disputes. In addition, informal methods of resolving 

disputes, such as mediation or truth and reconciliation commissions, can promote order and 

security. USAID programs in this sector help to support order and security. 

Case Study: Lack of Basic Order and Security in Nepal 

In Nepal, the foremost challenge to rule of law, and therefore a priority for USAID programming, 

was the widespread impunity that is impeding law enforcement, fueling a breakdown in law and 

order, and enabling crime and violence to proliferate. The assessments concluded that politics 

had been criminalized; crimes were regularly ignored; long simmering disputes often boiled over 

into violence; and citizens regularly took the law into their own hands. According to the National 

Human Rights Commission, not a single human rights abuse had been prosecuted in Nepal. 

Where law enforcement authorities had the space to act, they suffered from limitations in 

capacity. The inability of the government to enforce, and refusal to respect the law fueled a 

growing lack of trust in the government and the legitimization of violence. USAID logically has 

focused on interventions to reduce political pressure on law and security institutions and increase 

resources and training. These steps were an initial way forward to support law enforcement 

authorities to restore public trust and confidence. 

•	 Legitimacy—Laws are legitimate when they represent societal consensus. Legitimacy addresses 

both the substance of the law and the process by which it is developed. This process must be 

open and democratic. In some societies, legitimacy can be derived through religion, traditions, 

customs, or other means. Laws do not need to be written in order to be legitimate, since 

traditional/customary laws are often passed on through oral traditions. USAID seeks to promote 

legitimacy through different country specific strategies. Below is a case study of one such 

approach. 

Case Study: Legitimacy of the Source of Law in Morocco 

In Morocco, the legitimacy of the legal framework suffers due to the legislative process and the 

source of the law. Most laws are drafted by executive branch ministries and then are forwarded 

to the legislative branch; laws tend to be amended or enacted with little to no consultation from 

the public. Laws are published in a subscription based Gazette that is not widely available. 

Another problem area of the law-making process results from the legacy of colonial laws that 

were inherited, together with the continuing practice of adopting foreign laws, sometimes with 

few modifications. This is particularly true regarding commercial codes, where frequently the 

text of French laws is simply transferred into the Moroccan system—a practice that has caused 

difficulty, notably regarding the law on bankruptcy. 

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•	 Checks and balances—The ROL depends on a separation of governmental powers among both 

branches and levels of government. An independent judiciary is seen as an important “check.” 

At the same time, checks and balances make the judiciary accountable to other branches of 

government. Like all branches, the judiciary is also accountable to the public. An independent 

and strong bar association can also help support the judiciary and serve as a check against abuse 

of judicial power. 

Case Study: Strengthening Judicial Governance in Russia 

A recent rule of law assessment in Russia found that one of the principal challenges to democracy 

and the rule of law in Russia is safeguarding judicial independence in the face of growing 

executive power. To this end, the assessment team recommended that USAID focus programming 

on strengthening judicial self-governance as a check on the executive branch. 

Factors supporting this recommendation included: the strong link between effective judicial 

governance and judicial independence; the government had declared a policy to promote 

judicial independence; the demonstrated interest of Russian judicial leaders in U.S. judicial 

governance models and the role that ongoing U.S.-Russian international judicial exchanges 

could play; and the benefit of improved judicial governance on sustainability of USAID 

assistance. 

•	 Fairness—Fairness consists of four sub-elements: (1) equal application of the law, (2) procedural 

fairness, (3) protection of human rights and civil liberties, and (4) access to justice. These subelements are keys to empowering the poor and disadvantaged, including women. The justice 

sector bears primary responsibility for ensuring that these sub-elements are in place and 

implemented. 

Case Study: Fairness in Zambia 

A recent rule of law assessment in Zambia found that fairness is a mixed picture in Zambia. On 

the one hand, there is broad respect for law and the courts command a higher degree of public 

confidence than most other public institutions. On the other hand, weaknesses in the 

performance of the justice system, combined with widespread poverty in Zambia and limited 

resources available for investment in improving access to justice, raise serious issues about the 

system’s fairness. 

The poor (majority of the population) cannot afford lawyers or the time and expense of litigation 

in backlogged formal courts. Public defenders and pro bono lawyers are scarce. In rural areas, 

the magistrate courts are located at great distances from where the parties live. The language of 

the formal courts is English, and interpreters are not always available. Access to legal services 

from the government or from civil society groups is quite limited. All this means that for most 

people the only recourse is local courts. The local courts do an impressive job in dispensing 

justice rapidly and at low cost, applying customary (or traditional) law. That said, the well-to-do 

enjoy the luxury of a choice between customary/traditional and formal courts. The poor do not 

have that choice. 

Unfairness is also evident in the criminal justice system. The poor are often held in pretrial 

detention for months and even years, while those with the means or some connections are set free. 

Despite recent attention on gender equality, historical gender-based discrimination persists in 

many criminal justice proceedings. 

•	 Effective application—This element pertains to enforcing and applying laws. Without 

consistent enforcement and application for all citizens and other inhabitants, there can be no 

ROL. The judiciary is an important element of the enforcement process. 

Case Study: Effectiveness of the Application of Laws in Zambia 

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As with fairness, a good example of a lack of effectiveness of application comes from Zambia. 

Some steps have been taken, including an expedited system for rapid adjudication in the High 

Court, which has reduced the backlog and improved the clearance rate. That said, delays in 

legislative and judicial processes and also in the dissemination of new laws and judicial 

decisions cause uncertainty about what is the law. Legal representation of the poor and 

disadvantaged is inadequate to serve the needs. Judges lack training and often operate in substandard conditions. Financial shortfalls also affect the police, prosecutors, legal aid providers 

and prison services. 

There are delays in both civil and criminal prosecutions due to numerous factors, including: 

complex procedures; lax case management procedures; lack of automated information 

management systems; absence of recording equipment to create court records; and judicial 

vacancies or absences in lower courts. 

9. Strategic Goals 

Increasing Democratic Legal Authority: By definition, ensuring that legal authority extends to the 

entire territory of the country and applies to all citizens; ensuring that the justice system has a 

legitimate foundation in the democratic process; eliminating control by armed militias, criminal 

gangs, or warlords. USAID supports programming in constitutional and legal drafting, civilian and 

community policing, gang prevention, criminal justice and security sector reform. In post-conflict 

environments, the agency fosters rebuilding the justice sector, increasing access to justice, enhancing 

oversight of the security sector, working with non-state justice actors and dealing with past abuses. 

Guaranteeing Rights and the Democratic Process: Promoting the independence of the judiciary; 

ensuring the constitutionality of government action; and eliminating politically motivated 

prosecutions. USAID supports programming in human rights, judicial independence, access to 

justice, legal empowerment of the poor and the disadvantaged, civil society oversight of the justice 

system and building a culture of lawfulness. 

Increasing Access to Justice: Providing more effective and efficient justice services such as enforcing 

contracts and appealing administrative decisions. USAID supports the strengthening of justice 

institutions to deliver legal services, with particular focus on the vulnerable and disenfranchised 

populations. Programs to support this objective include working with: the judiciary, ministries of 

justice, parliaments, prosecutors’ offices, public defenders, ombudsman’s offices, law enforcement 

agencies, legal aid/law clinics, regulatory bodies, law schools, bar associations and non-state 

(informal) justice institutions and relevant ADR mechanisms. 

10. USAID and Security Sector Reform (SSR) 

A safe and secure environment is a key building block for development and democracy building. 

Communities that live in fear cannot engage in productive economic, social or political activity. 

Recognizing that effective and responsible governance of the security sector is critical to ensuring 

that societies evolve in democratic and prosperous ways, USAID engages in Security Sector Reform 

programming under the Democracy and Governance portfolio. This work may likely cross paths with 

the U.S. military’s work overseas. 

Security sector reform is the set of policies, plans, programs and activities that a government 

undertakes to improve the way it provides safety, security, and justice. The overall objective is to 

promote an effective and legitimate public service that is transparent, accountable to civilian authority 

and responsive to the needs of the public. From a donor perspective, SSR is an umbrella term that 

might include integrated activities in support of: 

• Defense and armed forces reform 

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• Civilian management and oversight 

• Justice 

• Police 

• Corrections 

• Intelligence reform 

• National security planning and strategy support 

• Border management 

• Disarmament, Demobilization and Reintegration (DDR) 

• Reduction of armed violence. 

The security sector includes three primary sets of actors: state security providers (armed forces, 

police, paramilitary or intelligence services); governmental management and oversight bodies 

(civilian ministries, local government, legislators, judiciary); and civil society (media, community 

groups, special commissions and research institutes). 

Two other sets of actors directly influence the security environment: non-state actors and external 

constituencies, such as neighboring states and regional organizations. 

USAID’s efforts target the civilian actors engaged in, or affected by, the security sector. USAID is 

restricted by Congress to focusing on this particular area of SSR. The agency’s primary SSR role 

therefore falls under three umbrellas: civilian management and oversight; justice and public safety; 

and peace building and post-conflict reconstruction. 

11. USAID Practice Areas and Illustrative Activities 

Civilian Management and Oversight focuses on individual and institutional capacity to direct, 

participate in and monitor security policy, strategy, and performance. Illustrative activities include: 

• Ministry of Interior reform 

• Parliamentary Oversight and Legislative Drafting 

• Support to National Security Councils 

• Public Expenditure Management Reviews. 

Justice and Public Safety describes activities that help foster a safe environment so that citizens can 

live “free from fear.” These programs focus on the citizen security and criminal justice. USAID is 

restricted by Congress within policing activities to focusing on “community based police assistance,” 

to enhance effectiveness and accountability and to foster civilian police roles that support democratic 

governance. Illustrative activities include: 

• Police reform 

• Community policing 

• Crime Prevention activities 

• Anti-Violence initiatives 

• Access to Justice. 

Peace-building and Post Conflict Reconstruction addresses the trans-national threats that affect the 

safety and well-being of citizens everywhere, particularly in countries emerging from conflict. 

Illustrative activities include: 

• Disarmament, Demobilization and Reintegration programs (see below) 

• Peace Process Support 

• Confidence Building between Communities and Security Services 

• Border Security 

• Post Conflict Reconciliation 

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•	 Transitional Justice 

•	 Efforts to prevent terrorism. 

Congress has allowed USAID to include police in its SSR and ROL programs, as an exception to 

Section 660 of the FAA. These changes, however, do not affect the agency’s inability to provide 

military assistance. Applicable principles of appropriations law provide that funds appropriated to 

USAID at present may not be used for military purposes. Therefore, within DDR, for example, 

USAID may only facilitate components of reintegration programming, not disarmament and not 

demobilization. 

USAID has learned some emerging lessons from SSR. For one, SSR is a whole of government effort 

and requires the full support of all Federal departments and agencies with an SSR role. USAID is 

more effective when it collaborates with other USG actors, such as the Departments of Defense, 

Justice and State. For another, coordinating SSR projects may be more complicated than in other 

sectors since each donor likely represents an array of actors sponsoring security-related activities. 

Therefore it is imperative for U.S. government staff on the ground to coordinate not only with other 

development agencies but relevant defense and law enforcement liaisons as well. 

12. USAID Disarmament, Demobilization and Reintegration (DDR) Activities 

DDR supports the re-establishment of order and the authority of the state by disarming and 

demobilizing former combatants and reintegrating them back into society in a more productive way. 

DDR is a critical activity because it can contribute to breaking the conflict cycle; tackling the root 

causes of conflict; and can make peace, in large part, “irreversible.” 

There are several prerequisites for a successful DDR program: 

•	 It is a political process: without political will on the part of the government in the country of 

assistance, it cannot happen. 

•	 There must also be indigenous military support: without support from statutory or irregular force 

commanders, DDR cannot take place. 

•	 There must be a ceasefire or peace agreement in place before successful DDR can take place. 

•	 There must be a national DDR plan, including: guiding principles, phases and procedures, 

eligibility, implementation arrangements, supervision and monitoring and evaluation. 

•	 With every situation, there may be context-specific technical assistance that has to be provided— 

every case is different. 

A typical DDR process takes place in three parts: 

Disarmament: the collection, documentation, control and disposal of small arms, ammunition, 

explosives and light and heavy weapons. This takes place in several steps: 

•	 Weapons survey 

•	 Weapons collection 

•	 Weapons storage 

•	 Weapons destruction 

•	 Weapons reutilization. 

Demobilization: formal and controlled discharge of active combatants from armed forces or other 

armed groups. The first stage may include the processing of combatants in temporary centers or 

camps. The second stage is called reinsertion, a form of transitional assistance to help cover the basic 

needs of ex-combatants and their families. Demobilization can be formal or informal: an agreement 

can be signed by parties to a conflict (formal), or individuals can demobilize individually, outside the 

command of their former leaders (informal). USAID assistance to reintegration is dependent upon 

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the demobilization status of ex-combatants—they must be demobilized. In summary, demobilization 

activities include: 

•	 Planning 

•	 Encampment 

•	 Registration/Data Collection 

•	 Orientation 

•	 Final Discharge/Issuance of Documentation 

Reintegration (where USAID has a role to play) is the process by which ex-combatants acquire 

civilian status and gain sustainable employment and income. It is a social, legal and economic 

process with an open time-frame, taking place primarily in communities at the local level and in the 

place of origin of ex-combatants. It often requires long term, external assistance. USAID often 

programs in supporting temporary employment in public works projects, vocational skills training or 

on the job training/apprenticeships. There are also opportunities for literacy or numeracy programs, 

access to grants or microcredit, civic education as well as psychosocial and vocational counseling. In 

sum, the components of reintegration are as follows: 

•	 Support to Regional Implementation Agencies 

•	 Transport to Home Region 

•	 Discharge Payments 

•	 Reinsertion Packages 

•	 Reintegration Programs. 

Community focused reintegration works to reintegrate both ex-combatants and their home 

communities together. It has several advantages and can be used in a situation of return of displaced 

persons as well as demobilization of combatants. Some features: 

•	 Provides practical skills to both former combatants and community members 

•	 Targets vulnerable, war-affected populations 

•	 Creates safe environments in which divided communities interact 

•	 Incorporates traditional mediation and conflict resolution 

•	 Offers a mix of targeted training programs and small grants for community projects (which apply 

the new skills and foster cooperation among community members) 

•	 Rebuilds community infrastructure. 

13. References and Contacts for Further Research 

Several websites have been listed below that may be of particular relevance to your work as judge 

advocates in the field. 

•	 USAID Primer: http://www.usaid.gov/about_usaid/primer.html 

•	 USAID Office of Democracy and Governance: 

http://www.usaid.gov/our_work/democracy_and_governance/ 

•	 USAID Office of Military Affairs: http://www.usaid.gov/our_work/global_partnerships/ma/ 

•	 USAID Office of Foreign Disaster Assistance: 

http://www.usaid.gov/our_work/humanitarian_assistance/disaster_assistance/ 

•	 USAID Office of Transition Initiatives: http://www.usaid.gov/our_work/crosscutting_programs/transition_initiatives/ 

•	 USAID and Security Sector Reform: 

http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/SSR_JS_Mar200 

9.pdf 

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•	 USAID Rule of Law Strategic Framework: 

http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/ROL_Strategic_F 

ramework_Sept_08.pdf 

•	 USAID Iraq Mission: http://www.usaid.gov/iraq/ 

•	 USAID Afghanistan Mission: http://afghanistan.usaid.gov/en/index.aspx 

•	 USAID Pakistan Mission: http://pakistan.usaid.gov 

•	 USAID Ethiopia Mission: http://www.usaid.gov/locations/sub-saharan_africa/countries/ethiopia/ 

•	 USAID Somalia Mission: http://eastafrica.usaid.gov/en/Country.1012.aspx 

•	 USAID East Africa Regional Mission: http://eastafrica.usaid.gov/ 

•	 USAID West Africa Regional Mission: http://westafrica.usaid.gov 

•	 USAID Southern Africa Regional Mission: http://sa.usaid.gov/ 

•	 USAID Haiti Mission: http://www.usaid.gov/ht/ 

Subject Matter Expertise Phone (202) 

Access to justice 712-0304 

Policing 712-5416 

Policing 712-1842 

Judicial Reform 712-1471 

Division Chief 712-1113 

Human Rights / Criminal Justice / Anti-Gang Programming 712-5346 

Legal empowerment of the poor 712-1821 

Liaison to the Administrative Offices of the U.S. Courts (AOUSC) 712-4447 

Security Sector Reform 712-1711 

The USAID mission or the Embassy in your country of work will have relevant in-country contacts 

for you regarding democracy and governance, ROL, security sector reform and other USAID 

projects. This section cannot answer all questions that may come up and mission-specific focal points 

can address more detailed queries. Within the USAID Washington headquarters, the following 

telephone points of contact are provided to access sector specific subject matter expertise: 

C. Department of Justice 

The Department of Justice (DOJ) provides legal advice to the President, represents the Executive 

Branch in court, investigates Federal crimes, enforces Federal laws, operates Federal prisons, and 

provides law enforcement assistance to states and local communities. The Attorney General heads 

the DOJ; supervises U.S. attorneys, marshals, clerks, and other officers of Federal courts; represents 

the U.S. 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 ROL operations abroad is growing. 

In cooperation with the DOD, the DOS, and other interagency actors, and with funding from DOS, 

DOJ is now engaged in more than 60 countries in overseas ROL work. DOJ works with foreign 

governments around the world to develop professional and accountable law enforcement institutions 

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that protect human rights, combat corruption, and reduce the threat of transnational crime and 

terrorism. It does this through the overseas work of its law enforcement agencies—including the 

Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the U.S. 

Marshals Service (USMS), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). 

The Bureau of Prisons also contributes. For example, the assistant program manager for the 

corrections development program in Iraq is an active duty warden who is detailed to the International 

Criminal Investigative Training Assistance Program (ICITAP). It also does so through its specialized 

international prosecutorial and police development offices within the Criminal Division, the Office of 

Overseas Prosecutorial Development, Assistance and Training (OPDAT), and the ICITAP. The 

Office of the Deputy Attorney General provides policy oversight and coordination of DOJ’s many 

efforts, while DOS, principally through the DOS / INL Bureau, provides funding and policy guidance 

for all DOJ capacity-building programs. This includes those of OPDAT and ICITAP, which place 

federal prosecutorial and law enforcement experts, respectively, in foreign countries for long-term 

assignments designed to focus on the comprehensive development of all pillars of the criminal justice 

system. 

1.	 Office of the Deputy Attorney General 

The Office of the Deputy Attorney General issues policy guidance and direction to DOJ components 

involved in ROL activities. Three career Department lawyers act as counsel to the Deputy Attorney 

General on ROL matters. One Counsel is responsible for providing leadership and coordination for 

all DOJ component activities in Iraq. This attorney acts as the Deputy’s focal point of information for 

all capacity building and operational matters involving Iraq. Similarly, another Counsel is 

responsible for the Afghanistan mission and, likewise, is responsible for providing leadership and 

coordination for all DOJ component activities in Afghanistan. Finally, a Senior Counsel advises the 

Deputy on broader ROL matters that intersect with the Department’s equities and expertise. 

Additionally, at the request of the former Ambassador to Iraq, the Attorney General deployed a senior 

attorney to serve as the Rule of Law Coordinator for Iraq. The Rule of Law Coordinator serves as the 

Ambassador’s principal agent for coordination of all ROL programs and activities, whether 

performed by DOJ components or other departments and agencies represented at the U.S. Mission to 

Iraq. The Rule of Law Coordinator serves under the authority of the Chief of Mission and is the 

senior DOJ official in Iraq. 

Finally, the Office of the Deputy Attorney General oversees the activities of other senior DOJ 

officials deployed to Iraq and Afghanistan, including the Justice Attachés in Baghdad and Kabul. The 

Justice Attaché in Kabul is the senior DOJ official in Afghanistan. The Rule of Law Coordinator in 

Iraq and Justice Attaches in both Iraq and Afghanistan are selected by and report to the Deputy 

Attorney General. 

2.	 Criminal Division’s International Criminal Investigative Training Assistance 

Program 

One of DOJ’s agencies involved in ROL in a number of countries is the International Criminal 

Investigative Training Assistance Program (ICITAP). The Program’s ROL mission is to support 

foreign policy goals by assisting foreign governments in developing the capacity to provide 

professional law enforcement services based on democratic principles and respect for human rights, 

combating corruption, and reducing the threat of transnational crime and terrorism. ICITAP’s 

activities encompass two principle types of assistance projects: (1) the development of police forces 

and prison systems in the context of international peacekeeping operations, and (2) the enhancement 

of capabilities of existing police forces and prison systems in emerging democracies. Assistance is 

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based on internationally recognized principles of human rights, ROL, and modern police and 

corrections practices. 

The intent of ICITAP’s training and assistance programs is to develop professional civilian-based law 

enforcement institutions.32 ICITAP assistance is designed to: (1) enhance professional capabilities to 

carry out investigative and forensic functions; (2) assist in the development of academic instruction 

and curricula for law enforcement personnel; (3) improve the administrative and management 

capabilities of law enforcement agencies, especially their capabilities relating to career development, 

personnel evaluation, and internal discipline procedures; (4) improve the relationship between the 

police and the community it serves; (5) create or strengthen the capability to respond to new crime 

and criminal justice issues; and (6) develop corrections systems that foster public safety and 

demonstrate respect for the human rights of those incarcerated. Since its creation, ICITAP has 

conducted projects in nearly 40 countries. 

Individuals assigned to ICITAP have been working in Iraq since 2003. ICITAP personnel have 

provided assistance to the Government of Iraq through the Civilian Police Assistance Training Teams 

(CPATT) under a program funded by DOS / INL Bureau, and currently assist the Government of Iraq 

in corrections and anticorruption investigations development programs.33 After helping to found the 

Baghdad Police College, ICITAP personnel engaged in mentoring and advising Iraqi police who 

serve as instructors at the Police College. Additionally, ICITAP has served as implementing partner 

in a DOS program to develop the investigative capabilities of the Commission on Public Integrity, an 

independent, autonomous division of the Iraqi government that focuses on preventing government 

corruption, and promoting transparency and the ROL in Iraq. It has provided significant assistance in 

training and mentoring Iraqi Anti-Corruption Units, Iraqi Special Investigative Units, and Facilities 

Protections Service guards.34 Finally, ICITAP brings extensive experience and expertise in assessing 

Iraqi correctional facilities against international prison standards. ICITAP has helped reestablish the 

Iraq Corrections Service (ICS) and worked with Iraqi leaders to develop a national prison system. It 

has also deployed a team of 80 corrections training officers to provide on-site training and mentoring 

to Iraqi staff at prison facilities throughout the country and to assist the Iraq Ministry of Justice in 

strengthening the overall management of the corrections service. 

3.	 Office of Overseas Prosecutorial Development, Assistance and Training 

(OPDAT)35 

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

(OPDAT). OPDAT’s mission is “to develop and administer technical assistance designed to enhance 

the capabilities of foreign justice sector institutions and their law enforcement personnel, so they can 

effectively partner with DOJ in combating terrorism, trafficking in persons, organized crime, 

corruption, and financial crimes.”36 OPDAT ROL goals relate to initiatives in international training 

and criminal justice development. In this regard, OPDAT provides technical support, training and 

instruction to judges, court staff, prosecutors, and law enforcement officers on management and 

32 ICITAP possesses the following expertise: basic police skills, corrections, public integrity and anticorruption, criminal justice coordination, forensics, organizational development, academy and instructor 

development, community policing, transnational crime, specialized tactical skills, marine and border security 

and information systems. Fact Sheet, The Department of Justice Mission in Iraq: International Criminal 

Investigative Training Assistance Program (ICITAP) available at http://www.justice.gov/iraq/icitap.htm (last 

visited June 9, 2011).

33 Id. 34 Id. 35 For more information, follow the URL in Table 2 of Appendix. 

36 Fact Sheet, OPDAT - OPDAT Mission, available at
 

http://www.justice.gov/criminal/opdat/about/mission.html (last visited June 9, 2011).
 

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substantive and procedural law. The Office is involved in such training programs in South and 

Central America, the Caribbean, Russia, other Newly Independent States, and Central and Eastern 

Europe. 

OPDAT has more than 40 Resident Legal Advisers (RLAs) in 30 countries. RLAs are experienced 

federal or state prosecutors stationed in a host country for at least one year. They provide full-time 

advice and technical assistance in establishing fair and professional justice sector institutions and 

practices.37 

At this time, there are now 10 RLAs in Iraq. RLAs are assigned to Provincial Reconstruction Teams. 

These individuals have helped facilitate the creation of Central Criminal Court panels, often referred 

to as Major Crimes Courts, for Mosul, Tikrit, and Kirkuk. Finally, OPDAT personnel have created 

courses designed to train Iraqi judicial officials in topics ranging from human rights to scientific 

evidence to special challenges presented by the prosecution of insurgency and terrorist cases. 

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 U.S. criminal justice process to 

hundreds of international visitors each year, most through the State Department’s International Visitor 

Leadership Program (IVLP). 

4. Other DOJ Activities in Iraq 

The Department of Justice’s law enforcement components have long provided special investigative 

training and assistance to Iraqi law enforcement through different components. One of the primary 

activities has been the Major Crimes Task Force (MCTF), supported by a program funded by DOS. 

The MCTF is a unique joint Iraqi-U.S. organization providing on-the-job training, support and 

mentoring to Iraqi law enforcement and task force members. Law enforcement agents from the FBI, 

ATF, DEA, and the USMS, work in close partnership with their Iraqi counterparts to conduct 

investigations of serious and often highly sensitive criminal acts. In 2011, the MCTF will transition 

to independent operations led exclusively by Iraqi investigators. The FBI will continue a liaison 

relationship with the MCTF, with a primary focus on major cases of mutual interest to the U.S. and 

Iraq. 

The FBI has deployed a Legal Attaché (Legat) to Iraq who, as a senior-level Special Agent, serves as 

the FBI liaison to the Embassy, U.S. Forces-Iraq (USF-I), and the international community. The 

Legat office provides guidance and assistance on a variety of law enforcement issues, including 

criminal investigations, hostage rescue, counter-intelligence and training, biometrics, and public 

corruption, as well as serves in a supervisory role over the MCTF. The FBI also has a 

counterterrorism unit in Iraq that deploys rotating teams of specialists to provide training to the Iraqi 

police. 

ATF has an Attaché Office in the U.S. Embassy in Baghdad. Its mission is to create the Iraq 

Weapons Investigation Cell to investigate and account for U.S. Government issued munitions; 

establish the ATF Combined Explosives Exploitation Cell which will seek to identify the source 

countries for explosives recovered in Iraq; and to engage in a targeted effort to investigate diversion, 

contraband, and cigarette theft throughout the country. ATF also has provided post-blast 

investigation and explosives/IED-related training to the Iraqi police. 

37 Fact Sheet, USDOJ: The Department of Justice Mission in Iraq: Office of Overseas Prosecutorial 

Development, Assistance and Training available at http://www.justice.gov/iraq/opdat.htm (last visited June 9, 

2011). 

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Finally, the DEA and USMS38 have a small presence, having delivered courses in intelligence and 

intelligence analysis to the Iraqi police and advised on procedures and technologies that will improve 

the safety of civil and criminal courts throughout Iraq. Both DEA and USMS currently support the 

MCTF. 

To support Iraqi efforts to prosecute members of the former Iraqi regime, DOJ established the 

Regime Crimes Liaison Office (RCLO). With more than 140 personnel at its height, serving a variety 

of advisory, security, investigative and support functions, the RCLO supports and assists the Iraqi 

High Tribunal (IHT). RCLO completed its mission, and the function of IHT advisor is now filled by 

a member of the Rule of Law Coordinator’s office. 

5. Other DOJ Activities in Afghanistan 

The Department of Justice has a large presence in Afghanistan coming from the DEA, FBI, USMS, 

counter-narcotic criminal investigator trainers/mentors, and experienced DOJ attorneys. The 

attorneys serve as trainers/mentors to a select group of Afghan investigators, prosecutors and judges 

at the Criminal Justice Task Force (CJTF)39 and the Central Narcotics Tribunal (CNT). In addition, 

the attorneys assist Afghan national security prosecutors in the Antiterrorism Prosecution Directorate 

(ATPD)40 and other members of the Afghan justice sector through mentoring and focused training. A 

detailed description of the CNT and how JAs may be able to use it was contained in Chapter 11 of the 

2010 Handbook. 

The DEA has stationed Special Agents and Intelligence Analysts to enhance counternarcotics 

capabilities in Afghanistan. The DEA provides counternarcotics training to Afghan security forces 

such as the Counternarcotics Police – Afghanistan (CNP-A). Together with the DOD, DEA trainers 

have embarked on a multi-year mission to make the CNP-A’s National Interdiction Unit capable of 

independent operations within Afghanistan. DEA has also established specially trained, Foreigndeployed Advisory Support Teams (FAST). The FAST program currently consists of three teams of 

ten specially trained agents and analysts, who deploy to Afghanistan for 120 days at a time to assist 

the Kabul Country Office and the CNP-A in the development of their investigations. FAST members 

are DEA agents who are trained criminal investigators with some military training. FAST teams 

provide guidance to their Afghan counterparts while also conducting bilateral investigations aimed at 

the region’s narcotics trafficking organizations. FAST operations, which DOD supports and largely 

funds, also help with the destruction of existing opium storage sites, clandestine heroin processing 

labs, and precursor chemical supplies directly related to U.S. investigations. 

As of 2011, DOJ has eleven attorneys engaged in the rule of law mission and three senior criminal 

investigator trainers/mentors at the CJTF and the CNT. Each attorney serves a minimum one-year 

tour of duty. To date, DOJ attorneys have helped the Afghans craft a comprehensive counternarcotics 

law that created a specialized investigative/prosecutorial task force and a specialized court with 

exclusive nationwide jurisdiction for drug trafficking (and related corruption) cases in Afghanistan. 

With the law, and with training and mentoring, the Afghans have begun the use of new and advanced 

investigative techniques and prosecutorial methods and tools. The CNT has successfully heard 

hundreds of cases. The attorneys have also been instrumental in assisting in the removal of narcotraffickers to the U.S. for trial. These experienced attorneys routinely provide guidance and advice to 

38 As of April 15, 2010, Iraq has not had a USMS presence since September 30, 2009. 

39 Under Afghan law, the CJTF has exclusive nationwide jurisdiction over threshold drug cases and drug-related 

corruption.

40 By the end of 2011, DOJ expects to have an attorney located at the Justice Center in Parwan (JCIP) to provide 

assistance and training to Afghan national security prosecutors. 

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the Afghan Attorney General, U.S. Embassy officials, and various U.S. law enforcement entities 

operating in-country.41 

The ATF also has some presence in Afghanistan, having completed Military Post-blast Investigation 

Techniques courses for all services, with more planned. 

The FBI personnel in Afghanistan work on criminal investigations and counter-terror missions. 

Currently, the FBI has a Legal Attaché and two Assistant Legal Attachés stationed at the U.S. 

Embassy in Kabul, as well as numerous Special Agents, technicians, and analysts on details in 

Afghanistan. Their priorities include conducting detainee interviews and biometric processing; 

providing technical support and intelligence in order to identify trends, target IED makers and enable 

both offensive and defensive counter operations by coalition forces; exploiting the thousands of 

documents seized from Al Qaeda and Anti-Coalition Forces; and providing counterterrorism training. 

The FBI also established a Major Crimes Task Force with Afghanistan, which focuses on Afghan-led 

investigations of corruption, kidnapping, and other serious criminal acts. The FBI has provided 

Special Agents to mentor the Afghan investigators to build their capacity to investigate cases and 

further ROL efforts. 

As of August 2011, ICITAP continues to offer assistance to CJIATF-435, a military led task force 

having command and control of U.S. detention operations and has helped Combined Security 

Transition Command-Afghanistan (CSTC-A) develop a way-forward for the development of the 

CNPA. 

Finally, rotating teams of Deputies from the Special Operations Group (SOG) of the USMS provide 

security to personnel at the CJTF and help to establish a judicial security force for the CNT. The 

Judicial Security Unit (JSU) is expected to be staffed with approximately 1,500 Afghan police and 

will focus their efforts on protecting a wider array of courts and judges throughout Afghanistan. 

Additionally, the SOG USMS provided security design advice for the Counternarcotics Justice Center 

in Kabul, which opened in May 2009. This new facility not only provides a secure environment for 

the daily activities of the CJTF and CNT, but also includes prisoner detention facilities, secure 

courtrooms, and a dining facility for the Afghan security forces and judicial personnel. 

D. Department of Defense 

The Department of Defense (DOD) engages in ROL operations within the full spectrum of 

operations, both by how it engages in offensive and defensive operations and where it engages in 

stability operations. 

The conduct of offensive and defensive operations in accordance with the ROL is not the subject of a 

distinct policy or organization within DOD, but rather a core value of a force committed to 

compliance with both host nation and international law. 

The Department of Defense’s approach to ROL operations (within the context of stability operations) 

can be found in DODI 3000.05, Stability Operations. Pursuant to the legal authority of the Secretary 

of Defense, this Instruction establishes DOD policy on, and responsibilities for, planning, training, 

preparation, conduct, and support of, Stability Operations. It directs that stability operations are to be 

a core U.S. military mission with a 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. 

DODI 3000.05 identifies the ROL as one of four key components of stability operations, stating at 

paragraph 4.d. that “The Department shall assist other U.S. Government agencies, foreign 

41 Most PRTs are staff with contract attorneys hired through the Department of State. 

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governments and security forces, and international governmental organizations in planning and 

executing reconstruction and stabilization efforts, to include ... (3) Strengthening governance and the 

rule of law.” 

The Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (ASD SO/LIC) 

is the lead for DODI 3000.05 implementation across DOD.42 The Office of the Special Coordinator 

for Rule of Law and International Humanitarian Policy (RHP) was established in June 2010. RHP 

worked to offer policy guidance and support to those working in the field, identify best practices and 

lessons learned that can strengthen and guide current and future operations, and integrate ROL 

policies into doctrine, planning, and strategy. In February 2011, RHP established a new DOD-wide 

rule of law working group to strengthen policy coordination on ROL issues. Its purpose was to 

identify and address potential challenges, strengthen lines of communication, and coordinate DOD’s 

response to, and its role within, the USG interagency processes. Since June 2011, this ROL policy 

work is now performed by the, newly formed, Office for the Rule of Law and Detainee Policy (RDP). 

While it is accepted that many stability and reconstruction tasks are more appropriately carried out by 

civilians, this may not always be possible in chaotic environments or when civilian capabilities are 

unavailable. Accordingly, the Instruction describes the R&S undertakings the U.S. military must 

train and equip itself to carry out. These range from rebuilding infrastructure to reforming security 

sector institutions, reviving the private sector, and developing representative government.43 

All of the services responded to the DODI 3000.05 (and its DODD predecessor) by identifying a 

proponent for stability operations initiatives. Within the Army, there are significant restructuring 

initiatives tied to fulfilling the DODI 3000.05 mandate. These include establishing a “division within 

the Army G-3/5 dedicated to stability operations” and expanding the Peacekeeping and Stability 

Operations Institute (PKSOI) at Carlisle Barracks. It also includes establishing the “Culture Center 

within the Army’s Training and Doctrine Command [which] provides exportable training materials 

and mobile training teams to better prepare deploying units to more effectively operate in foreign 

cultures” and creating additional psychological operations and civil affairs billets. The Air Force 

“designated the Director of Operational Plans and Joint Matters as the lead agent for its stability 

operations initiatives” which included creating the Coalition Irregular Warfare Center. The 

Department of the Navy “designated the Deputy Chief of Naval Operations, as the Navy’s Lead 

Officer for Stability, Security, Transition and Reconstruction Operations” and established the Naval 

Expeditionary Combat Command (NECC) which includes the Maritime Civil Affairs Group. Finally, 

the Marine Corps created “the Center for Irregular Warfare, the Center for Advanced Operational 

Culture Learning (CAOCL) and a Stability, Security, Transition and Reconstruction (SSTR) section 

within the Headquarters, U.S. Marine Corps.”44 

Each service has also addressed the DODI 3000.05 requirement to improve military doctrine, 

education and training for stability operations.45 Recent doctrine updates emphasizing stability 

operations include Joint Publication 3-0, Joint Operations, Field Manual 3-0, Full Spectrum 

Operations, Field Manual 3-07, Stability Operations, Field Manual 3-24 / MCWP 3-33.5, 

Counterinsurgency, as well as the reorganization of the Air Force’s doctrinal hierarchy. Field Manual 

1-04, Legal Support to the Operational Army addresses the roles and responsibilities of judge 

advocates in stability operations, as does Field Manual 3.05-40, Civil Affairs Operations and in Joint 

Publication 1-04, Legal Support to Military Operations. DOD’s promotion of the ROL into its 

42 DODI 3000.05, supra note 6, at 7. 43 Id. at 2. 44 Secretary of Defense, Report to Congress on the Implementation of DOD Directive 3000.05 Military Support 

for Stability, Security, Transition and Reconstruction (SSTR) Operations (1 April 2007) [hereinafter Sec Def 

DODI 3000.05 Report]. 

45 Id. at 12-13. 

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doctrine has been integrated into this Doctrine. Joint Publication (JP) 3-07, Stability Operations 

(forthcoming46), and JP 3-24, Counterinsurgency, October 2009, identify the promotion of the ROL 

as an essential component of stability and COIN operations. 

Enhanced educational initiatives include expanding language and cultural skills training and including 

stability operations exercises in the professional military education curriculum for intermediate level 

education as well as at each of the senior service schools. Specifically, SSTR training initiatives 

include: 

•	 an integrated USG pre-deployment training regimen built on Iraq and Afghanistan Provincial 

Reconstruction Team (PRT) training concepts 

•	 a process for DOD to obtain subject matter experts from other USG agencies to support DOD 

training and exercises 

•	 the adjudication of requests for interagency integrated training through a single point of contact in 

each agency 

•	 the development of a USG-wide web-based training knowledge portal that allows participating 

agencies to have visibility to other agencies’ training opportunities.47 

Many of these initiatives have been completed, and all are under way. All the services have also 

incorporated individual48 and collective training on SSTR. The training centers placed additional 

emphasis on SSTR tasks by employing “civilian role players and foreign language speakers to 

replicate indigenous populations, security forces, and representatives from governmental and private 

relief organizations.”49 Ultimately, these updates to unit structure, doctrine, training, and education 

reflect the fact DODI 3000.05 “establishes enduring policies and broad implementing actions that are 

integrated into the Department [of Defense’s] force development mechanisms in a way that balances 

current operational requirements with projected needs and risk parameters.”50 

The purpose of DOD stability operations efforts is to increase security by supporting stability in a 

society in a manner that advances U.S. interests. In the short-term, stability operations aim to provide 

immediate security and attend to humanitarian concerns in regions affected by armed hostilities. The 

long-term goal is to establish an indigenous capacity to sustain a stable, democratic and free-market 

society that abides by the ROL. As such, DOD expects ROL operations to be particularly important 

in the immediate aftermath of major ground combat operations, when it is imperative to restore order 

to the civilian population when the routine administration of the society is disrupted by combat. The 

DOD emphasis in the ROL is to foster security and stability for the civilian population by supporting 

the effective and fair administration and enforcement of justice, preferably by host nation institutions. 

DOD plays a crucial supporting in U.S. Government ROL operations. Its existing efforts include 

both traditional military-to-military engagement and, under special authority in Iraq and Afghanistan, 

field support for stability and COIN operations. At home and overseas, DOD personnel provide 

training in international humanitarian law, building accountable security and justice sectors, civilian 

control of the military, and human rights. 

46 The Joint Staff’s Joint Doctrine Branch is in the process of developing a Joint publication, JP 3-07, “Stability 

Operations,” based in part on U.S. Army Field Manual (FM) 3-07, Stability Operations. 47 Sec Def DODI 3000.05 Report, supra note 44, at 16-7.
 48 Training opportunities include the following: 80 hour modular cultural awareness training program developed
 

by the Army Intelligence Center, online cultural awareness available through Army Knowledge Online, mobile 

training teams on fundamental language and culture “survival skills” provided by the Defense Language
 

Institute. Id. at 18. See also Table 1 of Appendix for ROL-specific training programs and short courses 

available for USG civilians and JAs. 

49 See Sec Def DODI 3000.05 Report, supra note 44.
 50 Id. at 4.
 

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In Iraq and Afghanistan, U.S. Army Civil Affairs and Psychological Operations (USACAPOC) units, 

Judge advocates of all Services, and other Service components such as Civil Affairs and Military 

Police have helped promote respect for and adherence to international human-rights standards, and 

have helped local governments develop effective judicial systems by training judges, prosecutors, 

police, and corrections officials. DOD personnel have worked closely with their interagency 

colleagues in the respective U.S. Embassies and on Provincial Reconstruction Teams (PRTs) to help 

build sustainable legal institutions that will promote a movement towards the ROL. Interagency 

coordination in this area is at a truly dynamic stage, with events in Afghanistan driving that 

dynamism. The creation of a DOD led Rule of Law Field Force – Afghanistan (ROLFF-A) is 

representative of the innovative manner in which DOD is supporting the interagency rule of law 

effort. 

1.	 Judge Advocates 

The full implications for the JAG Corps of DOD’s approach to stability operations remain to be seen. 

However, it is apparent from its conduct of ROL operations in Iraq and Afghanistan that the JAG 

Corps has embraced the challenges that this line of operation entails. Judge advocates’ involvement 

in ROL takes on many roles. These include acting as an adviser to commanders and their staff on 

legal reform initiatives, as an instructor to host nation attorneys on military justice, as a mentor to 

judges and governmental officials, as a drafter of host-nation laws and presidential decrees, and as a 

facilitator at ROL conferences. Specific ROL tasks performed by JAs include: 

•	 Determining which host nation (HN) offices, ministries, or departments have the legal authority 

to evaluate, reform, and implement the law and execute its mandates. 

•	 Evaluating and assisting in developing transitional decrees, codes, ordinances, courts, and other 

measures intended to bring immediate order to areas in which the HN legal system is impaired or 

nonfunctioning. 

•	 Evaluating HN law, legal traditions, and administrative procedures in light of international legal 

obligations and human rights standards and when necessary, providing appropriate assistance to 

their reform. 

•	 Evaluating training given in light of international legal obligations and human rights standards 

and providing assistance to improve training. This training is given to HN judges, prosecutors, 

defense counsel, legal advisors, court administrators, and police and corrections officials. 

•	 When necessary, serving as legal advisors for transitional courts. 

•	 Advising commanders and others on the application of international, U.S. domestic, and HN law 

that is considered in restoring and enhancing ROL in the host nation. 

•	 Advising commanders and U.S., international, and HN authorities on the legality, legitimacy, and 

effectiveness of the HN legal system including its government’s compliance with international 

legal obligations and domestic law. 

•	 Supporting the training of U.S. personnel in the HN legal system and traditions.51 

Further, and to a certain extent it almost goes without saying, because they serve as legal advisors to 

commanders, judge advocates have a special role in assisting U.S. forces to comply with the ROL in 

their own offensive and defensive operations or in joint U.S./host nation operations. 

The JAG Corps has also recognized the importance of the DODI 3000.05 mandated, and strategically 

vital, requirement for interagency coordination and planning in ROL operations. The JAG Corps 

/USC ROLC partnership52 will deliver interagency training for judge advocates and ROL 

51 U.S. DEP’T OF ARMY, FIELD MANUAL 1-04, LEGAL SUPPORT TO THE OPERATIONAL ARMY D-2 – D-3 (April 

15, 2009).

52 See supra note 27. 

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practitioners from, amongst others, the Departments of State and Justice. The intent is that this 

partnership will also develop a web-based repository for ROL practitioners and conduct interagency 

ROL strategic planning. All these initiatives will further the work undertaken by the Judge Advocate 

General’s Legal Center and School (TJAGLCS) through its ROL training course and this Handbook, 

and the ROL instruction for deploying personnel provided at the Brigade Judge Advocate’s Mission 

Primer (BJAMP). 

2.	 Civil Affairs 

Military Civil Affairs (CA) units can also play a key role in building host nation legal capabilities. 

Capable of supporting strategic, operational, and tactical levels of command, CA units assist longterm institution building through “functional specialty area” teams. The CA functional specialty 

areas include ROL, economic stability, governance, public health and welfare, infrastructure, and 

public education and information.53 Civil Affairs doctrine indicates the ROL section has the 

following capabilities: 

•	 Determine the capabilities and effectiveness of the HN legal systems and the impact of those on 

joint force civil military operations (CMO) strategy. 

•	 Evaluate the HN legal system, to include, reviewing statutes, codes, decrees, regulations, 

procedures, and legal traditions for compliance with international standards, and advising and 

assisting the HN and other ROL participants in the process of developing transitional codes and 

procedures and long term legal reform. 

•	 Evaluate the personnel, judicial infrastructure, and equipment of the HN court system to 

determine requirements for training, repair, construction, and acquisition. 

•	 Provide support to transitional justice, to include acting as judges, magistrates, prosecutors, 

defense counsel, legal advisors, and court administrators when required. 

•	 Coordinate ROL efforts involving U.S. and coalition military, other U.S. agencies, 

intergovernmental organizations (IGOs), non-governmental organizations (NGOs), and HN 

authorities. 

•	 Assist the Staff Judge Advocate (SJA) in educating and training U.S. personnel in indigenous 

legal systems, obligations, and consequences. 

•	 Advise and assist the SJA in international and HN legal issues as required. 

•	 Assist the SJA with regard to status of forces agreement (SOFA) and status of mission agreement 

issues. 

•	 Provide technical expertise, advice, and assistance in identifying and assessing indigenous public 

safety systems, agencies, services, personnel, and resources. 

53 JOINT CHIEFS OF STAFF, JOINT PUB. 3-57, CIVIL MILITARY OPERATIONS at I-20 (8 July 2008). Civil Military 

Operations (CMO) are “the activities of a commander that establish collaborative relationships among military 

forces, governmental and nongovernmental civilian organizations and authorities, and the civilian populace in a 

friendly, neutral, or hostile operational area in order to facilitate military operations are nested in support of the 

overall U.S. objectives.” Id at vii. At the operational level, CMO take the form of missions supporting security 

cooperation feature programs to build relationships and mitigate the need for force; improve health service 

infrastructure; movement, feeding, and sheltering of dislocated civilians (DCs); police and security programs; 

building FN government legitimacy; synchronization of CMO support to tactical commanders; and the 

coordination, synchronization, and, where possible, integration of interagency, IGO, and NGO activities with 

military operations.” At the tactical level, CMO include “support of stakeholders at local levels, and promoting 

the legitimacy and effectiveness of U.S. presence and operations among locals, while minimizing friction 

between the military and the civilian organizations in the field. Tactical-level CMO normally are more narrowly 

focused and have more immediate effects. These may include local security operations, processing and 

movement of DCs, project management and project nomination, civil reconnaissance, and basic health service 

support (HSS). 

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•	 Advise and assist in establishing the technical requirements for government public safety systems 

to support government administration (police and law enforcement administration and penal 

system.)54 

Many judge advocates serve in CA units and will be particularly familiar with CA capabilities. Judge 

advocates not part of CA units should seek out available CA resources and expertise whenever 

contemplating a ROL project. 

3.	 Military Police 

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

specifically to operate detention facilities and prisoner of war camps. 

The U.S. military also possesses criminal investigation units, such as the Air Force Office of Special 

Investigations (AFOSI), Naval Criminal Investigative Service (NCIS) and Army Criminal 

Investigation Command (USACIDC). These units provide the full range of investigative capabilities 

comparable to a civilian law enforcement agency, including forensic laboratories, ballistics experts, 

narcotics experts, computer crimes specialists, and polygraphists. 

MPs and investigators deploy in support of ROL missions to train host-nation military personnel in 

the full spectrum of police tasks, including: 

•	 Arrest and interrogation techniques 

•	 Prison security and procedures 

•	 Tactical doctrine 

•	 Crowd control 

•	 Combating organized crime 

•	 Forensics and evidence collection 

•	 Protection of sensitive facilities 

•	 Election security 

•	 VIP security 

The MP community conceives of ROL projects as the restoration of the civil authority triad: judicial 

systems, law enforcement, and penal systems. To assist in the restoration process, the MPs are 

focusing on “police services with a greater emphasis on ROL through the issuance, execution, and 

disposition of warrants, evidence and records as well as detention operations focused to achieve 

uniform effects in transitioning to judicial procedures and oversight, across the theater.” Drawing 

from one of their MP skills, strategic law enforcement operations and training, MPs are filling billets 

within Police Transition / Mentor Teams (PTT / PMT) to train host nation police in apprehension, inprocessing, investigation, adjudication, and incarceration. 

In the area of detention operations, MPs are shifting focus from a law of armed conflict model of 

detain and release to a ROL model based on indictments and convictions. While detention operations 

continue to emphasize proper care and custody of detainees, the ROL model builds on care and 

custody to include population engagement. The population engagement model is a four step process 

involving detention, assessment, reconciliation, and transition. Ultimately, this model defines victory 

as establishing alliances with moderate detainees, empowering moderates to marginalize violent 

extremists, and providing momentum to the process of reconciliation with host nation society. 

As operational environments shift from conflict to order, leaders must maintain awareness of MP 

capabilities to ensure their effective utilization. Typically, within a Brigade Combat Team, there is a 

Provost Marshal cell and a military police platoon within the Brigade Special Troops Battalion. 

54 U.S. DEP’T OF ARMY, FIELD MANUAL 3-05.40, CIVIL AFFAIRS OPERATIONS 2-8 – 2-9 (29 Sept. 2006). 

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These Soldiers offer a range of skills on law enforcement techniques. These range from the ability to 

train on effective tactical site exploitation and handling of evidence to more sophisticated methods of 

investigating complex crimes. As operations shift from active combat to a law-enforcement-intensive 

model, MP organizations can serve as valuable resources. In addition to serving as training resources 

for host nation agencies, they can also provide training to U.S. troops conducting security operations, 

both on how to conduct police-oriented population engagements effectively and on important matters 

such as evidence collection and preservation. These will become increasingly important as the host 

nation judicial system becomes capable of criminalizing insurgent activities. The organic availability 

of MPs, along with their versatility, makes them extremely effective in supporting the ROL. 

4. Defense Institute of International Legal Studies 

In addition to Military Police, Judge Advocates, and Civil Affairs, the Defense Institute of 

International Legal Studies (DIILS) can provide ROL training assistance to host-nation institution 

building. The DIILS’ mission is to provide expertise over a broad range of legal topics of Military 

Law, Justice Systems, and the ROL, with an emphasis on “the execution of disciplined military 

operations through both resident courses and mobile education teams.”55 DIILS, a part of the 

Defense Security Cooperation Agency (DSCA), works with U.S. Embassy Country Teams and host 

nations, through the medium of mobile education teams, resident and other programs, to provide 

timely, effective and practical seminars to lawyers and non-lawyers. The goal is teaching operations, 

including post-conflict reconstruction, equitable and accountable security and justice systems, civilian 

control of the military, human rights and democracy, within the parameters of international law. 

DIILS also offers a ROL short course for foreign military officials at various military schools around 

the U.S. (See Table 2 in Appendix for a URL with more information.) 

5. All Operational Forces 

While judge advocates, Civil Affairs personnel, and Military Police may have specialized skills for 

some specialized roles, ROL practitioners should never forget that all operational forces have a role to 

play in furthering the seven ROL effects. The vital role of every Soldier and Marine is recognized in 

doctrine by DODI 3000.05 and the Field Manual 3-24, Counterinsurgency.

56 OIF and OEF are 

replete with examples of Second Lieutenants giving classes on human rights to Iraqi police57 or 

infantry companies partnering with Iraqi police to maintain security in their communities.58 JAs, 

MPs, and CA personnel should mainstream ROL operations so that all deployed personnel 

participate. If they fail to do so, they will not only miss out on a tremendously powerful resource of 

accomplishing the ROL mission, they also run the risk of losing the command’s attention to ROL as 

merely a “specialized” line of operation. Moreover, it is only the operational forces themselves that 

can further the effects of the ROL by actually observing the ROL—and engaging host nation 

institutions wherever possible—in the conduct of operations. Any approach to ROL that views it as 

the purview of lawyers ignores that, in any society that has some claim to the principle, the ROL is 

claimed not by the lawyers but by the citizenry writ large. 

55 Defense Institute of International Legal Studies website at http://www.diils.org (last visited June 9, 2011).
 56 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 1-131 (15 Dec. 2006). (“Soldiers and
 

Marines help establish HN institutions that sustain that legal regime, including police forces, court systems, and
 

penal facilities”). 

57 See Michael J. Totten, Final Mission Part III, MIDDLE EAST JOURNAL, Feb. 12, 2008, 

http://www.michaeltotten.com/archives/2008/02/the-final-missi-2.php (last visited June 9, 2011).
 58 See Herschel Smith, Operation Alljah and the Marines of 2nd Battalion, 6th Regiment, THE CAPTAIN’S 

JOURNAL, http://www.captainsjournal.com/2007/08/22/operation-alljah-and-the-marines-of-2nd-battalion-6thregiment/ (last visited June 9, 2011).
 

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E. United States Institute of Peace 

The United States Institute of Peace (USIP) is an independent, nonpartisan, federal institution 

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

conflicts, promote post-conflict stability and democratic transformations, and increase peace building 

capacity, tools, and intellectual capital worldwide. USIP does this by empowering others with 

knowledge, skills, and resources, as well as by its direct involvement in peace building efforts around 

the globe. 

To achieve these 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 recently Afghanistan, Kosovo, Iraq, Liberia, Nepal, 

Nigeria, Philippines, Sudan, the Palestinian Territories, and Uganda. USIP's Academy for 

International Conflict Management and Peacebuilding conducts training on-site at the Institute's 

Washington headquarters, in the field, and on-line in several languages. The classes can be geared 

toward U.S. practitioners or foreign officials. One such class for U.S. ROL attorneys is the Rule of 

Law Practitioner Course offered multiple times a year on their Washington, D.C. headquarters for 

five days. This course, as a comprehensive introduction to ROL assistance in conflict-afflicted states, 

provides practitioners with skills and knowledge to effectively promote ROL. For more information, 

follow the URL in Table 1 of Appendix. 

With many roles and missions, USIP is heavily involved in promoting the ROL. The USIP premise is 

that adherence to the ROL 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. In other words, the ROL is not only about codes, courts, 

and policy, but includes also the relationship between citizens and the law within the context of a 

country’s recent history and current political, social, and economic environment. In this regard, USIP 

also focuses on traditional or community based justice systems and their relationship to formal 

institutions.59 

According to USIP, establishing the ROL is a critical objective in any post-conflict effort. The focus 

of the initial phase is on security and stopping criminal behavior. Post conflict states must provide 

their populations with security, stability, personal safety, and the transparent and accountable law 

enforcement and judicial processes that provide the same protections and penalties for all citizens. At 

the same time, the combination of national and international actors that shape a new government and 

a new state after conflict must be able to address the legacy of past violence and abuse that often 

accompanies violent conflict. They must also look ahead to developing effective domestic 

mechanisms and institutions that are capable of combating impunity, corruption, and serious crimes, 

while at the same time delivering justice, once international security assistance is withdrawn. 

1. USIP Activities in Iraq and Afghanistan 

USIP has focused on five major areas to help build ROL in Iraq. First, USIP provided substantial 

assistance during the constitution-making process and constitutional review. This assistance included 

convening meetings of senior legal advisors which allowed Iraqi government officials the chance to 

talk with representatives from South Africa, Afghanistan, Albania, East Timor, Switzerland, 

Germany, Nigeria, Brazil, Cambodia and Rwanda on the their constitutional frameworks, 

arrangements and institutions, and constitution-making experiences. Second, USIP worked to 

strengthen and build capacity within the Iraq judiciary. USIP helped create the Iraqi Committee on 

Judicial Independence, an NGO dedicated to working with government and civil society to promote 

59 See CUSTOMARY JUSTICE AND THE RULE OF LAW IN WAR-TORN SOCIETIES (Deborah Isser ed., 2011, U.S. 

Institute of Peace Press). 

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judicial capacity and independence. USIP also convened officials of the federal and Kurdistan 

regional judiciaries to resolve challenges to access to justice created by the dual judicial system. 

Third, USIP worked with judicial, ministerial, parliamentary, and security officials, as well as 

members of civil society, to design and implement policies to address property claims of Iraq’s 4 

million displaced citizens. USIP has been working with minority leaders through a series of 

dialogues to identify and address challenges to Iraq’s minority communities. Finally, USIP 

emphasized the importance of transitional justice by providing advice on the establishment of the 

Iraqi Special Tribunal and disseminating a film entitled Confronting the Truth: Truth Commissions 

and Societies in Transition to stress the importance of dealing with the former regime’s human rights 

abuses. 

USIP has also been heavily involved in ROL reform in Afghanistan since 2002. USIP projects in 

Afghanistan began with developing a framework for establishing ROL in Afghanistan after the Bonn 

Agreement. USIP has also worked since 2002 on studying how traditional dispute resolution 

mechanisms are used to resolve civil and criminal conflicts. This has led to a series of district-level 

pilot projects that explore ways to better link the formal and informal justice sectors and inform a 

national policy dialogue on the subject. USIP has also promoted accountability and good governance 

by supporting the Afghan government and leading NGOs to implement the national Action Plan on 

Peace, Justice, and Reconciliation. USIP has played an instrumental role on promoting sound vetting 

policies, most notably drafting guidelines used for barring members of illegal armed groups from the 

2009 elections. USIP’s comparative research led to a series of consultations with Afghan justice 

officials on criminal law reform and combating serious crimes in Afghanistan. Finally, USIP has 

supported research on constitutional analysis and interpretation in Afghanistan, bringing experts in a 

variety of constitutional systems to Afghanistan to provide comparative examples of Constitutional 

implementation. USIP frequently publishes Special Reports and shorter Peace Briefs on all of its 

Afghanistan work, and hosts a regular Afghanistan Working Group series of public discussions in 

Washington on Afghanistan policy. 

Extremely useful for JAs and other legal practitioners in Iraq and Afghanistan may be the 

International Network to Promote the Rule of Law (INPROL) (www.inprol.org) set up by USIP. 

Established in 2007, INPROL is a global, online community of practice comprised of some 1,600 

ROL practitioners from 128 countries and 300 organizations. Members come from a range of relevant 

disciplines and backgrounds, and include, police officers, judges, lawyers, prosecutors, corrections 

officials, and judicial administrators. INPROL aims to assist specialists in their efforts to prevent 

conflict and stabilize war-torn societies. It is a unique reach-back mechanism for those who are 

deployed in peacebuilding missions, helping them solve the immediate problems they face in theater. 

It seeks to ensure that knowledge and expertise is shared among the community and that “lessons 

learned” in one post-conflict state become “lessons applied” in others. In addition, it is a valuable 

capacity development resource that allows practitioners to learn, innovate and develop professionally. 

Participation in the network is membership based. Applicants may apply online at www.inprol.org. 

III. International Actors 

The nature of the level of international involvement largely depends on the purpose and scope of the 

mission. Even a unilateral, nation-led intervention by the U.S. will involve some level of 

coordination with coalition countries, the United Nations, and non-governmental organizations. 

Thus, ROL operations will require some level of integration of national and international efforts. 

Most major post-conflict operations will involve several international actors to implement effective 

ROL programs. These international entities will undoubtedly involve major powers, such as the 

United States, United Kingdom, France, Germany, China, and Russia. Other factors to consider are 

the effects of activities of regional or neighboring powers, for example Pakistan’s influence in 

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Afghanistan, or Iran’s involvement in Iraq. Moreover, large international endeavors will require the 

commitment of major financial donors, such as international financial institutions. As is repeated 

throughout this Handbook, it, of course, goes without saying that the host-country itself should have 

ownership over post-conflict development and reconstruction, including ROL. Each of these actors 

will have different goals and different priorities. Judge advocates must be able to work with these 

layers of organizational machinery in order to garner greater legitimacy, widen the burden sharing, 

and earn local acceptance. It is important to remember, however, that most USG relationships with 

international actors are a matter of U.S. foreign policy and are consequently managed by DOS; 

coordination with that agency is critical whenever attempting to work with international 

organizations. 

There are some restrictions as to the level of involvement by international actors. International 

participation in the planning and implementation of ROL programs will likely involve an invitation 

from the legitimate host-country political leader, and/or a United Nations Security Council mandate 

that provides international actors with the requisite legal authority to assist the host-country. As to 

the latter situation, an international mandate will generally define the scope of intervention: from 

providing for the lead on ROL assistance efforts, to supporting national actors in implementing 

transitional legal reform, to assisting in training and mentoring governmental and non-governmental 

actors on the ROL, to providing resources and monitoring the situation. 

A. United Nations 

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

period by helping to rebuild the basic foundations of a secure, functioning state in accordance with 

international human rights standards. The United Nations has a widely accepted legitimacy and 

authority and its actions, by definition, are based on approval and funding by its Member States (even 

those opposed to the intervention in question). 

The UN Security Council may make decisions to intervene in a state without its consent. The 

Security Council takes all decisions by qualified majority; although five of its members (United 

States, United Kingdom, France, China, and Russia) have the capacity to block substantive decisions 

unilaterally. Once the Security Council determines the purpose of a mission and decides to launch it, 

it leaves further operational decisions largely to the Secretary-General and his staff, at least until the 

next Security Council review, which is generally six months thereafter. 

UN peace operations and post-conflict operations can undertake a broad range of tasks, as mandated 

by the UN Security Council, to support the implementation of an agreed peace process. These 

include: 

•	 Helping the parties maintain stability and order 

•	 Helping the state re-establish its authority and secure its monopoly over the legitimate use of 

force 

•	 Supporting the emergence of legitimate political institutions and participatory processes to 

manage disputes 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 ROL 

•	 Providing, on an exceptional basis, 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 U.S. permanent 

representative (PERMREP) to the UN, who has the rank and status of ambassador extraordinary and 

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plenipotentiary. A military assistant assists the U.S. PERMREP at the U.S. Mission to the UN by 

coordinating appropriate military interests primarily with the UN Office for the Coordination of 

Humanitarian Affairs (UNOCHA) and UN Department of Peacekeeping Operations (UNDPKO). 

The UN normally authorizes peace enforcement (without the consent of the host nation) or 

peacekeeping (with the consent of the host nation) operations through the adoption of a resolution by 

the Security Council setting the terms of its mandate. Mandates are developed through a political 

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

operations, U.S. forces implement UN mandates that contain a U.S. military component through 

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

political mandates undergo conversion to workable military orders. 

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

the UNDPKO serves as the headquarters component during contingencies involving substantial troop 

deployments. UNOCHA is a coordinating body that pulls together the efforts of numerous 

humanitarian/relief organizations and is the vehicle through which official requests for military 

assistance normally occur. 

Under the ultimate authority and direction of the Secretary-General of the United Nations, 

responsibility for the overall coordination and coherence of ROL within the United Nations rests with 

the Rule of Law Coordination and Resource Group, supported by the Rule of Law Unit and chaired 

by the Deputy Secretary-General. Members of the Group are the Department of Political Affairs, the 

Department of Peacekeeping Operations, Office of the High Commissioner for Human Rights, the 

Office of Legal Affairs, United Nations Development Programme, the Office of the United Nations 

High Commissioner for Refugees, the United Nations Children's Fund, the United Nations Entity for 

Gender Equality and the Empowerment of Women and the United Nations Office on Drugs and 

Crime. The Group serves as a UN Headquarters coordination body and the implementation of the 

operational mandates remains with the individual members of the Group.60 

Field level coordination is normally determined on an ad hoc basis, depending on which organization 

is playing the major role. The United Nations Office of the High Commissioner for Refugees, the 

World Food Program, and UNDPKO are often the logical candidates. UNOCHA may deploy a field 

team to coordinate foreign humanitarian assistance or the Emergency Relief Coordinator may 

designate the resident UN coordinator as Humanitarian Coordinator. 

The UN also funds programs for educating both ROL practitioners and for the Host Nation. 

UNDPKO offers the Rule of Law Training Programme for Judicial Affairs Officers in various parts 

of the world twice a year for six days.61 Further, the Global Programme on Strengthening Rule of 

Law in Conflict and Post-Conflict Nations provides operational, technical and financial support to the 

host nation. 

One of the first tasks for a judge advocate conducting ROL operations should be to become familiar 

with the various components of the UN mission in country in order to understand the types of 

activities already underway or likely to be undertaken. Further cooperation with international 

institutions engaged in ROL operations in order to identify potential partners or to develop a common 

strategy should be coordinated with the Country Team or DOS. 

60 For further information, see, the DPKO Justice and Corrections Newsletter published for the first time in May 

2011 by the Criminal Law and Judicial Advisory Service (CLJAS) of the Office of Rule of Law and Security 

Institutions (OROLSI) in the Department of Peacekeeping (contact dpko-cljas@un.org) and 

http://www.un.org/en/peacekeeping/issues/ruleoflaw/ (last visited July 27, 2011). 61 See Table 1 of Appendix. 

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B. International Monetary Fund 

The International Monetary Fund (IMF) is an independent international organization of 186 member 

countries.62 Under its Articles of Agreement,63 it was established in 1946 with a mandate, among 

other things, to promote international monetary cooperation, facilitate the expansion and balanced 

growth of international trade, promote market exchange stability and orderly exchange arrangements, 

and assist in correcting balance of payments problems. 

In pursuing its mandate, the Fund has emphasized the promotion of good governance among its 

membership. In this regard, in September 1996, the IMF’s policy advisory body, the Interim 

Committee,64 issued a declaration entitled Partnership for Sustainable Global Growth.65 The 

declaration emphasized that “promoting good governance in all its aspects, including ensuring the 

ROL, improving the efficiency and accountability of the public sector, and tackling corruption” was 

an essential element of a framework within which economies can prosper. The IMF Executive Board 

followed up in 1997 with a Guidance Note on the role of the Fund in governance issues.66 The role 

of the IMF, however, is limited to economic aspects of good governance that could have a significant 

macroeconomic impact or that could impair the ability of the authorities to credibly pursue policies 

aimed at external viability and sustainable growth.67 

In light of the foregoing, the IMF has a number of initiatives. The IMF encourages member countries 

to adopt internationally recognized standards and codes that cover the government, the financial 

sector, and the corporate sector. The IMF has also developed its own transparency codes, in 

particular the Code of Good Practices in Fiscal Transparency and the Code of Good Practice on 

Transparency in Monetary and Financial Policies. Additionally, to safeguard its financial resources, 

the IMF assesses the control, accounting, reporting and auditing systems of central banks of countries 

to which it lends money. Further, the IMF emphasizes the development and maintenance of a 

transparent and stable economic and regulatory environment, the need for adequate systems for the 

management and tracking of public expenditures, and adherence to international standards on the 

combating of money laundering and terrorist financing. In furtherance of these goals, the IMF 

provides both policy and technical advice, often in the context of an economic program supported 

with Fund financial resources.68 

1. IMF Support to Afghanistan 

The IMF became involved in Afghanistan in 2002, sending staff teams to assist in rebuilding 

economic institutions and provide advice to the government on macroeconomic policy and reform. 

The relationship strengthened in 2004 with a staff monitored program that established a record of 

accomplishment for a full program supported by the Poverty Reduction and Growth Facility 

(converted into the Extended Credit Facility (ECF)) that began in 2006. 

The ECF-supported program aims to continue the process of rebuilding key economic institutions, 

putting public finances on a sustainable path, and laying the foundation for economic stability and 

low inflation, sustained growth, and poverty reduction. A key long-run objective of the program is 

62 The IMF has a relationship with the United Nations, the terms of which are defined in the 1947 “Agreement
 

Between the United Nations and the International Monetary Fund.” 

63 The agreement is available at http://www.imf.org/external/pubs/ft/aa/index.htm (last visited June 9, 2011).
 64 This committee is now known as the International Financial and Monetary Committee (IMFC). 65 More information on the declaration is available at http://www.imf.org/external/np/sec/nb/1997/nb9715.htm
 

(last visited June 9, 2011).

66 See “The Role of the Fund in Governance Issues—Guidance Note,” available at
 

http://www.imf.org/external/np/sec/nb/1997/nb9715.htm (last visited June 9, 2011).
 67 Id. 68 Id. 

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also to set the basis for higher domestic revenues and reduce Afghanistan’s heavy dependence on aid. 

The program addresses these goals by supporting reforms and governance enhancements in tax and 

customs administration, strengthening treasury and central bank operations, and reducing risks and 

improving the transparency of key public enterprises.69 

Satisfactory performance under the program and other conditions for debt relief allowed the 

Executive Boards of the IMF and the World Bank to give the go ahead for debt relief from key 

creditors of Afghanistan under the Heavily Indebted Poor Countries (HIPC) Initiative. Debt relief 

from key creditors (especially Russia) will lead to a 96 percent reduction in Afghanistan’s 2006 stock 

of external debt of nearly $12 billion.70 Under the three-year ECF arrangement $120 million has 

been disbursed. 

2. IMF Support to Iraq 

The IMF has been closely engaged with Iraq since 2003. Initial work focused on providing policy 

advice, mainly on monetary and fiscal policies, and technical assistance to rebuild essential economic 

institutions. In September 2004, the IMF approved Emergency Post Conflict Assistance for Iraq, 

which—in combination with a debt sustainability analysis—paved the way for an agreement with 

Paris Club creditors, providing substantial debt relief. Since then, Iraq successfully completed two 

(precautionary) Stand-By Arrangements (SBA). The main objective was to achieve macroeconomic 

stability, promote growth, and continue with the process of structural and institutional reform. The 

last precautionary SBA expired on March 18, 2009.71 

On February 24, 2010, the IMF’s Executive Board approved a new two-year (later extended by 5 

months) SBA in the amount of $3.6 billion, as the Iraqi economy was severely affected in 2009 by the 

drop in international oil prices. The new program has been designed to provide a sound 

macroeconomic framework during a period of high economic and political uncertainty. The new 

program will also help to move forward the structural reform agenda, which focuses on modernizing 

Iraq’s public financial management to improve the allocation, execution, transparency, and 

accountability of the mobilization and use of public resources.72 

C. World Bank 

The World Bank is an independent specialized agency of the UN.73 Since its inception in 1944, the 

World Bank expanded from a single institution to an associated group of coordinated development 

institutions. The Bank’s mission evolved from a facilitator of post-war reconstruction and 

development to its present day mandate of worldwide poverty alleviation. 

The World Bank is a vital source of financial and technical assistance to developing countries around 

the world. The World Bank is not a bank in the common sense. Rather, it consists of two unique 

development institutions: the International Bank for Reconstruction and Development (IBRD) and the 

International Development Association (IDA). Each institution plays a different but supportive role 

in its mission of global poverty reduction and the improvement of living standards. The IBRD 

69 Id. 70 Id. 71 IMF, Program Note “Iraq,” last updated: March 31, 2011, available at
 

http://www.imf.org/external/np/country/notes/iraq.htm (last visited July 28, 2011). 

72 IMF Press Release No. 10/60 of February 24, 2010, available at 

http://www.imf.org/external/np/sec/pr/2010/pr1060.htm (last visited June 9, 2011).
 73 See The World Bank, “United Nations,” (June 30, 2003), 

http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,contentMDK:20040610~menuPK:41691~
 

pagePK:43912~piPK:44037,00.html (last visited July 28, 2011). 

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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, interest-free credit, and 

grants to developing countries for education, health, infrastructure, communications, and many other 

purposes. 

1. Rule of Law and Development 

The World Bank’s overarching mission is to reduce poverty.74 Over the past two decades, the Bank 

has promoted adherence to the ROL as a fundamental element of economic development and poverty 

reduction, given that the absence of well-functioning law and justice institutions and the presence of 

corruption are oft-cited constraints to economic growth and to the sustainability of development 

efforts.75 A well-functioning legal and judicial system is critical not only as an end in itself, but also 

as a means of facilitating the achievement of other development objectives.76 The importance of a 

sound justice sector to development is illustrated in cross-country data sets such as the World Bank’s 

Country Policy and Institutional Assessment Indicators77 and the World Bank Institute’s Governance 

Indicators.78 The findings of those analyses demonstrate the correlation between deficiencies in the 

ROL and negative economic and social development.79 

Thus a significant number of Bank loans contain justice reform activities or components.80 This 

focus reflects an understanding by the Bank and its member countries that the ROL and justice are 

crucial to both growth and equity in countries throughout the world.81 

Good governance and anticorruption efforts are an increasingly important focus of the World Bank’s 

work.82 Weak, corrupt, inaccessible, or untrustworthy justice sector institutions enable corruption 

and injustice.83 Fostering change in the justice sector requires long-term strategies that focus not only 

on the supply side but also on the demand side to strengthen public recourse to justice.84 Greater 

transparency in the courts—through streamlined procedures, better application of the law, and 

improved business processes—increases unbiased legal information and public access to laws and 

regulations for individuals and businesses alike.85 

74 See The World Bank Group, www.worldbank.org (last visited June 9, 2011).
 75 See WORLD BANK LEGAL VICE PRESIDENCY, INITIATIVES IN JUSTICE REFORM (2009), at p. 1­

6, available at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/JRInitiativestext2009.pdf
 

(last visited July 11, 2011). Additional information on justice reform topics, and links to World Bank projects, 

can be found on the Law and Justice Institutions page of the World Bank’s Web site at www.worldbank.org/lji
 

(last visited July 11, 2011).

76 Id. 77 The World Bank, IDA Resource Allocation Index (IRAI) – 2010 [hereinafter World Bank IRAI], available at 

http://go.worldbank.org/S2THWI1X60 (last visited June 9, 2011).

78 The World Bank, Governance and Anti-corruption, available at 

http://www.worldbank.org/wbi/governance/govdata/ (last visited June 9, 2011). 79 World Bank IRAI, supra note 75. 80 Id. 81 Id. 82 Id. 83 Id. 84 Id. 85 Id. 

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2. Justice Reform Projects 

The World Bank provides significant financial and technical assistance for justice reform to 

developing countries around the world through two of its five institutions—the aforementioned IBRD 

and IDA—by investment loans, development policy loans, and several types of grants. 

Justice reform programming is a relatively new and developing focus of World Bank assistance. 

Initially, the Bank focused on working with client countries to improve commercial aspects of justice 

and support changes to the legal framework in order to improve the business environment. This work 

remains an important part of the Bank’s justice portfolio. In subsequent years, and at the request of 

client countries, the Bank began to work with countries on institutional capacity building in the 

judiciary more broadly as an aspect of public sector reform. Three general themes emerge as 

common elements in World Bank justice reform assistance: (1) court management and performance, 

(2) access to justice, and (3) information and education.86 

The World Bank funds numerous programs to address the needs of local and state governance 

including any ROL needs. For more information, follow the URL in Table 2 of Appendix B. 

3. Projects in Afghanistan and Iraq 

As of 8 Aug 2011, the World Bank was supporting 116 different projects in Afghanistan. Some of 

them can be considered as supporting the establishment of the ROL, of which the “Judicial Sector 

Reform Project” (with a grant of $27.75 million) is the most significant. The project’s objective is to 

enhance the capacity of the justice sector institutions to deliver legal services. It comprises three 

components: (1) enhancement of the capacity of legal institutions; (2) empowerment of the people; 

and (3) strengthening of implementation capacity. The first component includes activities to improve 

strategic management of human capital and physical infrastructure, increase the skills of justice sector 

professionals, and provide rapid information, communications, and technology enhancements. The 

second component will improve legal awareness, as well as the capacity to provide legal aid 

throughout the country. The third component will provide support to Afghan justice sector 

institutions to implement the National Justice Sector Strategy and Program. 

The World Bank supports 34 projects in Iraq,87 supporting the development of its financial 

institutions, healthcare and education. These efforts hopefully will merge into ongoing ROL 

initiatives. As noted above, economic stimulus can also help drive changes in the ROL. 

D. The North Atlantic Treaty Organization 

The North Atlantic Treaty Organization (NATO) is an international organization88 chartered on the 

North Atlantic Treaty signed on 4 April 1949 in Washington D.C. by the U.S. and 11 other 

countries.89 Today, NATO consists of 28 Member States,90 including most of the Western and 

Eastern European States. 

86 Id. Detailed information about projects, grants, and components is available at the World Bank’s website at 

www.worldbank.org (last visited July 28, 2011). Additional information on justice reform topics, and links to 

World Bank projects, can be found on the Law and Justice Institutions page of the World Bank’s Web site 

available at www.worldbank.org/lji (last visited June 9, 2011). 87 Id. 88 NATO is a consensus based international organization, with decision making powers being reserved to the 

North Atlantic Council (NAC), a body that consists of representatives of the Member States. 

89 The Washington Treaty was signed–apart from the USA–by Belgium, Canada, Denmark, France, Iceland, 

Italy, Luxembourg, the Netherlands, Norway, Portugal, and the United Kingdom. 

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NATO is an intergovernmental military alliance which constitutes a system of collective defense 

whereby its Member States agree to mutual defense in response to an attack by any external party (see 

art. 5 of the NATO Treaty). To date, NATO has only invoked Article 5 once: on 4 October 2001 in 

response to the terroristic attacks of 11 September 2001. 

Despite its nature as a system of collective self-defense (see also art. 52 of the UN Charter), NATO 

conducts various military operations within the context of the UN peace-keeping and peaceenforcement framework. Apart from situations of collective self-defense and from the controversially 

discussed exception of Operation Allied Force in Kosovo 1999 (24 March – 10 June 1999), NATO 

typically acts on the basis of UN Security Council authorizations pursuant to arts. 39, 41, and 42 of 

the UN Charter. 

Although NATO has historically tended not to engage in direct ROL endeavors, through its training 

mission support in Iraq (NTM-I) and Afghanistan (NTM-A), its counter piracy operations off the 

Horn of Africa and, more recently (as of 9 June 2011) its NATO Rule of Law Field Support Mission 

(NROLFSM) in Afghanistan, its contribution to the ROL writ large is significant.91 By way of 

example, NTM-A/CSTC-A Coalition JAs work closely as advisors/mentors for senior leadership of 

the ANA and ANP. Senior Coalition JAs at Camp Eggers, Kabul, provide one-on-one counsel and 

advice to the Judge Advocate General of the ANA, the general counsel for the Afghanistan Ministry 

of Defence, leadership of the ANA’s Training and Education Command (ANATAC) and other ANA 

and ANP senior leaders and staff elements. Working under the auspices of NTM-A/CSTC-A, 

coalition judge advocates also comprise an Operational Mentor and Liaison Team that directly 

supports the leadership and faculty of the ANA’s Legal School. Formally established in 2010, the 

ANA Legal School (which is currently located at the Kabul Military Training Center) provides advice 

on, amongst other matters, school management, curriculum development, instruction techniques and 

logistics support. 

E. Non-Governmental Organizations 

Non-governmental organizations (NGOs) are playing an increasingly important role in the 

international arena.92 Working alone, alongside the U.S. military, with other U.S. agencies, or with 

coalition partners, NGOs are assisting in all the world’s trouble spots where there is a need for 

humanitarian or other assistance. NGOs may range in size and experience from those with 

multimillion dollar budgets and decades of global experience in developmental and humanitarian 

relief to newly created small organizations dedicated to a particular emergency or disaster. NGOs are 

involved in a diverse range of activities, with an increasing number now focusing on ROL endeavors. 

90 As of 10 June 2011 NATO Member States are: Albania, Belgium, Bulgaria, Canada, Croatia, Czech 

Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxemburg, 

the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, United Kingdom and 

the USA. 

91 For further information on NROLFSM, see 

http://www.nato.int/nato_static/assets/pdf/pdf_2011_06/20110609-Backgrounder-Rule_of_Law-en.pdf. In 

Afghanistan, in addition to NTM-A and NROLFSM, there are numerous examples of ISAF component led 

ROL initiatives. E.g. the Australian Defence Force’s Special Operations Task Group (SOTG) training regime 

for Afghan police, prosecutors and judges to bolster the ROL in southern Afghanistan. Editors note: The fact 

that, notwithstanding NATO’s political difficulties with ROL specific operations, or those that carry ROL 

nomenclature, its personnel are involved in such operations is an example of how operational necessity can, 

sometimes, overcome political myopia or risk aversion. 

92 See Lynn Lawry, Guide to Nongovernmental Organizations for the Military (Center for Disaster and 

Humanitarian Assistance Medicine 2009), available at http://www.fas.org/irp/doddir/dod/ngo-guide.pdf (last 

visited June 9, 2011). 

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The extent to which specific NGOs are willing to cooperate with the military can vary considerably. 

In general, NGOs desire to preserve the impartial non-governmental character of their operations, at 

times accepting only minimal or no assistance from the military. While some organizations will seek 

the protection afforded by armed forces or the use of military transport to move relief supplies to, or 

sometimes within, the operational area, others may avoid a close affiliation with military forces, 

preferring autonomous, impartial operations. This is particularly the case if those forces are 

conducting combat operations in the operational area. 

Many NGOs consider their perceived impartiality as their greatest security asset. Any activity that 

might strip an NGO of its appearance of impartiality, such as close collaboration with one particular 

military force, is likely to be viewed as undermining that asset. NGOs may also avoid cooperation 

with the military forces out of suspicion that the military intends to take control of, influence, or even 

prevent their operations. Commanders and their staffs should recognize these concerns, whether valid 

or not, and where necessary, consult these organizations, along with the competent national or 

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

cooperation.93 

NGOs frequently act to ensure military actions in relief and civic actions are consistent with the 

standards and priorities agreed on within the civilian relief community. The extensive involvement, 

local contacts, and experience gained in various nations make private NGOs valuable sources of 

information, that they are sometimes willing to share on a collegial basis, about local and regional 

affairs and civilian attitudes. 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. Establishing mechanisms by 

which NGOs and the military can work effectively, in harmony, within any given operational area is 

an essential element of successful ROL operations, and one that is likely to make the overall ROL 

product more effective. 

A judge advocate’s ROL planning should include the identification of points of contact (POCs) with 

NGOs that will operate in the area. Frequently, other organizations, such as CA Units and PRTs, in 

the area will already have identified those POCs and have working relationships with them and will 

be able to provide assistance in contacting and working with, or in the same battlespace as, NGOs. 

The creation of a framework for structured civil-military interaction, which is one of the primary 

functions of Civil Affairs,94 allows the military and NGOs to meet and work together in advancing 

common goals in ROL missions. Accordingly, a climate of cooperation between NGOs and military 

forces should be the goal. It is important to remember, though, that commanders are restricted in 

what types of support they can provide non-federal entities such as NGOs and, as such, JAs should 

ensure that any support to NGOs complies with statutory and regulatory restrictions.95 

Doctrinally, relationships between the military and civilian organizations such as NGOs and 

intergovernmental organizations (IGOs) are focused in three formal organizations. These 

organizations and their functions are as follows: 

93 See the following guidelines, which have been endorsed by the US military and many US NGOs: USIP, 

Guidelines for Relations Between US Armed Forces and Non-Governmental Humanitarian Organizations in 

Hostile or Potentially Hostile Environments, available at 

http://www.usip.org/files/resources/guidelines_handout.pdf (last visited June 9, 2011). 

94 FM 3-05.40, supra note 69, at 1-16 (“The primary function of all Army CA units is to support the warfighter 

by engaging the civil component of the battlefield. CA forces interface with IPI, IGOs, NGOs, other civilian 

and government organizations, and military forces to assist the supported commander to accomplish the 

mission”). 

95 See e.g. U.S. DEP’T OF DEFENSE, DIR. 5500.7-R, JOINT ETHICS REGULATION. 

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•	 Humanitarian Operations Center (HOC) – A senior level international and interagency 

coordination body that seeks to achieve unity of effort among all participants in a large foreign 

humanitarian assistance operation. Normally, HOCs are established during an operation under 

the direction of the government of the affected country or the UN, or possibly under the Office of 

U.S. Foreign Disaster Assistance (OFDA). Because the HOC operates at the national level, it 

typically consists of senior representatives from the affected country, the U.S. embassy or 

consulate, joint forces, OFDA, NGOs, IGOs, and other major organizations involved in the 

humanitarian assistance operation. 

•	 Humanitarian Assistance Coordination Center (HACC) – Created by the combatant command’s 

crisis action organization to assist the interagency, IGOs, and NGOs to coordinate and plan 

foreign humanitarian assistance. Normally, the HACC is a temporary body that operates during 

the early planning and coordination stages of the operation. Once a Civil-Military Operations 

Center (CMOC) (see below) or HOC is in place, the role of the HACC diminishes, and its 

functions are accomplished through the normal organization of the combatant command’s staff 

and crisis action organization. 

•	 Civil-Military Operations Center (CMOC) – Normally, the CMOC is a mechanism for the 

coordination of civil-military operations that can serve as the primary coordination interface 

providing operational and tactical level coordination between the Joint Force Commander and 

other stakeholders. Members of a CMOC typically include representatives of U.S. military 

forces, other government agencies, IGOs, the private sector, and NGOs.96 

F. Coalition Partners 

Given the importance of coalition operations, it is essential for JAs to understand the philosophy, 

goals, and structure of coalition forces, including their national approaches to military operations and 

their national responsibilities for ROL related activities, and in particular nation building activities.97 

Those approaches and responsibilities vary between coalition partners. 

Some coalition partners view ROL programs in a different light to, for example, civilian 

reconstruction and economic support,98 their use of military resources being used only to end 

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

means.99 Specific coalition forces may be more, or less, reluctant to initiate laws, courts, and police 

reforms, than others, instead preferring to support host government reform efforts beneficial to the 

establishment of the ROL.100 

France, for example, sees its contribution to the achievement of the ROL through the provision of 

three kinds of assistance: (1) training (of police officers and judges); (2) support in the field of 

legislation reform and updating (e.g., support in establishing codes); and (3) making available 

documentation of a legal or technical nature.101 A practical example of this contribution is its 

96 JOINT PUB. 3-57, supra note 68, at II-26.
 97 See CENTER FOR LAW AND MILITARY OPERATIONS, FORGED IN THE FIRE 312 (2006) [hereinafter FORGED IN 

THE FIRE].

98 See, e.g., 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). 99 See German Action Plan, Civilian Crisis Prevention, Conflict Resolution and Post-Conflict Peacebuilding 10
 

(2004), available at http://www.auswaertiges-amt.de/diplo/de/Aussenpolitik/Themen/Krisenpraevention/
 

Downloads/Aktionsplan-En.pdf (last visited June 9, 2010) [hereinafter Action Plan].
 100 Id. at 58. See also French Ministry of Foreign Affairs, Direction Générale de la Coopération Internationale
 

et du Développement (French International Cooperation) 31 (2005). 

101 Id. at 32-33. 

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framework-nation role for the institution of the Afghan Parliament. This program provides training to 

Afghan parliamentarians. 

The German approach to ROL operations in post-conflict areas focuses on technical and logistics 

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

medical services.102 For example, since January 2009, German police mentoring teams have helped 

develop the Afghan National Police in Northern Afghanistan through the Focused District 

Development program (FDD), which trains Afghan police units on a district by district level. 

Because of different approaches, the structure of coalition forces tasked with ROL issues is also 

different. The focus on civilian reconstruction work done coupled with the development of the ROL 

is linked for most coalition partners through an inter-ministerial approach. For some coalition 

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

civilian teams, such as provincial reconstruction teams. It also incorporates ROL work streams into a 

wider strategic framework. 

The U.K.’s recently released Building Stability Overseas Strategy (published on 19 July 2011) 

outlines how the U.K. will help to stop serious conflict from taking hold in unstable countries. Of 

particular note for the ROL practitioner is its emphasis on investing in “upstream prevention”: 

helping to build strong, legitimate institutions and robust societies in fragile, and often pre conflict, 

countries that are capable of managing tensions and shocks so there is a lower likelihood of instability 

and conflict.103 

An understanding of who does what in the coalition partner’s structure will facilitate enhanced 

efficacy. For instance, when working with the U.K. on ROL issues, it is more likely that JA ROL 

practitioners will interact with civilians from the U.K.’s Department for International Development 

(DFID) or members of the interagency (or “cross Government”) Stabilisation Unit (SU) than with, 

say, British Army legal advisors.104 While a JA’s initial contact with DFID or SU personnel may 

come via their connections with a U.K. military legal advisor, it is unusual for that military advisor to 

work with solely ROL issues. Within the U.K. military, the Military Stabilisation Support Group 

(MSSG) delivers civil effect and civil-military co-operation (CIMIC) training, as well as deploying 

Military Stabilisation Support Teams (MSSTs).105 

DFID’s development expertise is recognized throughout the world, and its methodology fully 

recognizes the importance of security, law and justice as core state functions. DFID’s historic, but 

often extant, practice papers, policy and research often provide useful reference points for future work 

and include a plethora of examples taken from DFID’s ROL and development related work. In 

particular, DFID’s 2010 Practice Paper “Building Peaceful States and Societies,”106 which outlines 

the UK’s approach at putting state-building and peace-building at the center of their work in fragile 

and conflict-affected countries is worthy of note. The Practice Paper sets out the importance of 

security, law and justice as core functions of the state and provides useful illustrative examples of the 

importance of access to justice and ROL work within an integrated approach. Also of note, and more 

102 See Action Plan, supra note 99, at 19. 103 http://www.dfid.gov.uk/Documents/publications1/Building-stability-overseas-strategy.pdf 104 For more about the role of the SU’s role, one of which is to Formulate best practice with international 

partners, see http://www.stabilisationunit.gov.uk/about-us/more-about-the-unit.html 105 MSSTs have the following roles: Coordinating between military and civilian organizations; gathering and 

analyzing civil information; providing assistance to planning operations; and identifying and aiding the delivery 

of consent winning activities, reconstruction and development projects. 

106 http://www.dfid.gov.uk/Documents/publications1/governance/Building-peaceful-states-and-societies.pdf 

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fully referred to in Chapter 5, is DFID’s approach to measuring and using results in Security and 

Justice Programmes.107 

In the same way that they do for U.S., coalition partners will be bound to comply with their own legal 

(both national and international) and policy obligations. These may create a marked disparity among 

the partners as to what they can or cannot do. JAs 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.108 

These differences should not, necessarily, be viewed negatively. They provide opportunities for 

coalition partners to advance the rule of law in different, but hopefully complementary, manners in 

operations throughout the world. The following European Union examples are given, by way of 

highlighting the non-NATO led support that is provided by our coalition allies in helping to foster the 

ROL in Afghanistan, Iraq and Kosovo. 

Afghanistan. The European Union (EU) launched the Police Mission in Afghanistan (EUPOL 

Afghanistan) in June 2007.109 Its current mandate expires on 31 May 2013. That mandate is to 

contribute to the establishment of sustainable and effective policing arrangements in all parts of 

Afghanistan. EUPOL Afghanistan works towards local police reform which respects human rights 

and operates within the framework of the ROL, and in accordance with the National Police 

Strategy.110 It continues to work in cooperation with the NATO Training Mission Afghanistan. 

EUPOL Afghanistan is deployed at central (Kabul), regional and provincial levels, through the 

Provincial Reconstruction Teams (PRTs). As of June 2011 EUPOL had 300 international staff, 175 

local staff, and a budget of 54.6 million Euros for the year ending 31 May 2011. The contributing 

states are 21 EU Member States, Canada, Croatia, New Zealand and Norway. 

The mission monitors, mentors, advises and trains at the level of the Afghan Ministry of Interior, 

central Afghan administrations, regions, provinces and districts. EUPOL has also established the 

Anti-Corruption Prosecutor's Office. These specialized prosecutors are developing cases against 

high-profile public officials suspected of corruption. EUPOL has trained more than 300 inspectors 

within the Ministry of Interior in basic anti-corruption investigation techniques. 

Iraq. The EU launched the Integrated Rule of Law Mission for Iraq (EUJUST LEX), a civilian crisis 

management mission, on 1 July 2005. The Mission’s mandate has been extended on a number of 

occasions, most recently to 30 June 2012.111 EUJUST LEX was established to strengthen the ROL 

and promote a culture of respect for human rights in Iraq by providing professional development 

opportunities for senior Iraqi officials in the criminal justice system. The core aim is to foster 

confidence, mutual respect and operational cooperation between the different branches of the Iraqi 

criminal justice system (police, judiciary and penitentiary), with specialist courses being developed 

for, in particular, senior officers, to meet the specific needs of the Iraqi criminal justice system while 

maintaining a focus on human rights issues. 

107 U.K. Department for International Development Practice Paper, Measuring and Using Results in Security 

and Justice Programmes (August 2010). 108 See FORGED IN THE FIRE, supra note 97, at 69. 

109 See EU COUNCIL JOINT ACTION 2007/369/CFSP of 30 May 2007 on establishment of the European
 

Union Police Mission in Afghanistan, available at http://www.eupol-afg.eu/legal_basis.php (last visited June 

10, 2011).

110 See EUPOL Afghanistan, Fact Sheet, updated April 2010, available at http://www.eupolafg.eu/pdf/100426FACTSHEET.pdf (last visited 10 June, 2011).
 111 See EUJUST LEX/Iraq homepage available at http://www.consilium.europa.eu/eeas/security-defence/euoperations/eujust-lex.aspx?lang=en (last visited 29 July 2011). 

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EUJUST LEX also facilitates a practical program of work experience which allows Iraqi criminal 

justice professionals to work alongside their EU counterparts. 

Kosovo. The EU Rule of Law Mission in Kosovo (EULEX Kosovo) is based upon a decision by EU 

member states in February 2008.112 It is the largest civilian mission ever launched under the 

European Security and Defense Policy (ESDP) of the European Union.113 EULEX Kosovo does not 

replace the UN Mission in Kosovo (UNMIK), but instead aims to assist and support ROL institutions, 

judicial authorities and law enforcement agencies in their progress towards sustainability and 

accountability. EULEX Kosovo is engaged with all ROL issues, but prioritizes war crimes, 

corruption, organized crime, inter ethnic crimes, money laundering, terrorism and property related 

issues.114 The mission is a technical one, to monitor, mentor and advise, rather than govern or rule, 

although it does retain a number of limited executive powers.115 As of 29 April 2011, EULEX 

Kosovo comprised of approximately 1950 international staff, 1250 local staff, and operated with a 

budget of Euro 165 million for the year to October 2011. 

112 See http://www.eulux-kosovo.eu. 113 The European Union’s European Security and Defense Policy (ESDP) includes the gradual framing of a
 

common defense policy. The ESDP allows the EU to develop its civilian and military capacities for crisis
 

management and conflict prevention at international level, thus helping to maintain peace and international 

security. The ESDP includes a strong conflict prevention element, see http://www.consillium.europa.eu/esdp. 114 See Council Joint Action 2008/124/CFSP (4 February 2008) mission statement, art 2, and tasks, art 3. 115 EULEX Kosovo prosecutors and judges have executive powers in relation to certain serious and sensitive 

crimes.
 

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CHAPTER 3 

THE INTERNATIONAL LEGAL FRAMEWORK FOR RULE 

OF LAW OPERATIONS 

It would be ironic if ROL operations were conducted without regard to the applicable law. Different 

sets of international legal norms will apply to each operation, and the decision as to which norms 

apply will be articulated at the highest policy levels. Deployed JAs working on ROL operations must 

be mindful of which international legal rules apply to their own particular circumstances. 

Some of these legal norms apply universally, requiring JAs to ensure compliance in all operations. 

Others have a more limited application. For example, the extraterritorial setting of most modern 

stability operations may limit the applicability of certain legal frameworks, such as some human 

rights treaties, to which the United States is a party. Other international legal frameworks, such as the 

law of war, rely on strict classification regimes to determine their application to a particular operation 

or persons. 

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 applicable regime, ROL operations call for adherence to the requirements of international 

law not only as a matter of legal compliance, but as a matter of U.S. policy and good practice. To that 

extent, JA ROL practitioners must also be cognizant of that policy and practice. 

I. Identifying a Rule of Law Legal Framework 

The aim of this section is to illustrate, in outline rather than by way of a comprehensive narrative, 

some of the various mandates that may govern military deployments overseas and the impact these 

have on ROL operations. From a legal perspective the mandate defines the nature, scope and limits 

of any military deployment. It provides the raison d’être 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. 

A. United Nation Mandates 

1. UN Security Council Resolutions 

The Security Council is the principal body within the UN with primary responsibility for the 

maintenance of international peace and security.1

 Chapter VII of the UN Charter enumerates the 

Council’s compulsory powers to restore international peace and security. Most UN Security Council 

Resolutions (UNSCR) 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. 

1

 U.N. Charter art. 24(1).
 2

 United States, Russia, United Kingdom, China and France. 

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2. The Use of Force 

The UN Charter’s general prohibition on recourse to the use of force is relatively well accepted.3 

Intervention, whether by direct military action or indirectly by support for subversive or terrorist 

armed activities, falls squarely within this prohibition.4

 The prohibition on the use of force is, 

however, subject to several exceptions, two of which are paramount. The first, contained in Article 

51 of the Charter, recognizes the right of individual and collective self defense for states in the event 

of an armed attack. The second, contained in Article 42, empowers the Security Council to authorize 

the use of force in order to restore international peace and security based on a determination of the 

existence of a “threat to the peace, breach of the peace, or act of aggression.”5 Resolutions 

empowering military operations overseas can be passed under Chapters VI or VII of the Charter. The 

former provides for the pacific settlement of disputes with the consent of the host nation, while the 

latter permits action with respect to threats to the peace, breaches of the peace, and acts of aggression 

even without the consent of the host nation. 

Judge advocates can expect to support operations, often with a ROL line of operation within them, 

that are governed by UN Security Council mandates. In addition to advancing efforts to restore 

peace, such resolutions may include developmental mandates. Particularly in missions undertaken in 

under-developed states, JAs should expect Security Council resolutions to explicitly address 

perceived ROL deficiencies as well as economic, financial, health, and human rights issues. UN 

Security Council Resolutions 1483 (2003) (regarding the reconstruction of Iraq) and 1917 (2010) 

(regarding the situation in Afghanistan), are representative.6

 Frequently, the Security Council and 

Secretary General have relied on Special Rapporteurs and/or Special Representatives to provide 

detailed guidance on the implementation of such resolutions and to report to the Council on progress 

in their execution.7 

UN Security Council resolutions, mandates, and directives may be in apparent conflict with preexisting or concurrent international 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 and alert their technical legal channels at the 

highest levels. Resolution of competing legal duties may ultimately require political as well as legal 

determinations. 

3

 “All members shall refrain in their international relations from the threat or use of force against the territorial 

integrity or political independence of any State, or in any manner inconsistent with the purposes of the United 

Nations.” U.N. Charter art. 2(4). 

4 See G. A. Res. 2625 (XXV), U.N. Doc. A/8082 (1970). 5

 U.N. Charter art. 39. 

6

 In response to the 2003 invasion and occupation of Iraq, the United Nations Security Council passed 

Resolution 1483. S.C. Res. 1483, U.N. Doc. S/RES/1483 (2003) [hereinafter S.C. Res. 1483]. In addition to a 

directive to comply with the law of occupation, Resolution 1483 instructed the coalition to work toward a 

number of developmental and humanitarian goals. Paragraph 14 directed the coalition to repair infrastructure 

and meet the “humanitarian needs of the Iraqi people.” Id. Several months later, the Secretary General issued a 

report on implementation of 1483. See Report of the Secretary-General Pursuant to Paragraph 24 of Security 

Council Resolution 1483, U.N. Doc. S/2003/715 (2003). The report frequently exhorted the coalition to speed 

reconstruction and development efforts, often through transformative means. For instance, the report observed 

“the development of Iraq and the transition from a centrally planned economy needs to be undertaken.” Id. at 

16.
 7 See Sec Gen’s Comment on UNSCR 1483; Report of the Panel on United Nations Peace Operations (The 

Brahimi Report), A/55/305 - S/2000/809 (2000), available at
 

http://www.un.org/peace/reports/peace_operations/docs/full_report.htm (last visited June 13, 2011). 

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a. Resolutions Passed Under Chapter VI 

Chapter VI of the Charter deals with attempts to resolve disputes by pacific means. Indeed, it states 

that parties to any dispute must first attempt to seek resolution by negotiation, enquiry, mediation, 

conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other 

peaceful means of their own choice.8 The Security Council has wide powers under Chapter VI. It 

may, at any stage of a situation that might lead to international friction or give rise to a dispute, 

recommend appropriate procedures or methods of adjustment. The key to resolutions passed under 

Chapter VI is that they only permit the presence of military forces with the consent of the host 

government and do not sanction the use of force other than that which is necessary for self-defense. 

Due to the permissive nature of Chapter VI missions, JAs should expect host nation legal norms to 

govern most operations. Relations between the sending and receiving state will, in all likelihood, be 

governed by a Status of Forces Agreement (SOFA). Chapter VI missions that include a ROL aspect 

may call on supporting JAs 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, JAs should pay 

particular attention to detention procedures, law enforcement provisions, and property dispute 

resolution. 

b. Resolutions Passed Under Chapter VII 

Chapter VII of the UN Charter provides an important caveat to the prohibition on the use of force 

contained within Article 2(4). Along with Article 51, it constitutes the modern jus ad bellum. The 

prohibition on UN intervention in domestic affairs of a nation is specifically excluded in relation to 

actions which are predicated on threats to the peace, breaches of the peace, or acts of aggression.9

 By 

far the most common method for the Security Council to pass a resolution under Chapter VII is for 

the members to determine that there exists a threat to “the” peace. A Security Council resolution 

under Chapter VII is binding on all member States. 

Article 39 of the Charter enables the Security Council in the event of “any threat to the peace, breach 

of the peace, or act of aggression,” to take measures to “maintain or restore international peace and 

security.”10 Once the Council has made an Article 39 determination, it can then prescribe what 

measures are necessary for the restoration of peace and security using its powers under Chapter VII, 

specifically measures provided for in Article 41 and 42, or some variation thereof. 

Article 41 allows the Council to require member states to apply affirmative measures short of the use 

of force. These measures include, but are not limited to “complete or partial interruption of economic 

relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the 

severance of diplomatic relations.”11 Depending on the language used in the resolution, the 

imposition by the Security Council of economic sanctions against a state pursuant to Article 41 may 

be either recommended or mandatory in nature. 

Article 42 empowers the Security Council to authorize the use of force. The Security Council may 

authorize member states to “take such action by air, sea, or land forces as may be necessary to 

maintain or restore international peace and security.”12 These measures include, but are not limited 

to, “demonstrations, blockade, and other operations by air, sea, or land forces of members of the 

8

 U.N. Charter art. 33(1). 

9

 U.N. Charter art. 2(7).

10 U.N. Charter art. 39. 

11 U.N. Charter art. 41. 

12 U.N. Charter art. 42. 

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United Nations.”13 When this provision was drafted, it had originally been envisioned that an Article 

42 action that would be taken by countries under a unified UN command. That type of action has 

been rare. Instead, a practice has developed whereby the Security Council authorizes states to take all 

necessary measures, in which case, there is no unified UN command. Member states are not 

mandated to participate in a Chapter VII military operation, but they cannot work counter to the UN 

effort. 

The legal effect of the passing of a resolution under Chapter VII that authorizes the use of all 

necessary means is significant. It offers the military commander enormous freedom to prosecute any 

campaign. Resolutions passed under Chapter VII have been aimed at both state and non-state actors. 

Examples of the latter include resolutions passed against the National Union for the Total 

Independence of Angola (UNITA) following their breach of terms of cease-fire in Angola14 and the 

Taliban and Al Qaeda15 after 9/11. 

Judge advocates may find familiar legal territory when supporting missions executed pursuant to 

Chapter VII authority. Such missions are typically coercive, thus obviating, at least during early 

phases, detailed consideration of host nation legal frameworks. The nature and international scope of 

such missions, particularly those carried out under Article 42, will likely trigger application of the full 

body of the law of war. However, the longevity of that application must also be considered and 

anticipated. The completion of decisive operations will typically transition to stability or postconflict missions, which will often be accompanied by increased legal complexity. 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.16 

B. Mandates Pursuant to Bilateral and Multi-lateral Agreements 

Because of political considerations and structural obstacles, the UN system has rarely 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 utilized multi-lateral, often of a regional nature, security arrangements to 

supplement both the United Nations system as well as their indigenous capacity for self-defense. 

Occasionally states have concluded ad hoc arrangements as well. 

Security arrangements are not the exclusive source of bilateral military mandates, however. States 

have also concluded developmental and other assistance agreements that may regulate or govern 

military contingency operations. Economic, educational, and other developmental agreements may 

prove highly relevant to contingency operations, particularly during long-term or preventive stability 

operations. Such agreements may include specific provisions on military support, military and police 

training, or support to civil infrastructure projects. 

13 Id. 14 Most recently, UN Security Council Resolution 1295 established a monitoring mechanism to supervise 

implementation of previous Security Council resolutions issued against UNITA. U.N. Doc. S/Res/1295 (18 

April 2000). Resolution 1295 invoked the Council’s powers under Chapter VII and called on States to consider 

action under article 41 of the Charter. Id. at para 6. 

15 See S.C. Res 1373. The Taliban were not generally recognized by the International Community to be the 

legitimate Government of Afghanistan and as such were “non State actors.”

16 See S.C. Res. 1483, supra note 6.
 

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Judge advocates, and other ROL practitioners that often work alongside them, detailed to support 

missions carried out pursuant to bilateral agreements should coordinate closely with the appropriate 

geographic Combatant Command. Interagency coordination is also essential to appreciating the 

implementation strategy of bilateral development or security agreements. 

C. Mandates Pursuant to National Legislation 

Finally, military missions, particularly those involving the use of force, are frequently governed by 

national legislation. The Constitution entrusts Congress with significant responsibilities related to 

employment and regulation of the armed forces. Even outside instances of declared war, 

congressional resolutions and bills have been brought to bear on 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 ROL operations. Fiscal law restrictions will undoubtedly impact mission 

planning and execution.17 Other reporting and operating requirements, such as vetting under the 

Leahy amendment18 for past human rights violations should also be anticipated. 

II. The Rule of Law Legal Framework 

As mentioned at the outset of this chapter, currently, no single body of law regulates the conduct of 

ROL operations. Rather, ROL operations, or line of operation within a wider operational context, 

tend to demand highly context-specific legal frameworks that account for geographic, conflict, and 

cultural settings. This section considers the potential application of three major legal disciplines with 

apparent relevance to many ROL operations: the law of war, its subset of occupation law, and human 

rights law. 

A. The Law of War 

Rule of law operations typically occur within the broader context of stability operations. Department 

of Defense doctrine emphasizes that stability operations occur both along and beyond the conflict 

spectrum.19 Doctrine notwithstanding, major combat operations are sure to present significant 

obstacles to effective ROL operations. Mission sets, personnel, and resources must be tailored to 

accommodate the realities and demands of the battlefield. Similarly, ROL operations occurring 

during combat are subject to the law of war. 

In some instances, the law of war may operate as an enabler, facilitating the imposition of law and 

order. For example, application of “Prisoner of War” or “Civilian Internee” standards to detention, 

under the Third and Fourth Geneva Conventions, respectively, demonstrates a principled application 

of the Rule of Law and may facilitate an orderly transition to civilian detention regimes in a postconflict phase of operations. Judge advocates must ensure that ROL plans and operations executed 

during armed conflict leverage such enablers, while respecting relevant obligations. 

1. Treaty Law 

Much of the contemporary corpus of the law of war is contained in treaty law. Some commentators 

have found utility in bifurcating the positive law of war into obligations concerned with treatment of 

17 See ch. 6 of this Handbook. 18 Pub. L. No. 104-208, 110 Stat. 3009-133 (1996). 

19 See U.S. DEP’T OF DEFENSE, INSTR. 3000.05, STABILITY OPERATIONS, para. 4.a.
 

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victims of war (the Geneva tradition) and obligations to be observed in the conduct of hostilities (the 

Hague tradition). While the academic nomenclature of this bifurcation may no longer accurately 

reflect the respective treaty sources of these norms, the functional separation of rules remains useful. 

The four 1949 Geneva Conventions form the backbone of the law relevant to treatment of victims of 

war. All states, including the United States, are parties to the Geneva Conventions. Despite their 

impressive size, 419 articles in all, the majority of the Conventions regulate a narrow class of armed 

conflict—so-called international armed conflict. In fact, application of all but one article (Common 

Article 3) of the four Conventions is conditioned on existence of armed conflict between opposing 

state parties to the Conventions. As such, Common Article 3 apart, the de jure application of the 

provisions of each Convention relate only 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, JAs 

in ROL operations must remain attuned to evolutions in the character of conflict. Recent operations 

have featured complex conflict classifications, for example when armed conflicts among diverse 

groups within the same state territory have been considered single conflicts for purposes of 

application of the Conventions, while other armed conflicts involving multiple parties in a single state 

have been 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. 

2. 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.20 Many treaty provisions, including the 

Hague Regulations of 1907, the Geneva Conventions of 1949, and portions of the 1977 Additional 

Protocols to the 1949 Geneva Conventions are considered reflective of CIL. Provisions of the latter 

treaties have proven particularly troublesome for U.S. JAs because the U.S. is not a party to either 

Additional Protocol. The majority of Protocol I provisions reflective of CIL relate to targeting 

operations and are not of primary concern to ROL operations. The U.S. has not expressed explicit 

support for most of the Protocol I supplements to treatment of war victims, however, reducing the 

legal significance of these provisions during exclusively U.S. operations. 21 Judge advocates should 

bear in mind, however, that many U.S. allies and potential ROL host nations have ratified or acceded 

to the Protocols or may view their provisions as reflective of CIL. 

It is important to remember that legal norms mature with their triggering mechanisms. That a norm 

develops, through state practice and opinio juris, into CIL does not of necessity expand its scope of 

20 But see Customary International Humanitarian Law Volumes 1 & II (Henckaerts & Doswald-Beck eds., 

2005) [hereinafter Henckaerts & Doswald-Beck]. 21 But see for a more nuanced understanding of the U.S. approach to the Additional Protocols and in particular 

Article 75 of Additional Protocol 1: The White House Office of the Press Secretary “Fact Sheet: New Actions 

on Guantanamo and Detainee Policy” (March 07, 2011), available at http://www.whitehouse.gov/the-pressoffice/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy (last visited Aug 3, 2011); and 

Statement Before the House Armed Services Committee Hearing on Detainees, delivered by Deputy Secretary 

of Defense William J. Lynn, III , House of Representatives, Thursday, March 17, 2011, available at 

http://www.defense.gov/speeches/speech.aspx?speechid=1548 (last visited Aug 3, 2011). 

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application. For example, while combatant immunity for the former lawful warlike acts of certain 

POWs is likely reflective of CIL, such immunity is restricted to international armed conflict. The 

CIL status of combatant immunity does not imply its application to non-international armed conflicts. 

3. Policy 

United States DOD policy directs its armed forces to “comply with the law of war during all armed 

conflicts, however such conflicts are characterized, and in all other military operations.”22 The policy 

is intended to apply the law of armed conflict for international armed conflict across the conflict 

spectrum. This provides a standard that military personnel can train to in all situations, applying the 

lex specialis of the law of war to their conduct, as a matter of policy, even when it may not apply as a 

matter of law. 

B. Occupation Law 

Though largely unused in the latter half of the twentieth century, occupation law has experienced a 

recent revival in both international practice and litigation.23 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 ROL operations. 

1. Treaty Law 

Most norms of occupation law are found in international treaties. The 1907 Hague IV Regulations 

and the 1949 Fourth Geneva Convention are the primary sources of positive law. Generally speaking, 

rules of governance and handling of property may be found in the former, while norms applicable to 

treatment of persons are found in the latter. Collectively, occupation law offers nearly complete 

instructions on the temporary administration of foreign sovereign territory and persons. These 

include responsibilities for food and medical supplies, hygiene and public health. 

Whether forces are in occupation is a question of fact that depends largely on the prevailing 

conditions on the ground. Guidance is provided by Article 42 of the Hague Regulations: 

Territory is considered occupied when it is actually placed under the authority of the hostile army 

[and] extends only to the territory where such authority has been established and can be 

exercised. 

Accordingly, it is entirely possible that a portion of contiguous territory would be deemed occupied 

while another would not. Indeed, a divide can exist within a single city or town depending on 

conditions and the ability of the forces to establish and exercise their authority. Potential occupants 

often go to great lengths to distinguish themselves as mere invaders, liberators, or invited civil 

administrators to prevent the operation of occupation law. 

Occupation law is intended to preserve the status quo ante; it is conservationist in nature. Both 

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 ROL projects that modify existing legal regimes and institutions. 

Exceptions are primarily related to establishing and maintaining security and observance of 

22 U.S. DEP’T OF DEFENSE, DIR. 2311.01E, DOD LAW OF WAR PROGRAM, para. 4.1 (9 May 2006) [hereinafter 

DOD LAW OF WAR PROGRAM]. 23 Adam Roberts, What is a Military Occupation?, in THE BRITISH YEAR BOOK OF INTERNATIONAL LAW (1985); 

Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 AM. J.
 

INT’L L. 580, (2006). 

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fundamental humanitarian norms. The occupation phase of Operation Iraqi Freedom presented JAs 

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, JAs should ensure ROL projects that alter existing governmental structures are 

grounded in either legitimate security concerns or fall under a superseding international mandate for 

development. 

2. Customary International Law 

Because occupation law is found in such well-established treaties, many argue that its norms 

constitute CIL. While probably true, JAs should remember that the applicability of norms attaining 

customary status remains conditions based. That is, when a treaty provision matures into custom, the 

primary effect is to bind non-parties. Customary status does not mandate application beyond the 

scope of conditions originally attendant to the relevant norm. For example, while Article 49 of the 

Fourth Geneva Convention prohibits transfers of inhabitants of occupied territory, its status as a likely 

customary norm does not extend its application beyond the preconditions established in Common 

Article 2 and Article 4 of the Fourth Convention. Thus, Article 49 only operates as customary law in 

“cases of partial or total occupation of the territory of a High Contracting Party”24 and with respect to 

“[p]ersons . . . in the hands of [an] . . . Occupying Power of which they are not nationals.”25 

It is possible, notwithstanding the preceding distinction, that some provisions of occupation law 

extend to territory that is not occupied in the technical or legal sense. For instance, foreign courts 

have explored the boundaries of occupation law applicable to situations short of those described in 

Common Article 2. The content of this variant of customary occupation law is unclear. A recent 

study of CIL is similarly silent on occupation law.26 The United States has not clearly expressed its 

views in this regard, although the application of the law of international armed conflict to “all other 

military operations” may provide a policy solution to this CIL conundrum.27 

3. Policy 

In addition to guidance directing U.S. forces to comply with the law of war in all operations, JAs will 

find support for application of occupation law beyond its legal limits as a matter of policy. U.S. Army 

Field Manual 27-10, paragraph 352(b) encourages forces to apply occupation law to areas through 

which they are merely passing and even to the battlefield.28 Thus, stability and ROL 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. 

24 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 2. 25 Id., at art. 4.
 26 See Henckaerts & Doswald-Beck, supra, note 20. 27 See infra note 22, accompanying text, and section II.B.3.
 28 U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, LAW OF LAND WARFARE 352(b) (18 July 1956). See also DOD
 

LAW OF WAR PROGRAM, supra, note 22. 

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C. Human Rights Law 

Where international law generally governs relationships between states, human rights law (although a 

form of public international law) regulates relationships between states and individuals. Human 

rights law can be applicable to JAs engaged in ROL operations in two ways: through the application 

of customary international human rights law to their activities or through the application of the host 

nation’s human rights (treaty-based) obligations. If engaged in combat operations, the U.S. regards 

the law of war as an exclusive legal regime, or a lex specialis. Under this view, the law of war, as the 

more specific law pertaining to military operations, displaces the more general framework of human 

rights law.29 Moreover, the U.S. considers its obligations under the International Covenant on Civil 

and Political Rights30 to be territorial in scope, because the treaty applies in a State’s “territory and 

jurisdiction” (emphasis added). That position is not necessarily shared by other nations, due to 

domestic obligations and the wording of regional human rights treaties, which apply in situations 

where a government has jurisdiction or control and authority over persons, such as in detention 

operations. For that reason, Council of Europe countries, party to the European Convention on 

Human Rights, may be bound to ECHR obligations when operating outside of their domestic 

territories.31 

Irrespective of the specific legal context, ROL operations, integrated with host nation governance, 

should be guided and informed by human rights law purely as a matter of efficacy. U.S. forces should 

model behavior for, and encourage actions by, the host nation government that will encourage the 

host nation to adopt and practice strong human rights norms. For example, while detention operations 

by U.S. forces may legally be conducted in accordance with law of war requirements, the detention 

procedures adopted by U.S. forces during the post-conflict phase may serve as a model for the 

administrative or criminal detention procedures that the host nation later adopts for domestic use. 

Judge advocates should assist host nation institutions in building capacity that complies with human 

rights standards that are consistent with the host nation’s legal regime. 

1. Treaty Law 

There has been a rapid expansion in human rights treaties since the Second World War. 

Internationally, there are a number of major human rights treaties to which the host nation may be 

party.32 These include the Genocide Convention; the International Covenant on Civil and Political 

29 The United States’ position on the question of whether human rights treaties apply extra territorially or during 

periods of armed conflict may be summarized by the comments of Michael Dennis of the US Department of 

State: 

The obligations assumed by states under the main international human rights instruments were never 

intended to apply extraterritorially during periods of armed conflict. Nor were they intended to replace the 

lex specialis of international humanitarian law. Extending the protections provided under international 

human rights instruments to situations of international armed conflict with military occupation offers a 

dubious route toward increased state compliance with international norms. 

Michael Dennis, Application of Human Rights Extraterritorially in Ties of Armed Conflict and Military 

Occupation 99 AM. J. INT’L L. 119 (2005). 30 Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/English/law/ccpr.htm (last visited June 

13, 2011).

31 See, e.g., Al Skeini and Others v the United Kingdom [GC] no. 55721/07 Eur. Ct. H.R. (2011) [hereinafter Al 

Skeini v. U.K.], and Al-Jedda v the United Kingdom [GC] no. 27021/08 Eur. Ct. H.R. (2011) [hereinafter AlJedda v. U.K.].

32 There are also a number of labor law treaties to which a country may be a party, with which a rule of law 

practitioner should become familiar, particularly if international investment in the host nation is being 

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Rights (ICCPR);33 the International Covenant on Economic, Social and Cultural Rights (ICESCR);34 

the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 

(CAT);35 the Convention on the Elimination of All Forms of Discrimination Against Women 

(CEDAW);36 the Convention on the Elimination of All Forms of Racial Discrimination (CERD);37 

the Convention on the Rights of the Child (CRC)38 and its two Optional Protocols, one on the 

involvement of children in armed conflict39 and the other on the sale of children, child prostitution 

and child pornography;40 the Convention on the Rights of Persons with Disabilities (CRPD);41 and 

the International Convention for the Protection of All Persons from Enforced Disappearances.42 

Regionally, there are the European Convention for the Protection of Human Rights and Fundamental 

Freedoms (ECHR) of 1950,43 the American Convention on Human Rights (ACHR),44 and the African 

Charter on Human and Peoples’ Rights.45 

The United States is party to the ICCPR, the CAT, the CERD, and the two optional protocols to the 

CRC. However, the U.S. does not consider that the majority of its human rights treaty obligations 

apply extraterritorially, nor during periods of armed conflict.46 Notwithstanding this, JAs need to be 

aware that the U.S. position is not universally accepted and that they may be called upon to respond 

to human rights complaints submitted to the United Nations. The treaty bodies interpreting the 

treaties to which the U.S. is party typically expect the U.S. to account for its actions wherever they 

take place. 

Moreover, there are some 40 UN special procedures,47 such as a Working Group on Arbitrary 

Detention, Special Rapporteurs on torture and on extrajudicial, summary or arbitrary executions, and 

a Representative of the Secretary-General on the human rights of internally displaced persons, which 

review complaints from any individual purporting to be a victim of a human rights violation, 

including in Iraq and Afghanistan. Although the U.S. position is that the laws of war are the relevant 

lex specialis for military operations and that the human rights treaty bodies and the special 

mechanisms do not have jurisdiction over the laws of war, as a matter of policy and transparency, the 

U.S. responds to these inquiries. 

In addition, although the United States is not party to its regional human rights treaty, the ACHR, it is 

a party to the Organization of American States, which created the Inter-American Commission on 

Human Rights. That body has a non-binding dispute settlement mechanism that allows it to opine on 

the consistency of U.S. activities with international law by reference to the ACHR. It has issued 

precautionary measures pertaining to detainees at Guantanamo Bay and opined on the consistency of 

certain aspects of U.S. military actions in Grenada with the American Declaration on Human Rights. 

encouraged. For a list of labor treaties to which a country is party, see 

http://www.ilo.org/ilolex/english/newratframeE.htm (last visited July 20, 2010). 33 See http://www2.ohchr.org/english/law/ccpr.htm (last visited June 13, 2011). 34 See http://www2.ohchr.org/english/law/cescr.htm (last visited June 13, 2011). 35 See http://www2.ohchr.org/english/law/cat.htm (last visited June 13, 2011). 36 See http://www2.ohchr.org/english/law/cedaw.htm (last visited June 13, 2011). 37 See http://www2.ohchr.org/english/law/cerd.htm (last visited June 13, 2011). 38 See http://www2.ohchr.org/english/law/crc.htm (last visited June 13, 2011). 

39 See http://www2.ohchr.org/english/law/crc-conflict.htm (last visited June 13, 2011). 40 See http://www2.ohchr.org/english/law/crc-sale.htm (last visited June 13, 2011). 41 See http://www.un.org/disabilities/convention/conventionfull.shtml (last visited June 13, 2011). 42 See http://www2.ohchr.org/english/law/disappearance-convention.htm (last visited June 13, 2011). 43 See http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG (last visited June 13, 

2011). 

44 See www.oas.org/juridico/english/treaties/b-32.html (last visited July 20, 2011). 45 See http://www1.umn.edu/humanrts/instree/z1afchar.htm (last visited July 20, 2011). 46 Surpa, note 29. 47 See http://www2.ohchr.org/English/ (last visited June 13, 2011) for complete list of UN special procedures. 

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The United States’ interpretation of the applicability of human rights treaties allows the U.S. military 

comparatively greater freedom of action than many coalition partners when conducting operations 

overseas. For instance, as previously discussed, the seemingly increasing extra territorial application 

of the ECHR on certain military operations conducted by European coalition partners may 

substantially impact upon their freedom of action as compared to the U.S.48 

Human rights treaties may also apply to the host nation within which the U.S. military are operating. 

At the outset of ROL operations, JAs should review the human rights law instruments to which the 

host state is a party, as well as their reservations and declarations.49 Rule of law missions may call 

upon JAs to develop plans to assist in the implementation of host nation human rights treaty 

obligations. Judge advocates should appreciate and account for the complexities of implementing 

such obligations consistent with host nation legal and cultural traditions, but at the same time bear in 

mind U.S. views of the host nation’s obligations. For instance, although many Muslim states have 

ratified the Convention for the Elimination of Discrimination Against Women, most included 

significant reservations to account for Sharia which would be counter to U.S. views on the rights of 

women. 

2. Customary International Law 

To the extent that human rights norms have attained a CIL status, they will be part of the applicable 

legal framework. However, there is much disagreement as to which human rights have matured into 

customary law. The Universal Declaration of Human Rights (UDHR) serves as a baseline guide,50 or 

an aspirational document that is not legally binding on states; the U.S. practitioner, therefore, must 

look to other sources of law. According to the Restatement (Third) of Foreign Relations Law of the 

United States, the United States accepts the position that certain fundamental human rights fall within 

the category of customary international law, and it violates international law when a state practices, 

encourages, or condones the following practices: 

• Genocide 

• Slavery or the slave trade 

• Murder or causing the disappearance of individuals 

• Torture or other cruel, inhuman, or degrading treatment or punishment 

• Prolonged arbitrary detention 

• Systematic racial discrimination, or 

• A consistent pattern of gross violations of internationally recognized human rights.51 

In addition, the recent statement of the President on Article 75 of Additional Protocol I and the 

administration’s intent to seek ratification of Additional Protocol II (particularly with respect to 

Articles 4-6) indicate the current U.S. view of human rights norms applicable in international and 

non-international armed conflict, respectively.52 

48 See, e.g., Al-Jedda v. U.K. and Al Skeini v. U.K. supra, note 31. 49 A full list of human rights treaties to which a country is a party and that country’s reservations and
 

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

http://www2.ohchr.org/english/law/ (last visited June 13, 2011). 50 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-24,COUNTERINSURGENCY D-8 (15 Dec. 2006). (citing the United
 

Nations’ Declaration on Human Rights and the International Convention for Civil and Political Rights as 

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

51 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, §702 (1987).
 52 See FACT SHEET, supra note 22. 

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III. Conclusion 

Rule of law operations require the identification of the comprehensive underlying legal framework; 

no single legal discipline purports to operate as the lex specialis of ROL missions. Instead, JAs 

involved in ROL lines of operation are required to draw from a broad spectrum of legal disciplines. 

Moreover, the JA must be mindful that U.S. policy and practice may require adherence to more 

stringent international norms. This chapter provides the JA a means of identifying the correct legal 

framework for a particular operation and an overview of those particular legal frameworks likely to 

apply to ROL operations. Considering the challenges associated with establishing legitimate and 

sustainable ROL in a conflict or post-conflict nation, it is especially important that the conduct of 

U.S. forces in such environments comport not only with our own notions of law, policy and practice, 

but those of the international community as well, to include international human rights law. 

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CHAPTER 4 

THE INSTITUTIONAL AND SOCIAL CONTEXT FOR THE 

RULE OF LAW 

One of the greatest challenges for ROL practitioners is the requirement to understand the contextual 

basis of the ROL environment within which they are operating.1

 Too often, past efforts in 

establishing the ROL have ignored the “morality of society,”2

 which is necessary to establishing a 

legal regime that will eventually be viewed by the populace as legitimate—the ultimate goal for any 

ROL operation. Operations in Iraq, for instance, have shown that U.S. officials involved in the 

reform of specific laws often lacked background information about Iraqi culture and their complex 

legal system.3

 The importance in Afghanistan of customary justice mechanisms is increasingly 

widely recognized, although their part in an overall ROL strategy is still under debate. 

This chapter provides a short review of the major legal traditions and some applicable considerations 

to establishing the ROL in non-U.S. environments. The chapter begins with a discussion of ROL 

activities focusing on some of the fundamental component parts of legal institutions. Following that 

are discussions of legal systems unfamiliar to most common law practitioners, including civil law and 

legal systems in which religion plays an explicit part (with special emphasis on Islamic Sharia) and 

combined systems. Next is a 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 the impact that some sociopolitical influences can have on the legal system and the 

efficacy of ROL programs, namely: gender, civil society, and non-state security providers. 

I. Legal Institutions 

A. Legislatures 

A legislature is a representative body that has the responsibility and power to make laws in 

accordance with a specified process. 

Until recently, few deployed JAs had any contact with the legislative side of ROL operations. 

However, recent experiences have changed that. U.S. and other coalition JAs find themselves being 

called upon to advise upon the legislative procedures of the host country or, even, becoming 

personally involved in the creation of legislation, especially where that legislation relates to the host 

nation’s armed forces.4 

Typically, the detail of legislation is the responsibility of civil servants or government employees. 

But, in failed states or those states requiring overseas military support, individuals with the relevant 

1 See BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 133 (2004).
 2 Id. at 138. 3 See JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS?: BUILDING THE RULE
 

OF LAW AFTER MILITARY INTERVENTIONS 323 (2006).
 4

 In Afghanistan U.S. 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 Army Legal Services officers were involved in drafting legislation 

pertaining to the host state armed forces. 

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experience or ability may not be available. It is in these circumstances that JAs are most likely to 

become involved in the process of drafting new or refining existing legislation.5 

The legislative process of each host nation will likely differ substantially from the U.S. model with 

which most JAs are familiar. Some legislative processes will have similar features such as a 

bicameral system, but the process by which a bill passes into law may differ tremendously. If the 

host nation’s legal system is founded on a constitution, the process may, at least in theory, be derived 

from the constitution itself.6

 In other nations the process may be defined by statute.7 Typically, 

however, a JA may encounter significant difficulties in establishing exactly what the legislative 

process of a host nation entails, or in finding authoritative guides to the same. 

The process of enacting legislation is almost universally cumbersome, fraught with bureaucracy and 

time consuming. Given this, it is frequently tempting to bypass 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. In some circumstances, policy making via 

unilateral executive action rather than legislative process may, in itself, undermine the legitimacy of 

not only the policy, but also the host nation government. The process of legislation is often as 

important as the product, both as a matter of substance and popular perception. Moreover, a habit of 

executive lawmaking is likely to result in a practical shift in power from the legislature to the 

executive—a shift that may outlive the exigency.8

 Where military advisers are trying to promote the 

ROL, 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 U.S. 

model will lead to difficulties and is often not the best solution. Although less familiar to the JA, the 

local legal system may be as refined and developed as that in the United States, but more importantly, 

it will tend to benefit from a degree of legitimacy that a newly imposed system will lack. If tasked 

with such responsibilities, JAs should be wary of relying too heavily on the familiar U.S. models.9 

That does not mean that U.S. sources should be disregarded, and several organizations, including the 

American Law Institute and the American Bar Association10 produce model acts for legislatures. 

B. Courts 

The military may be called upon to assist in both restructuring and reconstructing aspects of domestic 

legal systems. Judge advocate involvement in the judicial aspects of ROL operations typically takes 

two general forms: actually operating a court system in the absence of civil authority (especially 

during and immediately following high intensity conflict); and helping to reconstruct the host nation 

civilian (and military) court system. The former mission is essentially the operation of provost courts 

during a period of occupation.11 The latter mission is a reconstruction mission that requires a broader 

understanding of the domestic legal system and will involve a variety of participants, including DOD, 

other U.S. agencies, the host nation, IOs, and NGOs. In support of both missions, JAs may be 

5

 If the deployment results in the military becoming an occupying power, the ability of the power to refine
 

existing legislation and to enact new legislation is limited by the Fourth Geneva Convention. See ch. 3. B. 6 See, e.g., U.S. CONST. art. I, sec. 7. 7 See, e.g., Parliament Act 1949, 12, 13 & 14 Geo. 6. c. 103 (Eng.). 8 See, e.g., European Commission Regular Reports on Romania 2000-2002 (noting with alarm the widespread
 

use of presidential decree by Romania). 

9

 The experiences of those founding the ANA reflect the problem well. See MAJ Sean M. Watts & CPT 

Christopher E. Martin, Nation Building in Afghanistan – Lessons Identified in Military Justice Reform, ARMY 

LAW. 1 (May 2006). 10 See www.ali.org (last visited July 21, 2010) and www.abanet.org (last visited July 21, 2010). 11 See U.S. DEP’T OF ARMY, PAM 27-9-2, MILITARY JUDGES’ BENCHBOOK FOR PROVOST COURTS (4 Oct. 2004). 

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required to advise on court structures, practices and procedures, as well as assess and analyze the 

ongoing performance of such systems. In conducting both missions, JAs need to be mindful of the 

generally recognized standards for the operation of civilian courts, since those are the standards by 

which both the local population and the international community are likely to judge the legitimacy of 

whatever court system is operating under U.S. supervision. 

In resource-challenged environments, it may not be possible to operate domestic court systems in 

accordance with international standards, but that should not rule out using those standards as longterm goals in relevant ROL lines of operation. 

Given that military deployments are most often necessitated by instability and security needs, in the 

past, the tendency in most, if not all, ROL missions was to focus on domestic criminal justice issues 

(vs. civil legal), in order to reestablish 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 ROL mission will be severely handicapped. 

As lawyers, most JAs are already intimately familiar with the basic requirements of 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 challenges 

associated with attempting to reconstruct a court system. 

1. 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 basic tenet of all criminal justice 

systems. The concept of “equality of arms” dictates that neither the prosecution nor the defense 

should have a substantial advantage in conduct of an inquiry.12 The defendant has the right to be 

tried in person and through legal assistance of one’s choosing to examine witnesses against him, call 

witnesses on his behalf,13 and if convicted, the right of appeal. 

Guidelines on the role of prosecutors were adopted by the UN in 199014 and by the International 

Association of Prosecutors in 1995.15 Both documents seek to advance the principles founded in the 

Universal Declaration of Human Rights. The guidelines were formulated to assist states in securing 

and promoting the effectiveness, impartiality, and fairness of prosecutors. They serve as an excellent 

reference point for any JA required to provide advice or guidance on the duties and responsibilities of 

those in public office charged with the prosecution of offenses. 

12 Equality of arms is central to any adversarial justice system. See Martin Blackmore, Equality of Arms in An 

Adversary System, http://www.odpp.nsw.gov.au/speeches/Final%20paper%20Capetown.htm (last visited July 

11, 2011). The right is expressly protected in International Human Rights treaties. See International Covenant 

on Civil and Political Rights, art. 14; European Convention on Human Rights, art. 6. 13 International human rights standards do not generally recognize trial in absentia. The U.S. position was 

discussed by the Supreme Court in Crosby v United States, 506 U.S. 255 (1993), concluding that the right is not 

absolute and can be waived by the defendant. 

14 Eighth Congress on the Prevention of Crime and the Treatment of Offenders, Havana Cuba 1990, Guidelines 

on the Role of Prosecutors, available at http://www2.ohchr.org/english/law/prosecutors.htm (last visited June 

13, 2011).

15 The International Association of Prosecutors was established in June 1995 to promote and enhance the 

standards which are generally recognized internationally as necessary for the proper and independent 

prosecution of offenses. See The Hague Justice Portal, “International Association of Prosecutors” (n.d.), 

http://www.haguejusticeportal.net/eCache/DEF/317.html (last visited June 13, 2011). 

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In many societies emerging from long-term conflict, the availability of defense lawyers may be 

limited or non existent. Rule of Law missions (which frequently concentrate on ensuring that the 

judges and prosecutors are of an acceptable standard) may need to focus more heavily on training and 

deploying a competent corps of defense lawyers than prosecutors. Judge advocates should be mindful 

that the role of defense lawyers may be much less central to the judicial process in some nonadversarial systems. 

2. 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. 

There are two aspects to impartiality. First, the tribunal must be subjectively free of personal 

prejudice or bias. Second, the tribunal must also be impartial from an objective viewpoint, that is, it 

must offer sufficient guarantees to exclude any legitimate doubt in this respect.16 

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 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 may preclude representation in the 

judiciary from all ethnic communities in a state.17 On the other hand, elections allow for direct public 

participation in the appointment process, thus creating a greater level of public acceptance and 

support. 

The levels of education and experience of judges will vary tremendously between countries; 

moreover, they will often vary tremendously between different provinces within a country. In some 

countries, judges have little or no formal training and preside over courts who act, in essence, as 

courts of equity. 

16 See R. v. Dundon EWCA 621 (2004), Grieves v. United Kingdom, 39 Eur. H.R. Rep. 2 ¶ 69 (2004). 17 A system of proportional representation may be useful in providing representation proportionate to the 

ethnography of a state. 

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Judicial Education in Afghanistan 

Judges from many of the provinces of Afghanistan in 2003 had received less than a 

high school education.18 Priority for those seeking to improve aspects of the ROL 

was, therefore, concentrated on creating a widespread program of judicial training.19 

Courses lasting several weeks were run in Kabul and provided basic guidance to 

several hundred regional judges. The training focused on human rights, international 

conventions, judicial skills and attitudes, and judicial independence. Judges also 

received resource materials covering regulations on counter narcotics, juvenile 

violations, anti-corruption, and the structure of courts in Afghanistan. Centralizing 

such training provided a rare opportunity for judges from far-flung provinces to meet 

and share experiences while they received a basic level of instruction. 

The roles and responsibilities of judges which were adopted by the United Nations in 198520, together 

with the Bangalore Principles of Judicial Conduct21 provide an excellent standards of conduct 

template for those who hold judicial office. 

Other solutions to the lack of trained local judiciary include importing international judges to fill the 

vacancies. This has the distinct advantage of establishing a fully-trained and highly-educated 

judiciary in a very short time frame. Such an approach can, however, hinder legitimacy and develop 

reliance on outside support and should be done in conjunction with the development of local assets 

and resources.22 

18 USAID, GENERAL ACTIVITY REPORT FOR 8 – 28 DECEMBER 2005. 

19 Training sessions were held at the Supreme Court for some of Afghanistan’s least educated judges from 

Kapisa, Parwan, Ghazni, Wardak, and Logar Provinces.

20 See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic 

Principles on the Independence of the Judiciary (1985), adopted by the General Assembly by resolutions 40/32 

of 29th November 1985 and 40/146 of 13th December 1985. 21 BANGALORE PRINCIPLES OF JUDICIAL CONDUCT (2002), available at 

http://www.ajs.org/ethics/pdfs/Bangalore_principles.pdf (last visited June 13, 2011). The Bangalore Principles 

arose from a UN initiative with the participation of Dato Param Cumaraswamy, UN Special Rapporteur on the 

Independence of Judges and Lawyers. A draft code was discussed at several conferences attended by judges 

from both the common law and civil codes and was endorsed by the 59th session of the UN Human Rights 

Commission at Geneva in 2003. 

22 Michael E Hartmann, International Judges and Prosecutors in Kosovo: A New Model for Post Conflict Peace 

(U.S. Inst. for Peace Spec. Rep. No. 112 October 2003). 

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Screening Judges in Iraq23 

The process of screening the judiciary was undertaken by the Coalition Provisional 

Authority (CPA) in Iraq. It was deemed necessary to remove any full members of 

the Ba’ath party from public office. The CPA then allowed the Iraqi Council of 

Judges to reassume responsibility for judicial appointments and promotions. 

Moreover, the Council, headed by the Supreme Court’s Chief Justice, held 

responsibility for investigation into alleged misconduct or professional incompetence. 

This locally administered process was not only widely perceived as successful but 

maintained the necessary independence of the judiciary from the executive. 

3. Adequate Physical Infrastructure 

The construction or reconstruction of the physical aspects of the justice system is a concurrent 

requirement along with the training and education of the personnel to man it. In some theaters, the 

need to provide for physical venues initially outstrips the need to provide for judges and prosecutors. 

Iraq provides a classic case in point.24 The need to involve and consult the local judiciary in all 

aspects of the reconstruction process must not be underestimated. A “West is Best” mentality to 

reconstruction should be avoided at all costs; locally based solutions are often far more effective in 

the long term. 

Computers in Iraqi Courthouses 

The provision of computers and other information technology assets to many of 

Iraq’s courthouses was of little benefit; computers were rendered ineffective by the 

lack of electricity or inability of any of the court staff to use them. Iraqi judges stated 

that they would have preferred a generator and air conditioning to abate the 120 

degree temperatures endured in the summer months rather than a computer that 

served no useful purpose. 

Engineers may take the lead on physical reconstruction projects like court buildings, but they will 

require advice from JAs. Wise JAs will 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, as will the economies of scale and network 

benefits that come from co-locating courtrooms and their supporting infrastructure. This may be 

preferable in areas where the security of the court buildings is the highest priority. 

23 For information on vetting public employees see OFFICE OF THE UN HIGH COMMISSIONER FOR HUMAN
 

RIGHTS, RULE OF LAW TOOLS FOR POST-CONFLICT STATES – VETTING: AN OPERATIONAL FRAMEWORK (2006),
 

available at http://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf (last visited June 13, 2011)
 

[hereinafter VETTING]. For further information about the ICTJ research project on vetting and additional 

guidelines being developed see http://www.ictj.org/en/research/projects/vetting/index.html (last visited June 13,
 

2011). 

24 Efforts to reconstruct courthouses and refurbish others were estimated in 2005 to amount to $62.8 million. US
 

DEPARTMENT OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2005 – IRAQ. Reviews conducted 

in Iraq suggested that almost all court buildings lacked adequate perimeter and barrier protection.
 

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4. Adequate Administrative Infrastructure 

Along with reconstructing the physical infrastructure of a legal system, JAs 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. Judge advocates and others involved 

in these assessments should closely scrutinize the “system of systems” that the courts use to conduct 

their work. How do they interface with the police after an arrest is made? How is the docket 

prepared? How are cases tracked from arrest–to trial–to incarceration–to release? During the entire 

process, focus should be placed on whether the process is transparent and whether there are nodes in 

the system that 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, JAs 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 JAs. 

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. 

5. Security 

The question of security for judges and other court staff is often a high priority. Security must be 

afforded to all those who serve in the legal system, including judges, prosecutors, defense attorneys, 

translators, court recorders, and witnesses alike. Without individuals prepared to serve in the criminal 

justice system, criminals and insurgents will continue to enjoy relative impunity. 

C. 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, U.S. forces are likely to participate in the reestablishment of civilian police 

functions. 

1. 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 

25 See U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY 5-17 (15 Dec. 2006).
 26 Report of the Panel on United Nations Peace Operations (The Brahimi Report), A/55/305 - S/2000/809 

(2000), available at http://www.un.org/peace/reports/peace_operations/docs/full_report.htm (last visited June 

13, 2011).
 

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the lead in the police elements of ROL missions. Commanders need to understand that the 

application of force in a police context is very different than in major combat operations, and they 

will need to recognize (often with the help of JAs) the point at which they need to change force 

models. Assuring that military forces receive adequate training, and that appropriate ROE are 

promulgated and understood by coalition military forces, is critical to successfully policing in the 

aftermath of high intensity conflict and developing both the good will of the populace and 

establishing the legitimacy of the legal rules that are being enforced. Both MPs and JAs may be 

central in helping shape the Soldiers’ and commanders’ thinking in such an environment. 

2. Reestablishing Host Nation Police Functions 

In addition to actually providing the security that police provide, U.S. forces will also be working to 

re-establish a civilian police capability. 

a. Police Force Composition 

The importance of 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.27 

One solution in such cases is to import civilian police in the form of international police, which can 

be an effective and powerful short-term solution superior to re-tasking infantry and other combat 

units to police duties. But, as with many aspects of ROL 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 also 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 that provides a modicum of security may, in the short term, prove better 

than no police force at all. If, as experienced by the British Forces in Iraq, where certain police units 

were complicit in serious human rights abuses, it may prove necessary to effect complete reform.28 

Whether starting from scratch or reforming an existing establishment, it will be necessary to vet 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.29 

As with other areas in ROL operations, flexibility and sensitivity to local culture cannot be overstated. 

Given the variety of policing arrangements in different countries, it may be necessary to have a local 

legal expert, or an entire advisory legal staff, if necessary, to help manage the formation of a new 

police force or the reform of an old one.30 For instance, as opposed to the model adopted in the U.S., 

in many nations, the use of police forces with close or formal ties to the military is common, for 

27 Id. 28 See JAMES DOBBINS, ET AL., THE BEGINNER’S GUIDE TO NATION-BUILDING 50-51 (2007). 

29 For information on vetting public employees see VETTING, supra note 23.
 30 Id. It may be necessary to employ persons with different areas of expertise, to include criminal law, civil law, 

human rights law, Sharia, etc.
 

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example the Italian Carabinieri31 and the availability of quasi-military models for police may be 

particularly appropriate for those seeking to police in non permissive environments. 

b. Training 

Although not all-inclusive, some of the important skills training that officer candidates receive should 

include: 

•	 interpretation and application of federal, provincial, and municipal statutes, codes, and rules 

•	 apprehending violators 

•	 use of graduated force 

•	 proper treatment of detained individuals 

•	 interviewing and interrogating suspects 

•	 conducting investigations and effective documentation/collection of evidence 

•	 crisis management 

•	 weapons use, maintenance, and marksmanship 

•	 physical fitness 

•	 self-defense and control/arrest tactics 

•	 operation of police equipment including vehicles, communication systems, and police computer 

systems 

•	 effective oral and written communications 

•	 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). 

D. Detention and Corrections 

All systems of justice must be able to confine and protect detainees. A state with no pre-trial 

detention capability cannot hold trials; likewise, a state lacking long-term confinement facilities 

cannot punish convicts.32 In both cases, the state does not have any reasonable prospect of instituting 

the ROL. Separately, a state that systematically mistreats the incarcerated or fails to provide for their 

subsistence has no greater claim to the ROL 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.33 

1.	 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 

31 The Carabinieri are a separate branch of the Italian armed forces. 

32 Throughout this section, this Handbook will use the terms “jail” and “prison” to refer respectively to shortand long-term detention facilities. 

33 LTC Craig Trebilcock, Legal Assessment of Southern Iraq, 358th Civil Affairs Brigade (2003). 

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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 well-equipped prisons 

include:34 

•	 walls or other security enclosures that prevent both escape from the facility and infiltration from 

outside the facility35 

•	 an exercise yard or gymnasium 

•	 a chapel, mosque, synagogue, or other area dedicated to religious observances 

•	 facilities for individual and group counseling 

•	 a healthcare facility 

•	 a segregation area, used to separate unruly, dangerous, or vulnerable prisoners from the general 

population. Incarcerated persons may be placed in segregation to maintain the safety and security 

of the institution or any person within the prison, to preserve the integrity of an ongoing 

investigation, or when no other accommodation is available.36 

•	 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. 

2.	 Humane Treatment 

Of all the considerations which must be addressed when running a confinement facility, few issues 

have more visibility to outside scrutiny than the conditions under which detainees are held. Within 

the broad spectrum of various human rights concerns, there are a host of issues to be considered. 

Although not a comprehensive list, those issues include: 

•	 housing that adequately protects detainees from the elements 

•	 adequate food and water (the provision of which should accommodate to the extent possible the 

detainee’s religious dietary practices) 

•	 care for detainees with dental and medical conditions (including pregnancy) 

•	 care for detainees with potential mental health conditions 

•	 handling juvenile and female detention and other segregation requirements 

•	 force-feeding hunger-striking detainees 

•	 detainee escape, recapture, and misconduct 

•	 press interviews with detainees 

•	 access to detainees by family, local medical personnel, and local court personnel 

•	 religious accommodation 

•	 detainee labor 

34 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. 

35 Prisons are normally surrounded by a number of barriers to prevent escape, which may include fencing, walls, 

berms, inaccessible geographical features, concertina wire, electric fencing, secured main gates and doors, 

guard towers, floodlights, motion sensors, working dogs, patrols, alarms, and countless combinations of these or 

other security measures.

36 The term “segregation” should be distinguished from “isolation,” which is used by some institutions as a form 

of punishment for misbehavior by the detainee. Some types of detainees should be segregated from the general 

population, including persons accused of sex offenses (particularly against children) and informants. 

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• use of force within the detention facility and maintaining good order and discipline. 

Although many international agreements provide for differing forms of treatment of detainees based 

on status (e.g., prisoners of war, retained personnel, and civil internees), the standard baseline 

treatment for any detainee, regardless of status, is humane treatment.37 

The best way to ensure that proper treatment standards are being enforced is for JAs to personally 

review conditions of detention facilities and personally interview detainees on a random, 

unannounced basis. It is important to interview multiple detainees outside the presence of facility 

staff. Although it may be tempting to discount claims of abuse from individual detainees (particularly 

since detainees from some organizations are taught to routinely allege abuse), experience has shown 

that repeated and consistent detainee reports of abuse or mistreatment can be reliable indications of a 

problem and should be investigated further. Detainee conditions should also be reviewed by outside 

sources to promote legitimacy and transparency of the detention process. Several entities that 

routinely conduct such inspections include The International Committee of the Red Cross (ICRC), the 

Organization for Security and Co-operation in Europe, the United Nations’ Children’s Fund, Amnesty 

International, and various other human rights organizations. Of course, coordination with such 

outside entities is a matter that must be raised to and approved by commanders. 

E. 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 ROL. 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 ROL operations includes the restructuring and 

training of the host nation’s armed forces. Recent examples of this practice include Iraq, 

Afghanistan, Sierra Leone, and East Timor. Moreover, due to the ability to limit the number of 

variables during such missions, the military has enjoyed some success in this field. 

A justice system involving military courts may, however, be overly burdensome to a nascent system 

of military discipline. Such was the conclusion of those responsible for drafting a military discipline 

system for the newly established East Timorese Defense Force (ETDF).38 If the civilian court system 

is a strong one, and military commanders have little or no experience in exercising quasi-judicial 

powers, ceding the power to administer military justice to civilian courts may be appropriate. If a 

separate system of military courts is adopted, trials should adopt standards of criminal procedure 

similar to those afforded to individuals tried in the civilian criminal justice system. 

37 Humane treatment is the standard under numerous authorities, including international law, customary 

international law, domestic law (in a majority of countries, to include the United States and most allied nations). 

See generally, Second, Third, and Fourth Geneva Conventions; AR 27-10; AR 27-100; AR 190-8; AR 381-10; 

DODD 5240.1-R; Executive Order 12333; U.S. DEP’T OF ARMY, FIELD MANUAL 2-22.3, HUMAN INTELLIGENCE 

COLLECTOR OPERATIONS (6 Sept. 2006); and The Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 

Stat. 2739. Prisoners are specifically covered by certain international agreements, such as Article 10 of the 

International Covenant on Civil and Political Rights. Other than the Geneva Conventions and other legal 

principles accepted as customary international law, many of these resources will not be applicable or may 

merely be advisory in nature, depending upon both the U.S., and host nation, views regarding these 

international norms. For U.S. forces, however, the Detainee Treatment Act of 2005 prohibits inhumane 

treatment without regard to the status or location of the detainee. See 42 U.S.C. 2000dd(a) (“No individual in 

the custody or under the physical control of the United States Government, regardless of nationality or physical 

location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”). 

38 Interview with Lt Col J. Johnston, British Army (ALS) (Oct. 2006) [hereinafter Johnston Interview]. 

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The structure of military courts does not follow any universal standard. Many military courts are 

made up solely of military officers, while others are presided over by civilian judges with military 

personnel acting as the fact-finding panel.39 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 confirmed by the European Court of Human Rights in several recent cases. The concern in such 

cases is that the central role of the civilian judge was an important factor in ensuring the impartiality 

of proceedings, and unlike in the U.S. system, the court determined that a uniformed judge offered no 

such guarantees.40 

Although representation by military defense lawyers is taken as a given in the U.S. 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.41 

The extent and scope of the jurisdiction of military courts and tribunals also varies greatly from 

nation to nation. Some systems follow the U.S. model and allow for concurrent jurisdiction for 

offenses that violate both military and civilian law. Some military justice systems have jurisdiction 

for “on duty” offenses, and others are more limited still, dealing only with minor military matters and 

allowing the civilian courts to have exclusive jurisdiction over more serious offenses. 

Given the unique nature of military service, a number of military specific offenses42 may have to be 

included in any code of military discipline. Recent examples drafted by military lawyers practicing in 

this sphere include those used by the ETDF and Iraqi army.43 In the former, the challenges of 

converting a former guerilla force (the Falantil) into a regular army led to the decision to limit the 

number of offenses within the military criminal code and cede control of most offenses to the civilian 

courts.44 The reverse decision was taken in Afghanistan where, historically, the military and civilian 

criminal courts had almost become conjoined. A new system of military courts and non-judicial 

punishment ceded wider jurisdiction back to the military.45 

39 British courts-martial are presided over by civilian judge advocates. The judge advocates are judges 

appointed by the Lord Chancellor, the head of the Department for Constitutional Affairs who is responsible for 

the appointment of all civilian judges in all English Courts. An Army lawyer will prosecute while the defendant 

will be represented by a civilian barrister or solicitor. The fact finding body is comprised of military officers 

and warrant officers. For further guidance, see the Armed Forces Act 2006 and subordinate legislation. 

40 See Grieves v. United Kingdom, supra note 16; Cooper v. United Kingdom, 39 Eur. H.R. Rep. 8 ¶ 104 

(2004). 

41 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. 42 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. 43 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. See 

http://en.wikisource.org/wiki/Order_22:_Creation_of_A_New_Iraqi_Army (last visited July 11, 2011). 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, see 

www.un.org/peace/etimor/untaetR/2001-12.pdf (last visited July 11, 2011). 44 Johnston Interview, supra note 38. 45 See Watts & Martin, supra note 9. 

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II. Civil Law Systems 

The term “civil law” is commonly used in two different meanings: First, it distinguishes the law that 

applies to disputes between private individuals from the law that governs the relationship between 

individuals and the state (e.g., criminal law or constitutional law). Secondly, the term is used to 

describe a legal system distinguishable from common law systems. This section addresses the latter 

meaning, describing its characteristics, principles and drawing comparisons with a common law 

system. 

The civil law system is predominant in most of the world, in particular in continental Europe, South 

America, parts of Asia (including Iraq) and Africa,46 while the common law system, on the other 

hand, is found in the United States (except Louisiana), the United Kingdom, Canada (except Quebec) 

and other former colonies of the British Empire. 

The historical origins of civil law can be traced back to Roman law, especially the Corpus Juris 

Civilis of 534 as later developed through the Middle Ages by legal scholars. However, Canon law, 

local legal traditions, the philosophical developments of the Enlightenment, and elements of the 

Islamic legal tradition have also had a significant impact on its development. 

Civil law today is predominantly characterized by the legislative efforts of continental European 

states to transcend legal influences and customs into a modern, coherent and complete system of legal 

codification in the 18th and 19th century. The most influential codifications originated from France 

(Civil Code of 180447 and Code of Criminal Procedure of 180848) and Germany (Civil Code of 

189649)

50. These codifications became the basis for the methodological concepts and principles of 

civil code systems world-wide.51 

A. The Civil Law Ideal of Separation of Powers 

The most important characteristic of the civil law system is its emphasis on complete separation of 

powers, with all lawmaking power assigned to a representative legislature. The idea of (complete) 

separation of powers was advanced by Montesquieu as part of the intellectual revolution taking place 

at the eve of the French revolution in 1789.52 

Although common law systems like the U.S. system also incorporate the principle of separation of 

powers, their approach and philosophy in doing so differs from that in civil law countries. In both the 

United States and the United Kingdom, the judiciary serves as a progressive force on the side of the 

individual against abuse of power by the state.53 Experiences in civil law countries, on the other 

hand, where judges had often served as the extended arm of repressive governments, supported the 

46 See JOHN MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE 

AND LATIN AMERICA 2 (2d ed. 1985) [hereinafter “MERRYMAN”]. 47 Also referred to as Code Napoleon or Code Civil. 48 Also referred to as Code d’Instruction Criminelle or CIC. 

49 The Bürgerliches Gesetzbuch or BGB. 50 The Code Civil of 1804 and the Civil Code of 1896 are still in force in France and Germany; of course, being
 

frequently amended by the respective legislative powers since that time.

51 It is noticeable that the spread did not singularly occur through military conquest but often occurred 

voluntarily in an effort at modernization, in particular in Asian countries. In many cases, the adaptation of the 

foreign code was almost identical to the donor system, while in other cases the codification added elements of 

the local legal traditions to the foreign body of law that was adapted.

52 See MERRYMAN, supra note 46, at 15. 53 See id at 16. 

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idea of restricting judicial power by emphasizing the primacy of the legislative power.54 As a result 

of this emphasis, civil law systems consider any judicial lawmaking power as undemocratic and 

consequently illegitimate. Given this approach to judicial power, from the civil law perspective, a 

legal system that gives judges lawmaking power, violates the ROL.55 Though, the jurisprudence does 

shape the existing laws by interpreting the law, and especially defining the meaning of abstract terms 

used in the respective codes. 

Judges in civil law systems are thus compelled to find a basis for their decisions within the code. 

This will often reflect in the style of legal opinions, which tend to be more formal in civil law systems 

as judges generally focus their reasoning to the application and interpretation of the wording of the 

code as well as of its spirit and purpose to the factual situation presented to them. 

This theoretical model, however, applies differently to criminal law than to civil law. While in both 

areas of law courts have to reason on the basis of a code, it is only in criminal law that a strict 

prohibition to apply analogies in disfavor of the accused persists. In matters strictly between 

individuals, in contrast, judges will often draw analogies from statutory provisions to fill lacunae and 

to achieve coherence. By contrast, in most common law systems, “civil” cases are still frequently 

governed by case law, with statutes serving to provide specific rules in specific areas. 

One notable exception is the practice of modern constitutional courts. Such courts act in many 

aspects more like common law courts than classical civil law courts. In Germany, for example, the 

constitutional court possesses the authority to declare void acts of the legislator for incoherence with 

the German constitution, the Grundgesetz, as interpreted by the court. 

B. Specific Aspects of Civil Law 

1. Sources of Law and the Role of Judges 

The methodology of civil law systems is by and large based on the completeness of written, formal, 

and hierarchically organized law. Therefore, original sources of law are the constitution and laws 

passed by legislation, with the constitution overriding all contradicting legislation, and the legislation 

enjoying primacy over all acts of the executive branch of governance. 

Most civil law systems accept neither the principle of stare decisis56 nor custom as a primary source 

of law. They do, however, use court decisions and custom to greater or lesser degrees as sources of 

law.57 Moreover, precedents serve a persuasive role in most civil law systems, somewhat analogous 

to the common law consideration of “persuasive authority.” In practice, judges are generally 

expected to follow or at least take into account decisions of courts of the higher or the same level. 

The French and German fear of a “government of judges” in the 18th and 19th century, and the 

prevalence of the dogma of the separation of powers, resulted in the power of civil law judges being 

restricted. While they usually enjoy great respect in general, when compared to their common law 

brethren, civil law judges are less-widely known and courts are viewed as faceless institutions, but 

ones that are objective and impartial in their findings, and which seek the absolute “truth” and justice. 

54 Ironically, this idea of limiting judicial authority somewhat resembled the position taken by the monarchical 

rulers which had likewise attempted to restrict judicial power by demanding strict adherence to their legislation. 55 See TAMANAHA, supra note 1, at 124–25. 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 allows for stare decisis. 57 See MERRYMAN, supra note 46, at 83. 

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2. Legal Science and Techniques 

Legal science in the civil law world is primarily the creation of German legal scholars of the 

nineteenth century.58 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.59 Therefore, legal science emphasizes systematic values like general 

definitions, classifications, and abstractions, and uses formal logic as its primary procedure. 

This “legal science” thinking directly influences the way the ROL needs to be established in civil 

law-descendant host nations. The foundation for a common law regime can consist of a few general 

rules, and the legal system can develop by applying those principles to cases as they arise, with the 

rulings in those cases serving as rules for future ones. In a civil law regime, a complete set of specific 

rules, a code, must be established before courts begin hearing cases, and the adaptation of the law to 

new circumstances has to happen through legislative rather than judicial action.60 

3. Civil and Criminal Courts and Procedure 

Most common law jurisdictions divide their courts between criminal and civil forums. In the civil 

law system, however, the courts are divided into “ordinary” courts (which include civil, criminal, and 

usually commercial courts), administrative courts, and a constitutional court. Following the French 

model, the highest level of the ordinary courts is usually the Supreme Court of Cassation. That court 

normally only reviews the legal determinations of lower courts; reconsideration of the facts of the 

case is usually excluded.61 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. 

As is typical in common law systems, most civil law systems include separate codes for criminal and 

civil procedure as they have separate civil and criminal courts. A typical civil proceeding in civil law 

countries is divided into three stages: a brief preliminary stage, in which the pleadings are submitted 

and the judge is appointed; an evidence-taking stage, in which the judges take evidence; and a 

decision making stage in which the judges hear the arguments and render decisions.62 

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.63 

Civil law countries tend to have abolished, or greatly reduced, the role of juries, with “bench” trials 

by professional judges alone being perceived as being more practical and objective. That said, some 

civil law systems do have juries in civil cases, while others ensure popular participation through a 

tribunal made up of lay judges. 

The questions of what constitutes a crime and how criminals should be punished are in principle 

similarly approached in both civil law and common law countries. Both systems share many 

similarities such as the strict separation between investigative and trial authority, the presumption of 

innocence, the right to remain silent, or the general right to counsel.64 

58 See MERRYMAN, supra note 46, at 61. 

59 Id. at 62. 60 Id. at 67. 61 Id. at 87. 62 Id. at 114. 63 Id. at 115. 64 Cf. EUROPEAN CRIMINAL PROCEDURES (Mirrielle Delmas-Marty & J.R. Spencer eds.) (2005).
 

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On an abstract level it can be said that the purpose of the criminal procedure for the civil law system 

is the revealing of the material or absolute truth while the common law system considers it sufficient 

to establish the procedural or relative truth between the two parties in dispute. This distinction 

between the common law and civil law approaches to criminal justice has lost some of its significance 

due to similarities in the developments of the law in European States and the United States over the 

last century. However, the criminal procedure in civil law systems, often described as inquisitorial,65 

in contrast to the common law’s adversarial or accusatorial process, still operates quite differently and 

still attributes somewhat different responsibilities to the actors of the process of criminal justice. 

4. Pre-Trial Phase 

One of the fundamental differences between the two systems is the operation of the pre-trial 

proceedings and their relevance for the actual trial. In civil law systems, the pre-trial investigation is 

a part of the process of adjudication of criminal cases. The pre-trial phase, which will be primarily 

written and non-public, will often but not necessarily be separated into an investigative and an 

examining phase. During this phase, a governmental official (usually a judge, a judicial magistrate, 

or a prosecutor) oversees or directs the police’s efforts to establish the facts of the case and collect 

evidence of the guilt or innocence of the suspect. Where the investigation is not overseen by a judge, 

a decision by an investigative judge will often be required for certain investigative activities such as 

detention or searches. 

The investigative efforts will eventually result in a complete written record containing all relevant 

evidence. If an examining judge subsequently evaluating the record concludes that a crime was 

committed by the accused, the case will be taken to trial, if not, the accusations will be dropped.66 

The investigative record and the evidence contained therein will often provide the basis of the trial 

judge’s decision.67 The common law, in contrast, strictly separates between the investigation and the 

trial and allows only the evidence collected during the trial to be used as a basis for the judge’s 

decision. 

Accordingly, the pre-trial phase and its actors play a more significant role in the criminal process 

under the civil law system than in most common law systems.68 While arguably the investigative 

phase of the civil law system is more suitable to establish all relevant facts before a decision on the 

proceedings to the trial stage is taken, JAs should be aware that the traditional role of the pre-trial 

phase in civil law systems historically often meant that pre-trial proceedings were kept secret, 

substantially fewer rights were granted to the defendant, and pre-trial proceeding were much more 

prone to abuse. The pre-trial phase may also delay the procedure significantly. In many states, 

significant developments over recent decades—in particular due to international human rights 

obligations—have been undertaken to remedy these potential weaknesses. 

65 The term “inquisitorial” is rarely used in civil law countries as it invokes somewhat misleading associations to 

the criminal justice process that existed prior to the 18th and 19th century European reform in this field. To 

many civil code lawyers, the “inquisitorial procedure” nomenclature is more associated with a procedure in 

which a single person initiates the criminal process, directs the investigation, conducts the trial and decides on 

the verdict. They would consider their own system rather to be “mixed” or “hybrid” with inquisitorial elements. 

Likewise common law criminal procedure is not strictly “adversarial” given to the role of the police in 

gathering evidence both for and against the defendant.

66 Some civil law countries, such as Germany and Italy, have diminished the role of the examining phase and 

transferred most of its responsibilities to the prosecution. 

67 The practical and legal relevance of the pre-trial results may vary widely between jurisdictions. 68 The impact of the pre-trial investigation on the actual trial decision may have been what has caused the 

historically widespread perception of the civil law system lacking a presumption of innocence as trials initiated 

on the basis of the pre-trial record were more likely to lead to a conviction. 

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5. Trial and Appeal 

As a result of the thoroughness of the pre-trial phase(s), the trials in civil law and in common law 

systems differ significantly. Perhaps the most striking difference is that the investigative record is 

equally available to the defense, the prosecution, and the trial judge in advance of trial in civil law 

systems. The main function of a criminal trial is to present the case to the trial judge and, in certain 

cases, the jury, and to allow the lawyers to present oral arguments in public. 

During the trial phase, JAs should be aware of the different role of the judge. In civil law systems the 

judge “owns” the trial, calling and examining witnesses, determining when it will commence and end, 

and reaching a decision, on the basis of a personal conviction of the truth, after a free evaluation of 

the evidence. As a consequence, no cross-examination of witnesses takes place; confessions of a 

defendant are seen as evidence to be freely evaluated by the judge and, in principle, no plea 

bargaining takes place.69 Contrary to common law systems, the defendant can be questioned by the 

judge but may refuse to answer. He cannot be sworn, as that would be seen to conflict with his right 

not to incriminate himself and thus is procedurally protected from the normal consequences of lying 

under oath. The defendant’s refusal to answer, as well as any answer given, is taken into account by 

the court. 

Civil law systems tend to offer more possibilities of appealing a decision, as the notion of appeal is 

seen as a natural instrument of hierarchical court control. However, JAs should be aware that, unlike 

in common law systems, governmental appeals (e.g., by the public prosecutor) requesting a reversal 

of an acquittal or harsher punishment are often permitted. 

Civil Law Procedural Changes Can Drive Assessments 

Civil law systems often operate through a variety of investigative and trial chambers 

that may be located throughout its jurisdiction. It would be counterproductive to 

undertake reform in those courts without first understanding how civil law procedure 

affects how courts are organized. In order to learn about the locations of the various 

chambers and the types of cases that are heard before them, their physical location, 

and key personnel, you must first learn about how the prevailing legal system 

requires courts and court officers to be organized. 

III. Religious Legal Systems and Sharia 

The main religious legal systems of the world are Hindu law, Islamic law, and Jewish law, but this 

Handbook will focus on Islamic law due to its significant impact on secular legal systems in many 

parts of the world and, of course, the location of current ongoing stability operations. One of the 

fundamental features of modern Islamist movements is their call to restore the Sharia as the dominant, 

if not sole, source of law in Muslim countries. As was demonstrated by the Iranian Revolution70 and 

69 However, some civil law systems have developed instruments that allow to a limited extent for the 

prosecution to suggest punishments that, if the defendant does not object to their application, permit the 

prosecution to drop the case and avoid trial. Those instruments, as the plea bargaining process does, always 

invoke questions with regard to credibility, equality and transparency of justice and require effective remedies 

and checks to ensure that consent to a punishment without trial is conscious and real. 70 On the Iranian Revolution of 1979, see NIKKI R. KEDDIE, MODERN IRAN: ROOTS AND RESULTS OF 

REVOLUTION (2003). 

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the Taliban’s71 rule in Afghanistan, such a move has the capacity to affect world politics and 

international security. 

A. The Sharia 

The totality of Islamic law is known as the “Sharia,”72 which literally means the path to follow. The 

substance of the Sharia is found in the primary sources of the Quran and the Sunna, as well as in the 

corpus of Islamic jurisprudence (fiqh), which is the work of the Muslim legal scholars or jurists 

(fuqaha) who have interpreted those primary sources. The Sharia includes not only relations between 

humans (muamalat), such as property rights and contracts, but also “religious” obligations (ibadat), 

such as dietary rules, the methods of prayer, and the punishments for certain offenses against God 

(such as theft and adultery). 

In the sixth century, when the Prophet Muhammad was born in Mecca, there were many different 

legal systems prevalent in the Near and Middle East. Justinian’s Digest had been completed three 

decades before, and the Jerusalem Talmud a century or two before that. These sources of law were 

well known by Muslim jurists. Although the influence of these legal traditions on Islamic law and 

legal science has been the source of controversy, the emergence of Islam was clearly a turning point 

in the Middle East’s legal tradition.73 

Muslims believe that God’s directions to the community of Muslims (the umma) were revealed to the 

Prophet Muhammad over a period of twenty-three years in the early seventh century C.E. Shortly 

after the Prophet’s death, these revelations were compiled in the Quran. The Quran does not contain 

much law in the modern western sense; only around 500 of the approximately 6,000 verses of the 

Quran pertain to such “positive” law. Nevertheless, it constitutes the first of the two primary sources 

of the Sharia. 

The Sunna, the actions and sayings of the Prophet as a clear manifestation of God’s will, constitutes 

the second of the two primary sources of Islamic law. It is believed that the actions and sayings of the 

Prophet reflect the general provisions of the Quran, and also give guidance on matters on which the 

Quran is silent. The content of the Sunna is found in the form of hadiths, reports of what the Prophet 

said or did which can be traced back through a continuous and reliable chain of transmission to the 

Prophet himself. Much early Islamic scholarship was devoted to determining the authenticity of the 

many reported hadith. Eventually the Sunnis (those who follow the Sunna of the Prophet, who now 

constitute the majority of Muslims) settled on six so-called “canonical” or authoritative collections of 

hadith, while Shiites (a term discussed below) have their own collections based on the hadiths of both 

the Prophet and the Shiite Imams. 

The third source of law is ijma, which consists of a doctrinal consensus on specific issues among all 

the fuqaha (legal scholars). Ijma covers some settled issues such as the direction of the required daily 

prayer (toward Mecca), but there continues to be considerable debate among legal scholars about the 

scope and substance of matters on which ijma may exist. It is thus a limited source of legal rules. 

Finally, Sunni legal scholars use various forms of qiyas, or analogical deduction, to determine the 

correct legal ruling on matters for which there is no specific rule in the primary sources, or on which 

there is no ijma. Qiyas is best considered as a method of legal interpretation rather than a source of 

law, although it is sometimes stated to be the fourth source of the Sharia. It should be noted that 

Shiite scholars do not employ qiyas to derive legal rulings; rather, they use a broader range of logical 

analysis to apply to new legal problems, subsumed under the concept of aql, or intellectual reasoning. 

71 Regarding the Taliban, see THE MIDDLE EAST AND ISLAMIC WORLD READER 243 (Marvin E. Gettleman and 

Stuart Schaar eds., 2003). 

72 See WAEL B. HALLAQ, SHARIA: THEORY, PRACTICE, TRANSFORMATIONS (2009). 73 See CHIBLI MALLAT, INTRODUCTION TO MIDDLE EASTERN LAW (2007).
 

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B. The Application of the Sharia 

The qadi is a judge in the classical Islamic legal system. Sharia dispute resolution is a kind of “lawseeking trial” not connected with the simple application of pre-existing norms, or simple subsumption 

of facts under norms. The dispute resolution is a dynamic process, one in which all cases may be 

seen as different and particular. The “law” of each case is thus different from the law of every other 

case. The parties are seen as partners of the qadi in the law-seeking process, which gives the 

procedure some similarities to mediation. Oral testimony is preferred over written evidence, the qadi 

does not give written reasons for his decision, and cases are not reported. Precedent, therefore, is 

lacking. 

The mufti (jurisconsult) plays a role similar to that of the university legal scholar in civil law systems. 

Coming from the ranks of the fuqhaha, and possessing years of study and great analytical ability, the 

mufti brings the law to bear on particular cases. An opinion of the mufti, the fatwa, may be sought by 

private persons who desire an answer to a legal problem, or by judges in Sharia or other courts who 

need to know the Sharia rule applicable in a given case. Today, muftis often issue fatwas over the 

internet to Muslims worldwide who seek to know what the Sharia requires in a given situation. 

Again, Shiite tradition is slightly different in this regard; the appropriate term for a Shiite jurisconsult 

is mujtahid, and they have wider scope of interpretive authority, as noted below. 

It should be understood that even in the classical era, Sharia courts, along with qadis, were not the 

only legal bodies operating in Muslim areas. The secular rulers had their own courts and procedures 

to deal with matters that fell outside the scope of the Sharia, although they were always subordinate to 

the Sharia. In the modern Muslim world, Sharia courts and law have often been relegated to a 

subordinate role to that of state judicial bodies and legal codes. Sharia courts may exist side-by-side 

with secular ones (such as Indonesia), they may be relegated to certain areas of the law, such as 

family law courts (as in Egypt), they may be eliminated almost entirely from the public sphere (as in 

Turkey), or in some cases (such as Saudi Arabia) they may retain substantial jurisdiction over legal 

disputes. Similarly, during the Ottoman era, muftis were increasingly absorbed into the state 

bureaucracy, and today many Sunni Muslim countries have official muftis appointed by governmental 

authority. However, many muftis both within and outside official channels do continue to exercise 

independent authority and influence among much of the population. Judge advocates performing 

ROL operations in the Muslim world would be wise to know the importance of these muftis. 

C. The Substantive Sharia 

The Sharia seeks to promote and protect five primary values: religion, life, offspring, property, and 

rationality.74 Moreover, it classifies all actions as either forbidden (haram), discouraged, neutral, 

recommended, or obligatory. In the western sense, only the first and the last of these constitute legal 

categories, strictly speaking, and in the Islamic tradition only those two categories are deemed 

enforceable by temporal religious or secular authorities. 

Based on the five values noted above, much of the Sharia is devoted to the areas of family law 

(marriage, divorce, and inheritance), commercial transactions (including contracts, taxes, and waqfs, 

or trusts), and a relatively narrow area of criminal law. 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 

traditions of pre-Islamic law, the principle of equality of men and women as understood in Western 

law systems is not reflected in the Sharia. The Quran contains some verses that have been used to 

74 See BERNARD G. WEISS, THE SPIRIT OF ISLAMIC LAW 146 (1998). 

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suggest that men and women are not equal.75 On the other hand, Islamic law generally has granted 

women substantial rights and financial security. A daughter is granted a share of inheritance, and a 

woman can keep all property that she brings into a marriage or that she acquires during marriage. 

Shiite law generally provides greater rights for women within this field than Sunni law. Reform of 

family law has taken place in most modern Muslim countries, and further reform is a high priority 

among many Muslim feminist scholars.76 

At first sight, this discussion of rights without equality may appear somewhat contradictory. 

However, it is a useful reminder that Western concepts of “equality” are not analogous per se to 

“rights”. It should also serve as a cautionary note that JAs, inculcated, as they are likely to be, in 

Western thinking, should be cautious about rushing to judgment on the basis of their, most likely, 

limited reading, knowledge, and understanding of Sharia. Notwithstanding their own personal views, 

a JA who is engaged in ROL work, particularly in a country where observance of Sharia may well be 

a constitutionally mandated requirement, would be well advised to remember the importance of ROL 

program design that is, as one coalition military legal advisor put it “Culturally [and host nation legal] 

compliant, not Western reliant.”77 

Commercial law is characterized by a positive view of business and commerce, but with an emphasis 

on fairness that limits the scope of commercial transactions. This is reflected primarily in the 

prohibition on interest and the unfair distribution of risks. For example, unlike in Western societies in 

which debt is fundamentally distinguished from equity by the allocation of risk, in Islamic countries, 

banks frequently share a portion of the risk in the form of partnerships with depositors. Islamic 

banking that seeks to promote commerce within the limits set by these prohibitions is an expanding 

and increasingly important area of international finance.78 

Criminal law was and is primarily a matter left to the secular or state rulers. However, five offenses 

(hudud) were deemed to be offenses against God, as they violated the five primary values noted 

earlier. Thus, the Quran and Sunna prescribe specific punishments for theft, highway robbery, 

fornication, false accusation of fornication, and (according to some schools of jurisprudence) 

apostasy, as these acts especially threatened religion, property, family and offspring. Other offenses 

that threatened public order (tazir or siyasa) were left to the discretionary punishment by state 

authorities. Acts resulting in personal injury were punished or not according to the victim, though 

state authorities could also enforce sanctions in such cases. Importantly, the hudud offenses were 

rarely imposed throughout most of Islamic history, as the standards of proof were very high, and their 

frequent use by the Taliban in Afghanistan was inconsistent with this tradition.79 

D. International Law and Jihad 

International law, especially the law of war, plays an important role in the Sharia. Here the central 

concept is jihad, which encompasses both the jus ad bellum and the jus in bello. Like the law of war 

in the West, but beginning much earlier and, in the classical era, in comparatively more sophisticated 

forms, jihad as interpreted and developed by the jurists was transformed over time and in response to 

75 E.g., THE QURAN 2:228: “Women also have recognized rights as men have, though men have an edge over
 

them;” id. 4:34: “Men are the masters (protectors, maintainers) over women . . . . The righteous women are 

devoutly obedient . . .”

76 See JUDITH E. TUCKER, WOMEN, FAMILY, AND GENDER IN ISLAMIC LAW (2008). 77 There is also anecdotal evidence to suggest that actions which fail to follow this “bumper sticker” quote 

reinforce the perceived belief by some that Islam itself is in some way under attack from Western ideology. 

Such a belief, whether valid or otherwise, is likely to undermine not only ROL efforts but also COIN principles 

and stability operations efforts. 

78 See MAHMOUD A. EL-GAMAL, ISLAMIC FINANCE: LAW, ECONOMICS, AND PRACTICE (2006). 79 See RUDOLPH PETERS, CRIME AND PUNISHMENT IN ISLAMIC LAW (2005). 

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particular historical developments, particularly the preservation of the original umma in Medina 

against its Arab and other tribal enemies, the rapid and extensive conquests of the Arab armies in the 

first two centuries of the Islamic era, the destruction of the caliphate by non-Muslim conquerors 

beginning in the thirteenth century, and European colonialism commencing in the nineteenth century. 

Moreover, jihad has always been subject to a diversity of views within the ranks of the scholars and 

among Muslims in general. This diversity, and the intensity of the debate, has become especially 

pronounced in the current era, as the Muslim world both integrates into and seeks a recognizable 

voice in the western-dominated system of international law. 

Many current Muslim scholars, referring to the original practice of the earliest Muslim community, 

insist that jihad has a primary meaning of an individual’s effort or struggle to comply with the Sharia, 

and only secondarily does it refer to the (only) legitimate reason for engaging in armed conflict. 

Moreover, they also argue that in the latter sense, it authorizes only defensive warfare. The later Arab 

conquests required a rethinking of the grounds for engaging in jihad, but many scholars claim that in 

the modern era only the original, defensive concept is legitimate. Moreover, virtually all of the 

classical jurists stated that jihad in any form may only be declared by properly designated legal 

authority. Finally, all of the sources of law contain rules for the conduct of warfare that reflect 

principles similar to the modern western law of armed conflict, such as a prohibition on poisonous 

weapons, protection of noncombatants, and accepting surrender without reprisals.80 Although it is 

possible to extract phrases and passages from the Quran and the Sunna that seem to justify constant 

and aggressive war against non-Muslims, this is not the mainstream interpretation of the sources by 

the majority of legal scholars. 

Other aspects of international law addressed within the Sharia include the treatment of non-Muslims 

in Muslim lands. This was historically relatively favorable, with so-called people of the book (those 

who adhered to a monotheistic faith) usually (though not always) allowed to conduct their own 

affairs, upon payment of special taxes and certain other legal liabilities. International agreements 

require compliance (the principle of pacta sunt servanda). 

E. Sunnis and Shiites 

The difference between Sunnis and Shiites is a matter of geopolitical importance, but it is frequently 

poorly understood by Westerners. Although a complete treatment of the issue is beyond the scope of 

this Handbook,

81 it is helpful for ROL practitioners to understand the basic distinction, especially as it 

applies to law. 

After the Prophet Muhammad’s death, the issue arose of succession to the leadership of the 

community of believers (umma). The prevailing view was that the leader should be selected by the 

close companions of the Prophet from among the leading members of the Prophet’s tribe. Within a 

few decades the leadership became hereditary, but this came to be accepted as legitimate as long as 

those rulers (caliphs, sultans, etc.) protected the Muslim realms and sustained the Islamic faith within 

their realms. 

In contrast, Shiites (the “party of Ali”) were of the view that Muhammad had designated his cousin 

and son-in-law Ali as his rightful successor, and that only Ali’s descendants (the five, seven, or 

twelve Shiite Imams, depending on the branch of Shiism) had the legitimacy to become the leader of 

the Muslim community. The majority of Shiites came to believe that the twelfth Imam was secreted 

away in the ninth century to protect him from the illegitimate Sunni caliph, and that he remains alive 

80 See MICHAEL BONNER, JIHAD IN ISLAMIC HISTORY: PRINCIPLES AND PRACTICES (2006); RUDOLPH PETERS,
 

JIHAD IN CLASSICAL AND MODERN ISLAM (2005). 81 For a fuller explanation of this topic, see VALI NASR, THE SHIA REVIVAL: HOW CONFLICTS WITHIN ISLAM
 

WILL SHAPE THE FUTURE (2006). 

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though hidden (ghaybah, or occultation), and will return in the future as the Mahdi to usher in an era 

of peace and justice. “Twelver Shiism” is the official religion of Iran today. 

This originally political dispute had a direct impact on Sunni and Shiite legal and political thought, 

resulting, for instance, in different Sunni and Shiite hadith collections. For Sunnis only the hadiths of 

the Prophet Muhammad became a valid source of law (the Sunna). Shiites, on the other hand, rely 

primarily on the hadiths (referred to as akhbar) of the Imams, who while not prophets, are deemed to 

have possessed special insight and knowledge of the Sharia. 

Another important difference is that Sunnis do not accept broad-based forms of intellectual reasoning 

as a source of law. That is why for them methods of interpreting the Quran and the Sunna to form 

new opinions, apart from fairly limited reasoning by analogy, are unacceptable. Moreover, Sunni 

muftis rely on the prior doctrinal teachings of earlier scholars within one of the four existing Sunni 

schools of jurisprudence (Shafii, Hanafi, Maliki, or Hanbali). Shiites, on the other hand, accept a 

wider scope of intellectual reasoning (aql) in interpreting the sources of the law. A Shiite legal 

scholar (called a mujtahid, rather than a mufti), among the most learned of whom may be called 

ayatollah or, at the top level, marja at-taqlid (“source of emulation”), interprets the Quran and the 

akhbar directly, and is less bound by the prior teachings of earlier scholars. He is thus somewhat 

freer than his Sunni counterparts to change his rulings and opinions over time and to evolve religious 

law with the modern times. 

Enmity between Sunni and Shiite Muslims has erupted periodically since the formative years of 

Islam, although Sunnis and Shiites have also often coexisted peacefully in many places. Today, some 

“radical” Sunni traditionalists consider Shiism to be heretical, and therefore a primary target of jihad. 

Sunni Muslims today represent approximately 85% of the world’s 1.25 billion Muslims, and are the 

majority in most Islamic countries except Iran, Iraq, Bahrain, Azerbaijan, Yemen, Oman, and 

Lebanon. In some places Sunnis discriminate against Shiites, though much of the discrimination has 

economic rather than religious or legal roots. 

F. Conclusion 

From the Western perspective, questions of constitutionalism, human rights and equality are central to 

legal thought. From the Islamic perspective, it is the recognition of God’s word that drives the legal 

system. These two approaches can often be difficult to reconcile in a single legal system. 

Consequently, Western countries conducting ROL operations in Islamic countries must be 

particularly conscious of problems of imposing a Western legal point of view, since doing so is likely 

to create substantial resistance and will prevent the legal system from being internalized by a Muslim 

populace. Unlike the set of highly specific religious Christian laws, which are separate from state 

law, Islamic law is very broad and is therefore easily violated by an insensitively designed secular 

system. 

IV. Combined Systems 

In addition to civil law, common law, and religious systems, there are also mixed legal systems in 

much of the world. The family of mixed law systems consists mainly of two different mixtures of 

legal systems: the mixture of civil and common law systems and the mixture of civil law systems and 

religious legal systems. 

Systems representing a mixture of civil and common law systems include Botswana, Lesotho, 

Namibia, the Philippines, Puerto Rico, Quebec, Scotland, South Africa, Sri Lanka, Swaziland, 

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Zimbabwe, and Louisiana here in the U.S.82 The European Union, too, is something of a mixed 

common/civil system. Civil/religious mixed systems frequently involve Islamic law, including 

Algeria, Egypt, Indonesia, Iraq, and Syria. Iran claims to have an exclusively Sharia-based legal 

system, but in practice it too is a mixed civil/Islamic system, one that often finds it difficult to 

reconcile the various traditions within its revolutionary Islamic framework.83 

Particularly relevant for the ROL practitioner is that mixed systems are generally not organically 

developed legal systems. Usually, mixed legal systems are created when one culture imposes its legal 

system on another culture, usually by conquest. Thus, the presence of a mixed system is a likely 

indication of some tension between the populace’s underlying norms and the legal system they live 

under. Frequently, however, the foreign legal system will have been internalized over time (e.g., in 

the case of India), rendering it legitimate in the eyes of the populace. 

V. Recognized Alternatives to the Formal Court System 

Although lawyers tend to focus on courts, many other dispute resolution mechanisms are available for 

use in conducting ROL operations. Some of them, like mediation and arbitration, have become part 

of the legal mainstream in developed countries. Others, including traditional, or customary, justice 

systems and remedies, are more widely utilized in certain some portions of the developing world. 

Some, such as truth and reconciliation commissions and property claims commissions, are 

specifically used in the post-conflict environment. But whatever the environment, JAs should be 

aware of and consider the use of less traditional legal dispute resolution mechanisms. 

A. 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 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 non-binding 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 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. 

A judge advocate may not be the best person to act as the mediator given their lack of independence 

and position within the military. However, JAs may be in a position to recommend mediation and to 

use their skills to appoint the correct person or persons to act as mediator. 

82 See William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L.
 

REV. 677, 679 (2000). 83 See ASHGAR SCHIRAZI, THE CONSTITUTION OF IRAN (1997). 

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B. Arbitration 

As opposed to mediation, arbitration provides for a solution that is both binding and enforceable.84 

Arbitration allows for a more flexible and tailored solution to dispute resolution and traditionally 

tends to be limited in its application to commercial disputes, both domestic and international. 

Although arbitral awards are binding, the arbitration process itself is entirely defined by the parties. 

As such, there is no one method or practice of arbitration. Standing arbitral bodies85 have detailed 

rules of procedure that are often adopted by parties in clauses dealing with dispute resolution. 

Historically, arbitration decisions were provided without reasoning, but today, most if not all arbitral 

awards come with a full written decision. 

The flexibility of arbitration allows for many perceived advantages over traditional forms of 

litigation. The parties are free to agree over what laws or procedures the panel will use in resolving 

the dispute, to ensure confidentiality (important in sensitive commercial matters) and to allow for 

finality by preventing further appeals from the decision of the arbitrators. 

When assessing the capacity of civil courts in any theater of operations, JAs 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 maintaining independence from (and impartiality toward) a contested government. 

C. Customary, Traditional, or Informal Justice86 

Those who crave justice will not necessarily care whether it is state provided or locally resourced, as 

long as it exists in one form or another. The Taliban’s ability to provide justice (that was accessible 

and effective), albeit not in the sense that many readers of this Handbook will recognize, is often 

credited as being one of the major reasons for their historic, and ongoing support in Afghanistan. 

Dispute resolution by way of customary justice systems has a long history of use in many societies. 

Notwithstanding that fact, it is a resource which has historically been overlooked in some recent UN 

sponsored attempts to reconstruct effective and efficient judicial systems in former conflict zones.87 

That is, perhaps, understandable if ROL efforts are simply seen as being part of a government based, 

state building exercise. But it is less so when one realizes that in many, particularly conflict affected, 

countries, customary justice systems are often viewed as being the most legitimate and most widely 

84 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. 

85 For example the London Court of International Arbitration, the American Arbitration Association and The 

Middle East Center for International Commercial Law. 86 For reasons of expediency alone, this Handbook typically uses the term “Customary Justice”. Editor’s Note: 

The Editor recognizes that this Handbook does not, in any sense, do justice to this complex, but crucial, part of 

the ROL jigsaw. It is intended that future editions will remedy that issue. For an excellent introduction to this 

subject, including seven country-specific case studies, within the specific context of conflict affected societies, 

see CUSTOMARY JUSTICE AND THE RULE OF LAW IN WAR TORN SOCIETIES (Deborah Isser ed.) (U.S. Institute 

of Peace Press, 2011). See also John Dempsey & Noah Coburn, Traditional Dispute Resolution and Stability in 

Afghanistan, USIP PeaceBrief 10 (Feb 16, 2010). 87 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 King’s College London – International Policy Institute, East Timor Post 

Operation Report, http://www.jsmp.minihub.org/Reports/otherresources/Peace4Timor_10_3_03.pdf (last visited 

June 13, 2011). 

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accessible dispute resolution mechanism. However, the very recent history, and development, of 

ROL thinking and practice now appears to have begun to recognize the importance, and utility, of this 

form of justice mechanism, and particularly so in conflict affected countries. 

While they are unlikely to deliver the ROL writ large, customary justice systems certainly have a role 

to play in restoring the ROL. Judge advocates would be wise to consider whether, and how, such 

methods should be incorporated into their ROL programs, not forgetting that, by doing so, it is likely 

to bring its own challenges. For instance, despite the fact that they are often viewed as “local level” 

issues, the JA ROL practitioner must understand that incorporating customary justice systems in the 

ROL line of operation will require a “high level” acceptance, not only from the JA’s own chain of 

command, but also from the host nation within which they are working. Questions of how, if at all, 

customary justice should be integrated into the formal state justice system will need considering. 

Will any such association, particularly where the state system is viewed with mistrust, in fact 

undermine the perceived legitimacy of a customary system? Will outside “assistance” from well 

intentioned ROL practitioners do likewise? How, if at all, should the ROL practitioner attempt to 

address customary dispute resolution practices that violate human rights norms? One thing is clear, 

customary justice systems must be approached with a very strong awareness of the social and cultural 

context in which they operate if ROL programs which engage with them are not to fall foul of the law 

of unintended consequences. That awareness will take time, and resources – things that JAs will 

rarely have an abundance of in a deployed environment – and it is for that reason, as well as those 

mentioned above, that engagement in this area must be properly planned for in the wider ROL 

mission. 

Traditional Remedies in Sierra Leone 

Traditional remedies are often characterized as local forms of dispute resolution 

headed by a village chief or tribal leader. In Sierra Leone, for example, some 149 

chiefdoms make up the lowest tier of government in the country. Each chiefdom 

benefits from an elected leader and an elected council of elders from local villages. 

Moreover, the chiefdoms serve as the basic jurisdictional area for the local or 

customary courts. These courts cover 80% of the cases in the provinces and provide 

an effective, efficient, and perhaps most importantly, local method of dispute 

resolution. The Sierra Leonean customary courts deal largely with minor land, 

family or petty trade issues, they also have jurisdiction to deal with minor crimes of 

violence. Appeal from the decisions of the customary courts goes to the Magistrate’s 

court. While such systems do not offer a panacea to all problems, they are often well 

supported and trusted by the local population. 

D. Truth and Reconciliation Commissions 

Although not a part of the regular legal dispute resolution process, Truth and Reconciliation 

Commissions (TRC) have been used with increasing frequency in post-conflict settings as a method 

for helping society move past a period of past governmental abuses as part of the restoration of the 

ROL. 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 its 

history. After the de-nazification of Germany, the process of Vergangenheitsbewältigung allowed for 

individuals to admit the horrors of the former regime, attempting to remedy as far as possible the 

wrongs while attempting to move on from the past. 

Since the mid-1970s, an unprecedented number of states have attempted the transition to democracy. 

One of the significant issues many of these states have had to deal with is how to induce different 

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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.88 

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. 

The Role of Truth and Reconciliation 

One form of truth and reconciliation was undertaken by the Special Representative to 

the Secretary General (SRSG) in Afghanistan. Complaints have been made of 

serious crimes committed by the Northern Alliance during the military campaign in 

which the Taliban regime was removed from power. These serious allegations 

possibly implicated senior members of the current regime. The unwillingness of the 

UN to conduct a thorough investigation into such allegations was based on 

jurisdictional concerns but was heavily swayed by the risk of undermining the current 

transitional administration. The SRSG concluded, on balance: “[O]ur responsibility 

to the living has taken precedence over justice to the dead.”89 

In an attempt to promote 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 TRCs 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, can re-open, rather than heal, wounds. 

E. Property Claims Commissions 

Like TRCs, property claims commissions are another exceptional form of dispute resolution in postconflict 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 CPA90 in Iraq. While not a court of 

88 Twenty-seven nations have adopted such an approach since 1970. On TRCs generally, see the US Institute of 

Peace web site, which has an extensive library on TRCs, http://www.usip.org/resources-tools/usip-library (last 

visited July 11, 2011). 

89 United Nations Special Representative of the Secretary General, Jean Arnault. 

90 See Coalition Provisional Authority Regulation 8, as amended by Regulation 12. 

http://www.iraqcoalition.org/regulations/20040114_CPAREG_8_Property_Claims_Commission_and_Appendi 

x__.pdf (last visited June 13, 2011) and 

http://www.iraqcoalition.org/regulations/20040624_CPAREG_12_Iraq_Property_Claims_Commission_with_A 

nnex_A_and_B.pdf (last visited June 13, 2011). 

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law per se, it can be a powerful tool in rectifying past injustices and can do so in a way that is 

consistent with ROL values. 

VI. The Implications of Gender for Rule of Law Programs 

Gender issues can play an important role in the ROL and consequently in ROL operations. First, 

measures to provide for the protection of basic human rights and fundamental freedoms will likely 

include some provisions to eliminate discrimination against women. Women and women’s issues are 

often marginalized in societies subject to U.S. ROL programs and, therefore, likely to require some 

degree of reform in order to bring the host nation law into line with basic international human rights 

norms, as discussed earlier. Such substantive rights are a matter of considerable cultural sensitivity 

and are likely to be addressed by senior civilian leaders, leaving little room for JAs to engage in 

substantive gender discrimination reform. 

But there is a second way in which JAs may become directly involved in gender-related issues in the 

conduct of ROL operations. Importantly, JAs should not overlook the role of women in the 

establishment of the ROL. Although women’s inclusion and equal participation can be a source of 

resistance in some cultures, the participation of women in government and the reconstruction process 

can also be a tremendous opportunity. In many post-conflict societies, the ranks of qualified men will 

be dramatically limited, either through long-running warfare or by their having had principal roles in 

a previous, illegitimate regime. Moreover, it is difficult to reverse longstanding discrimination 

against women and other human rights violations without the participation of many previously 

disenfranchised segments of society in the establishment and development of a legitimate and capable 

government, including women.91 The role of women as key players in sustaining viable peace in 

many post-conflict societies is well documented. Where the legal and social framework of the 

country has allowed women the opportunity to participate fully, women have sustained critical sectors 

such as agriculture, education, and local commerce.92 Moreover, as household leaders, women are 

frequently opinion-shapers, and therefore need to be specifically targeted in efforts to establish the 

legitimacy of the host nation’s legal system. 

In 2000, Security Council Resolution 1325 put women onto the international agenda for 

peacemaking, peace-keeping, and peace-building for the first time.93 It called for attention to be 

given to two separate concepts: gender balance in negotiation processes for societal reconstruction94 

and gender mainstreaming in the terms of the agreements reached and their implementation. The 

latter concept—gender mainstreaming95—can be particularly useful in the development and 

implementation of ROL operations. 

91 See Robert Orr, Governing When Chaos Rules: Enhancing Governance and Participation, 25 WASH. Q. 139 

(2002). According to Winie Byanyima, director of the United Nations Development Program’s gender team, 

“We have overwhelming evidence from almost all the developing regions of the world that [investment in] 

women make better economics.” Anthony Faiola, Women Rise in Rwanda’s Economic Revival, WASH. POST, 

May 16, 2008, at A01.

92 See Faiola, id (citing examples from Rwanda, Bangladesh, India, and Brazil). 

93 See, e.g., UN Security Council Resolution 1325 (2000). (“Reaffirming the important role of women in the 

prevention and resolution of conflicts and in peace-building, and stressing the importance of their equal 

participation and full involvement in all efforts for the maintenance and promotion of peace and security, and 

the need to increase their role in decision-making with regard to conflict prevention and resolution”). 

94 Gender balance is the inclusion of both women and men at all stages and in all roles within such processes, 

for example as members of the parties' negotiating teams, as mediators, as members of contact groups or as 

"friends of the Secretary-General" assisting in the process, as advisors or consultants, and in any civilian or
 

military implementing body. See Christine Chinkin, Gender, Human Rights, and Peace Agreements, 18 OHIO 

ST. J. ON DISP. RESOL. 867 (2003).
 95 Gender mainstreaming is: 

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In order to permit practical involvement by women in ROL and other development programs, 

proactive steps may be needed at the outset to compensate for entrenched gender disparities in rights, 

education, and resources.96 Activities should aim at leveling the playing field to redress gross 

inequities.97 

Increasing Women’s Political Participation: Quotas or Capacity-Building 

Many post-conflict countries have taken steps to increase women’s political 

participation. In order to redress deficits and disparities that have occurred in 

Afghanistan because of the previous regime’s fundamentalist religious culture, a 

quota was adopted allowing women to occupy at least 25 percent of lower parliament 

seats. This resulted from pressure by Afghan women’s groups and the international 

community. The dominant parties in South Africa (ANC), Mozambique (Frelimo), 

and Namibia (Swapo) established women’s quotas on candidate lists. Other regimes 

have focused on women’s ability to run for office and hold office effectively. When 

the national council in Timor Leste rejected quotas, women’s networks sought UN 

funding to train women to compete effectively in elections. Women now comprise 

26 percent of elected constituent assembly members. In Rwanda, where women 

comprise over 60 percent of the post-genocide population, women captured 49 

percent of parliamentary seats in fall 2003 elections. Rwanda now has the largest 

female parliamentary representation worldwide.98 

Because so much of discrimination is de facto rather than de jure, effects-oriented metrics are critical 

to any ROL program intended to enable women to participate in the political process. Legal reform 

alone may lead to little change in participation by women if the ability to exercise their legal and 

political rights is limited by societal or cultural obstacles. Activities could encourage, for example: 

the creation of gender focal points in key ministries; capacity building for women candidates, judges, 

educators, and other professionals; activities addressing the specific societal or cultural obstacles 

hindering the full participation and empowerment of women,99 such as their equal right to own 

property or to receive an inheritance; programs addressing violence against women by state security 

“[T]he process of assessing the implications for women and men of any planned action, including 

legislation, policies or programs, in any area and at all levels. It is a strategy for making women's as well as 

men's concerns and experiences an integral dimension in the design, implementation, monitoring and 

evaluation of policies and programs in all political, economic and social spheres so that women and men 

benefit equally and inequality is not perpetuated.” 

See Christine Chinkin & Florence Butegwa, Gender Mainstreaming in Legal and Constitutional Affairs 12 

(2001). 

96 Elaine Zuckerman & Marcia Greenberg, The Gender Dimensions of Post-Conflict Reconstruction: An 

Analytical Framework for Policymakers, 12 GENDER AND DEVT. 70 (2004), available at 

http://www.informaworld.com/smpp/content~db=all?content=10.1080/13552070412331332330 (last visited 

June 11, 2011). 

97 The Geneva Center for the Democratic Control of Armed Forces has a series of assessment tools devoted to 

gender issues in security sector reform, available at http://www.dcaf.ch/publications/kms/series_gssrtoolkit.cfm?nav1=5&nav2=6 (last visited June 13, 2011). 

98 Id. 99 Id. 

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forces, as well as by private actors; or media initiatives that highlight women’s contributions to 

society, emphasize human rights, and present role models for women.100 

Enhancing Economic Development through Female Empowerment: Rwanda 

In the 14 years since the genocide, when 800,000 people died during three months of 

violence, Rwanda has become perhaps the world’s leading example of how 

empowering women can fundamentally transform post-conflict economies and fight 

the cycle of poverty. Reports indicate that women showed more willingness than 

men to embrace new farming techniques aimed at improving quality and profit. 

Moreover, while women make up the majority of borrowers, only one out of five 

defaulters is a woman. What does this have to do with the ROL? The answer is that 

these advances would not have happened had reforms not been passed in Rwanda 

after the genocide enhancing the legal status of women, which, for example, finally 

enabled women to inherit property. Today, forty-one percent of Rwandan businesses 

are owned by women.101 

Focus may also be needed on incorporating or promoting gender initiatives within the security forces. 

For example, even if a country’s legal system prohibits violence against women, the legal system may 

inadvertently discourage women or girls from reporting such violence. Activities could include 

gender-sensitive training for law enforcement agencies; special units staffed by women trained to deal 

with such crimes; increasing the number of female law enforcement officers; providing temporary 

shelter; or creating victim-friendly counseling and courts. 

In societies where the armed forces have a history of engaging in sexual violence against women and 

children or recruitment of child Soldiers, additional programs should be considered to combat 

impunity and tolerance for such crimes. Activities to address such issues could focus on promoting 

changes to the organizational culture within the security forces wherein commanders prevent, 

identify, halt, and punish sexual and other exploitation; the development of selection guidelines in 

order to prevent the worst offenders from staying or integrating into the new armed forces; or 

providing explicit guidelines on what is and what is not permitted behavior.102 Community 

reconciliation and trust-building measures could also be carried out to address legacies of fear and to 

build popular confidence in the security forces. 

100 For links to reports describing other activities taken in various countries and regions of the world to promote 

women’s roles in advancing peace and security, see www.peacewomen.org (last visited June 13, 2011).
 101 Faiola, supra note 91.
 102 Training for Peace Support Operations (PSO) can provide an entry point to raise issues such as sexual 

exploitation, using the UN Code of Conduct for Blue Helmets. 

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Examples - Responsive Policing Initiatives 

Law enforcement processes can often be traumatizing for victims, making them 

reluctant to come forward and report crimes. In an increasing number of reform 

efforts, special police units are created to assist the victims and witnesses of crime. 

In Namibia, a Women and Child Protection Unit was created within the police force 

to address the problem of domestic violence. It includes counseling by social workers 

and the provision of temporary shelter. A more victim-friendly court system was 

established as the cross-examination process was found to be traumatizing to victims. 

They are now able to testify behind a one-way mirror so they do not have to see their 

assailant while testifying.103 In Sierra Leone, female victims had also been reluctant 

to come forward and seek help from police. The UN Mission in Sierra Leone helped 

create a Family Support Unit within the police department that included the presence 

of female police officers. This more compassionate environment for victims to report 

crimes resulted in 3,000 reports of sexual and physical violence in 2003— 90% of 

these victims were women and girls.104 In Nicaragua, the GTZ project “Combating 

Gender-Specific Violence” partnered with a GTZ program that advised the 

Nicaraguan police on the “Roles and Rights of Women in the Nicaraguan Police.” A 

manual on Gender specific violence and public safety was developed in cooperation 

with the Security Sector Reform Advisory Program for targeted groups within the 

police and a media recruitment campaign was launched to increase the number of 

female officers. The project included a four-week regional course on “multiplierstraining in security and gender” for women police officers from Central America and 

the Caribbean. This approach was so well-received it was adopted by the 

Commission of Central American and Caribbean Police Chiefs to integrate gender 

equality into their institutional reform efforts in the region.105 

VII. Civil Society 

According to the USAID Glossary on Violent Conflict, civil society is defined as, “the collective 

entity composed of NGOs, social movements, and professional and voluntary associations that 

functions independent of the state. Civil society occupies a public space between citizen and 

government and between economy and state. It creates a network of pressure groups able to resist the 

holders of state power, if necessary.”106 Civil society organizations (CSOs) include organized NGOs, 

community-based organizations, faith groups, professional and interest groups such as trade unions, 

the media, private business companies, bar associations, human rights groups, universities, and 

independent policy think tanks. 

The involvement of civil society in ROL programs is important for wider and more inclusive local 

involvement in ROL operations and, ultimately, their sustainability. CSOs have an important role to 

play owing to their potential to give voice to the interests and concerns of the wider population, to 

103 Iivula-Ithana, Peace Needs Women, and Women Need Justice, New York Gender Justice Conference: 

UNIFEM/ILAC, 2004. 

104 Women as Partners in Peace and Security, “Policing with Compassion: Sierra Leone,” available at
 

http://www.un.org/womenwatch/osagi/resources/faces/9-Police_fsaces_en.pdf (last visited June 13, 2011).
 105 See Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), http://www.gtz.de/en/ (last visited July 

29, 2011).

106 CENTER FOR CONFLICT OPERATIONS, COMPLEX OPERATIONS LEXICON 35 (R. Scott Moore et al. eds., 4th ed. 

2011). 

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encourage reforms that are responsive to popular security and justice needs, and to actually perform 

the work of reconstruction and social support that leads to increased stability and recognition of the 

ROL. 

Too often, ROL programs are focused primarily on government and fail to adequately engage civil 

society. While short-term progress may be possible by working solely with state institutions, longerterm effectiveness requires the development of a popular and vibrant semi-public constituency for 

social progress. CSOs have a critical role to play in ROL 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 ROL project—can only come with the kind of broad social involvement that civil 

society represents. 

A. Operational Objectives for Engaging, Leveraging, and Supporting Civil 

Society 

•	 Increase the capacity of civil society to monitor government policy and practice on security and 

justice issues. 

•	 Strengthen the legal and regulatory framework within which civil society can operate. 

•	 Build trust and partnership between governments and civil society on security and justice issues. 

•	 Improve the research capacity of CSOs and their role in representing the views of local 

communities. 

•	 Develop CSOs’ technical capacity to provide policy advice and provide security and justice 

services. 

•	 Build wider constituencies in support of ROL through increasing media coverage and raising 

public awareness. 

•	 Facilitate the emergence of a broader and more representative civil society. 

B. How to Engage with Civil Society in Rule of Law 

These are some specific strategies that the ROL practitioner can use to help leverage the impact of the 

CSOs operating in the host nation. 

Police reform. CSOs can play a valuable role in working to minimize distrust between communities 

and the police. For instance, community-based policing forums should be explored as a way to build 

confidence and help tackle crime. 

Human rights and access to justice. CSOs play an important role in advocating for human rights and 

increasing access to justice. Many bar associations, independent lawyers groups and NGOs work to 

promote human rights through training of security forces, campaigning for legislation, monitoring 

allegations of abuses, and providing legal and paralegal assistance. Work in these areas is particularly 

important in countries with a repressive state or countries emerging from violent conflict and political 

transitions where rights are often not respected. 

Peace processes. Civil society can play a central role in peace processes and sometimes even in 

peace negotiations, as was the case in Guatemala during the 1990s. Their active role could be used to 

press for the inclusion of relevant ROL provisions in peace agreements. 

National development plans. Governments and international actors are wise to consult civil society in 

the development of poverty reduction strategies and country assistance plans. This creates an 

opportunity to hear the views of CSOs on security and justice issues, providing them with a chance to 

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help set development priorities, have direct input into policy-making, and mobilize local and national 

ownership in the process. 

Providing Legal Aid in Kirkuk 

One of the key challenges to promoting the ROL in Iraq is ensuring public education 

about and access to the legal system. While developing a plan to improve public 

access to the legal system, the PRT ROL team in Kirkuk learned of an organization 

of Iraqi attorneys in the area with similar goals: the Kirkuk Jurist Union (KJU). The 

KJU, which is an organization of Iraqi lawyers and other legal professionals which 

operates somewhat like a bar association, had also identified the problem of public 

education and access to the legal system and was doing what it could (with very few 

resources) to address the issue, including publishing pamphlets and brochures to 

increase public awareness. 

The PRT attorneys decided to put aside their original project and to work with the 

KJU to develop a project proposal that would build on the ongoing efforts of the 

KJU. Working with the US Agency for International Development (USAID) 

partners, the team developed a program to expand the KJU’s publication of 

pamphlets and brochures, increase its distribution, fund legal assistance lawyers 

within the KJU offices, and eventually open offices in each of the districts. The 

project not only provides face-to-face legal consultations, but also funds 

informational workshops for both laymen and legal professionals to increase their 

awareness of the legal system. This proposal, at a total cost of less than $150,000, 

was quickly approved for funding under USAID’s Civil Society Conflict Mitigation 

program.107 The end result was a project that met the needs of the Iraqi public and 

was consistent with the goals of both the Government of Iraq and Coalition Forces. 

Delivering justice services. In many countries, CSOs deliver essential justice services that the state 

fails to provide and have a significant impact in advancing justice by addressing grassroots needs. 

Common examples are those of lawyers, paralegals, legal aid centers, victims’ support groups and 

refuges from domestic violence, which deliver services on a pro-bono basis or for a relatively small 

fee. 

Public education programs. In many countries, ongoing public education programs focusing on the 

ROL (from human rights to the proliferation of small arms) are run by CSOs. 

Oversight of the security system. CSOs can help inform, influence and assess the performance of 

formal civilian oversight bodies and security system institutions. 

C. Conducting a Baseline Assessment in this Sector 

Rule of law programs should include a firm analysis of the context, role and position of CSOs, since 

their capacity, effectiveness and space to engage varies greatly from country to country. Civil society 

assessments must take into account the range of local actors beyond those approved by the state and 

identify those that genuinely focus on improving the human security of the poor, women, and other 

groups often excluded from security debates. The following are example questions for civil society 

107 Civil Society Conflict Mitigation funds are a component of USAID’s Iraq Rapid Assistance Program. These 

funds can be used for activities that build stronger bridges between the government and civil society. USAID’s 

Iraq programs are described at http://www.usaid.gov/iraq/ (last visited July 21, 2011). 

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assessments, potentially useful as a starting place for a set of intelligence requirements to be 

submitted to the G-2 for additional collection and analysis.108 

•	 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? 

•	 Which mechanisms exist to ensure that CSOs are equally accountable to their populations and 

their external partners? 

•	 Capacity 

•	 Which CSOs are the possible agents of change in the security system? What are their key 

sources of influence? Are they effective and efficient? 

•	 Have certain CSOs demonstrated a capacity to engage security-related issues? 

•	 What capacity do CSOs have for research, advocacy, training and policy advice? 

•	 Management 

•	 How strong are the internal managerial systems of relevant CSOs? 

•	 Do they handle budgeting activities competently and transparently? 

•	 Coordination with other parts of the security system 

•	 Which CSOs have connections to security and justice actors? 

•	 What institutional mechanisms exist for CSOs and state security and justice sectors’ 

interaction? 

•	 What state or coalition activities can be used as a vehicle for engaging with civil society? 

•	 Are members of CSOs put at a security risk by interacting with the security sector? 

•	 External Partners Engagement 

•	 What is the relationship between CSOs and international NGOs and external partners? 

•	 Is there primarily a need for programmatic or institutional support to CSOs, or both? 

•	 How can sustainability be built among targeted CSOs? 

•	 Are there any potential risks involved in interacting with specific CSO groups? 

•	 What is the likely impact of external partners’ involvement or assistance on the local conflict 

dynamics? How can negative impacts be avoided or, at least, minimized? 

•	 Is there a risk that external support may endanger members of CSOs and how can they be 

protected from human rights abuses? 

108 Ch. 5 provides detailed guidance on how to conduct the assessment and how to use these questions as 

measures of effectiveness to monitor progress. 

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D. Common Challenges and Lessons Learned to Guide Implementation 

Support capacity development. Building the capacity of CSOs requires a long-term perspective in 

program planning, particularly when civil society is weak or under-developed. 

Consider the role of International CSOs in capacity-building. International CSOs can help strengthen 

their equivalents in the partner countries by assisting in creating political space for engagement with 

their governments on security and justice issues, as well as providing moral support, protection, and 

security. International NGOs can also provide important technical and capacity-building support 

through, for example, skills development and training programs. 

Ensure transparency of engagement with CSOs. It is important that governments and international 

actors are transparent in their dealings with CSOs to avoid misperceptions. Opaque engagement risks 

the population or other CSOs growing suspicious of the relationship between governments and CSOs 

and national governments becoming distrustful of the relationship between external actors and local 

CSOs. 

Coordinate assistance. Coordination with other local and international actors is essential to avoid 

duplication, to pool resources, and to concentrate efforts in supporting CSOs, while fostering their 

independence and sustainability. 

Institutional funding and sustainability. In countries with emerging CSOs acting in the security and 

justice arena, it is important to ensure provision for core institutional funding. Although practice 

demonstrates that external partners are more disposed to support project-based activities, this limits 

CSOs’ ability to engage in the longer-term and to develop or seize emerging opportunities in 

domestically driven security reforms. On the other hand, openness towards longer-term funding must 

be balanced with concerns of sustainability. There is a requirement for CSOs to develop balanced 

sources of funding in order to sustain their independence and avoid both donor fatigue and the 

appearance of dependence on a particular interest group (including foreign nations and the national 

government when it is a source of CSO funding). This can be done, for example, through harnessing 

the support of the private business sector and charity campaigns. 

Support regional and international networks and partners as a bridge to the national level. In many 

countries it may be difficult for CSOs to engage directly in security and justice issues at the national 

level. Participation in security-related discussions and mechanisms at the regional level tends to be a 

good means of exerting indirect pressure on the national level as local CSOs are normally seen to 

have more credibility if they are members of regional or international networks or have international 

partners. 

Build media capacity to report on rule of law and include media strategies into programming. The 

media is one of the main channels to help raise public awareness on issues pertaining to the ROL. In 

many countries, especially post-conflict ones, the media is under-developed 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. 

Train the trainers. Experience shows that this form of cascade training, in which representatives of 

leading CSOs train others, can be very effective. It helps in building local training capacity, ensures 

that contents are relevant and sensitive to local contexts, and maximizes the outreach to community 

level. 

Support research institutions. Developing the capacity of academic and research institutes can help 

generate a better understanding of the context, situation, relevant actors and challenges faced in a 

given country. Law schools, for instance, are a critical element of the civil society infrastructure 

supporting the ROL. 

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Beware of any lack of domestic legitimacy. Supporting CSOs without broad domestic legitimacy may 

jeopardize reforms with the government and alienate wider civil society. Some CSOs are more 

closely connected to national elites and external partners than to local communities. 

The tension between role as watchdog and partner. When CSOs move from playing a watchdog role 

and start to participate in actually helping to implement the ROL, their domestic audience may 

perceive them as no longer being neutral. On the other hand, governments may not trust them as 

partners if they are being publicly critical. Some compromises will have to be made and training in 

how to raise sensitive issues without being overtly confrontational may be essential for CSOs 

performing advocacy roles. For example, both in the Democratic Republic of Congo and Liberia, 

civil society became party to the peace agreement ending the conflict, taking up seats in transitional 

parliament and management of government-owned industries. This had implications for perceptions 

of its neutrality. 

Be aware of potential negative role of some civil society groups. Violent conflict often engulfs, 

politicizes, and splinters civil society. Some organizations, which may be considered to have played 

a negative role in the conflict, could act as a spoiler to peace processes. 

Ensure the security of NGO and CSO partners. In many contexts NGOs are targeted with violence 

by belligerent factions or insurgents, and they are almost invariably ill-prepared to provide their own 

security in a non- or semi-permissive environment. Security failures that affect CSOs can devastate 

reconstruction efforts, including ROL operations. Deployed JAs should be aware of the security risks 

that CSOs face and be prepared to either provide security or, if the situation is untenable, help to 

arrange for their exit from the AO. 

VIII. 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 socalled “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 and legitimate security functions, unlike traditional police, they do not serve the general 

public. In attempting to bring them and their actions within the ROL, the role of private actors in 

providing security services has to be recognized and addressed. Non-state actors provide many 

different types of security services: 

• Military Services • Security Services 

• Military training/consulting • Physical security (static/transport) 

• Military intelligence • Close protection (body guarding) 

• Arms procurement • Rapid response 

• Combat and operation support • Technical security 

• Humanitarian de-mining • Surveillance service 

• Maintenance. • Investigative services. 

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A. 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 exceed public law enforcement agencies in many countries, 

including South Africa, Philippines, Russia, United States, UK, Israel, and Germany. The private 

security sector is rarely addressed in any systematic way in ROL 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 ROL programming, it may come to represent an essentially parallel 

and largely unaccountable sector in competition with state justice and security provision. Without 

effective regulation and oversight, the PSCs are often narrowly accountable to clients and 

shareholders, rather than democratically accountable to public law, and over-reliance on PSCs can 

reinforce exclusion of vulnerable populations and unequal access to security. Unaccountable nonstate 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. 

Security Contractors 

The role of private security contractors (PSCs) in areas of combat operations has 

received significant public attention, due largely in part to a number of high-profile 

incidents in Iraq, including the September 2007 incident in Nisour Square, Baghdad 

involving Blackwater in which 17 Iraqis were killed. Since then, one contractor has 

pled guilty to manslaughter and five others are being tried for the shootings in federal 

court. The incident brought several critical issues to the forefront, including the 

nature of the Iraqi licensing regime; the extent of contractor immunity under Iraqi 

law; the question of US jurisdiction; the appropriate rules for the use of force for 

PSCs in a war zone; etc. The incident led to numerous improvements in the oversight 

and accountability measures implemented by DOS and DOD in Iraq, and the degree 

of USG communication and cooperation with the Iraqi authorities. As part of the 

2008 Security Agreement, the Iraqi government insisted on a provision providing for 

Iraqi jurisdiction over such cases. 

B. Assessing the Role of Non-State Security Providers 

A professional, accountable and well-regulated private security industry can complement, rather than 

undermine, the state’s ability to provide security. A healthy private security sector can allow scarce 

public resources to be usefully redirected for other purposes, including the public provision of 

security to those who cannot afford it by private means. Within this context, the issues that may need 

to be addressed can be summed up as follows: 

•	 Clarifying the roles of the private security sector and its relationship with public security 

agencies, and increasing cooperation 

•	 Clarifying the legal status of PSCs, and how it may change depending on factors such as 

nationality, type of services offered, and clients 

•	 Statutory regulation and government oversight, perhaps through licensing 

•	 Professionalism and voluntary regulation 

•	 Transparency, accountability, and oversight 

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•	 Training for private security staff in human rights and humanitarian law, use of force and 

firearms, first aid, and professional operating standards 

•	 Integration of private security sector reforms into broader Security Sector Reform (SSR) 

programs 

Recognizing that non-state security actors can potentially provide a valuable function, it is important 

to understand the development cycle of the private security industry that can lead to more effective 

control of all non-state security forces. In general, regardless of the context, as host nation 

governance is restored and strengthened, a relatively unregulated and rapid proliferation of non-state 

security providers is often followed by a period of consolidation and professionalization, in which a 

more sophisticated domestic control regime is established and the most questionable operators are 

marginalized. A baseline assessment should include viewing the varying roles of non-state security 

providers as a sector, and analyzing the existing governance or regulatory framework in which they 

exist. At the same time, it is critical not to view the sector as one undifferentiated mass; there might 

be great variety among private security providers. Several factors—including nationality, mission, 

and for whom they are working—can affect the legal status of any particular provider. 

•	 Context 

•	 What are the factors contributing to supply of and demand for private security services and 

other non-state security providers? 

•	 Who are their clients and what security threats are they hired to protect clients from? How 

many works on behalf of host government entities, foreign governments or militaries, 

foreign-funded reconstruction entities, international organizations, purely commercial 

companies, etc.? 

•	 How does the public perceive them? 

•	 Is there demand for reform of the sector from government, civil society, client groups, or 

from legitimate PSCs? 

•	 To what extent are PSC employees affiliated and identified with former armed groups (e.g., 

militias), ex-combatants, and arms trafficking? 

•	 What is the impact of non-state security providers, including the private security sector, on 

public law enforcement services, crime levels, public safety, human rights, and business 

confidence? 

•	 Regulation and Oversight 

•	 What laws and regulations—both domestic and foreign—are in place to govern the private 

security sector and the use of firearms by civilian corporate entities? 

•	 How do those laws and regulations apply differently depending on the nature of a given 

security provider? 

•	 Which government agencies or ministries are involved in the control and regulation of PSCs? 

•	 What procedures and criteria exist for licensing and registering PSCs? What systems and 

standards exist for vetting and licensing private security personnel? 

•	 Have PSCs or other non-state security actors or their personnel been implicated in crime, and 

have incidents led to trials or prosecutions? 

•	 What voluntary codes of conduct, industry bodies and standards exist, if any? Do 

enforcement mechanisms exist? 

•	 Do procurers of private security services have selective procurement criteria or report 

information on the companies or individuals that they employ? 

•	 Where foreign militaries or governments procure private security providers, what oversight 

and accountability measures have they put in place? How do these entities communicate and 

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cooperate with the host government? How effective is the host government’s ability to 

regulate PSCs employed by foreign forces? 

•	 Capacity 

•	 What is the size and profile of the private security industry operating in the country and 

overseas (e.g., size and number of companies, number of personnel, annual turnover)? 

•	 What services can they offer and which do they provide? 

•	 What is the capacity and coverage of private security provision compared with the police and 

public providers? 

•	 Management 

•	 What is the ownership structure of the private security industry (e.g., national, international, 

subsidiaries of international companies)? 

•	 What kind of training is provided to staff? Is there a code of conduct? Is it enforced by the 

companies on their staff? 

•	 What are the human resource and recruitment policies and practices? 

•	 Do they vet recruits for criminal convictions, disorderly conduct or in post-conflict situations, 

for human rights abuses? 

•	 What are the command and control arrangements for staff while on duty? 

•	 How are small arms and ammunition controlled, stored and managed by PSCs? 

•	 Coordination with Other Parts of the Security System 

•	 What affiliations and relationships do companies have with government officials, law 

enforcement agencies, military, intelligence agencies, political parties, criminal groups, and 

militias? 

•	 What is the functional relationship and division of responsibilities between public and private 

security providers? 

•	 How are state security providers involved in training, licensing and support of private 

security providers? 

•	 Donor Engagement 

•	 Do existing SSR programs contain a private security component? 

•	 Have donors undertaken a security or conflict assessment prior to their SSR interventions and 

if so, was the private security sector considered as a factor? 

•	 Do international actors operating in-country, such as humanitarian and donor agencies, 

procure private security services, and what are their procurement criteria? 

C. Ten Lessons Learned 

1.	 Avoid creating a security vacuum 

Non-state security actors may be the only providers of security in areas or sectors where state 

provision of security is weak. To avoid creating a security vacuum, it may be necessary to strengthen 

state security provision and capacity for oversight as a precondition for effectively regulating the 

private security sector. 

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2.	 Control the activities of personnel wherever they are working 

This is essential to ensure that they are accountable for all wrongful acts wherever they are 

committed, particularly when the domestic regulatory environment is weak. Especially in areas of 

active combat, however, it must be recognized that there are substantial challenges to designing and 

enforcing effective and fair accountability measures. For example, security concerns may prevent the 

return of investigators to the scene of a firefight. 

3. Clarify the roles and functions of private security providers and their clients 

Issues include private sector involvement in law enforcement or military operations, procedures for 

reporting to the police, and the role of the police in enforcing private security sector legislation. Also, 

especially where PSCs are working on behalf of a foreign government or military, that entity should 

have adequate oversight and accountability controls to control such PSCs, and to ensure proper 

communication and cooperation with the host government. 

4.	 Establish transparent licensing criteria 

Licensing criteria might include adherence to standards related to vetting and training, equal 

employment practices, recording and reporting operations, oversight and management structures, 

responsibilities to the public, and relations with public service providers. 

5.	 Do not overlook criteria for licensing host nation security providers who operate 

in other countries 

Regulation should include whether the company or its proposed activities are likely to pose a threat to 

law and order, undermine economic development, enhance instability and human suffering, increase 

threat perceptions in neighboring countries, contribute to or provoke internal or external aggression, 

or violate international embargoes or sanctions. 

6.	 Be cautious of immunity agreements that insulate outside PSCs 

International private security providers may acquire immunity agreements from HN governments to 

prevent prosecution under national laws. These agreements are often a condition of undertaking work 

on behalf of governments, particularly in conflict or post-conflict situations. Despite their apparent 

utility, these agreements can weaken the ROL in the host nation, often at a time when establishing 

and enforcing it is essential to the provision of security. If such immunity is granted, it is important 

to ensure effective alternative accountability measures. 

7.	 Prescribe basic PSC training 

Regulatory authorities should establish and oversee training for private security providers that, in 

addition to ensuring proper training on use of force law and policies, give personnel a good grounding 

in human rights and humanitarian law, first aid, and gender issues. 

8.	 Assure accountability extends to owners, not just employees, of PSCs 

In post-conflict, a thorough assessment of the ownership and command and control structure of PSCs 

is essential in order to ensure that they do not operate based on previous or on-going affiliations with 

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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.109 

9. Address the links to DDR 

Disarmament, demobilization and reintegration (DDR) programs may need to specifically include 

private security personnel, who are often recruited locally and may have played an active role in 

conflict. Former combatants may provide a recruitment pool because they frequently possess 

specialized military skills but lack alternative economic opportunities. This can lead to problems if 

former combatants are not adequately vetted and trained. If not carefully monitored, PSCs in a postconflict environment can contribute to insecurity through maintaining command structures and 

legitimizing weapons possession under the guise of legitimate private security provision. 

10. Remember that PSCs are part of the broader civil society 

Where possible, align efforts to deal with the problem of non-state security providers with civil 

society and community safety initiatives. In addition to the involvement of CSOs, community safety 

programs are also useful tools that can help increase the oversight of the private security sector by 

local authorities and community groups. They do so by encouraging dialogue between communities 

and all security providers, and encouraging local cooperative agreements between security providers 

and communities that outline the roles and practices of the different actors in maintaining local 

security, law, and order. At the same time, encourage the host government and civil society to 

educate the public about the role and authorities of PSCs to align expectations and reduce 

miscommunications. 

109 For information on vetting public employees see supra note 23. 

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CHAPTER 5 

PLANNING FOR RULE OF LAW OPERATIONS 

Planning for ROL operations must be thoughtful, systematic and continuous. It must also take 

account of the fact that ROL operations are likely to be but one line of effort (LOE) within the context 

of the overall mission. Because planning is a continuous and iterative process, whether a JA is taking 

over an existing rule of law operation or creating one de novo, he will need to understand how to 

advance that operation through the same planning process as the unit’s other lines of operation, and to 

compete with those operations for scarce resources. As one ROL practitioner in Iraq explained, “The 

military decision making process (MDMP) detailed in FM 5-0 applies as much to a ROL advisor as to 

any staff officer.”1 

This chapter begins with an overview the State Department’s framework for reconstruction and 

stability operations and the implementation of that framework in Army doctrine. This starting point 

enables ROL planners to understand how their efforts must integrate within the wider context of 

COIN and stability operations. Section II provides a summary of the Military Decision Making 

Process (MDMP), which is used in developing a ROL LOE, together with ROL specific 

considerations. Section III considers pre deployment planning considerations for a ROL Team. The 

chapter concludes, in Section IV, with a discussion of baseline assessments and the use of metrics to 

gauge progress in ROL development. 

I. Interagency Reconstruction and Stabilization Planning Framework 

A. Introduction 

In an attempt to synchronize reconstruction efforts involving multiple agencies, National Security 

Presidential Directive 44 (NSPD-44), gave the Secretary of State the responsibility to coordinate and 

lead U.S. government reconstruction and stabilization (R&S) activities.2 The military is not the lead 

agency in formulating reconstruction policy. However, it retains considerable responsibility for 

engaging in R&S activities (particularly in non-permissive or semi-permissive environments).3

 In 

order to enhance stability operations planning, coordination, and implementation efforts, the DOD has 

delineated (in DODI 3000.05) key reconstruction and stabilization (R&S) responsibilities4 and directs 

that “military forces shall be prepared to perform all tasks necessary to establish or maintain order 

when civilians cannot do so.”5

 These framework documents demonstrate the comprehensive nature 

of R&S efforts, as well as help ROL planners identify interagency partners who may possess the 

capabilities to best accomplish specific R&S tasks. This section will describe the State Department’s 

1 See also generally NORMAN M. WADE, THE BATTLE STAFF SMARTBOOK (2d rev. ed. 2005), a practical guide 

for staff planning.

2

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

Reconstruction and Stabilization, Dec. 7, 2005 [hereinafter NSPD-44], available at 

http://www.fas.org/irp/offdocs/nspd/nspd-44.html (last visited 13 June 2011). 3

 U.S. ARMY FM 3-07: STABILITY OPERATIONS (Oct. 6, 2008) [hereinafter FM 3-07] (discussing these five 

Army primary stability tasks). 

4

 U.S. DEP’T OF DEFENSE, INSTR. 3000.05, STABILITY OPERATIONS, 2 (Sep. 16, 2009) [hereinafter DODI 

3000.05].

5 Id, para. 4.3. Note that this may quickly lead to circumstances in which commanders expect tactical-level JAs 

to provide briefings on host nation commercial, banking, or private property ownership laws. Prior to 

deployment, great effort is needed to gather all available translations of local laws and regulations to facilitate 

this analysis as required. 

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approach to R&S, discuss the military’s own set of primary stability tasks (that map the State 

Department’s approach), and offer broad lines of effort for each primary stability task.6 

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

Stabilization 

The Office of the Coordinator for Reconstruction and Stabilization (S/CRS) published the PostConflict Reconstruction Essential Tasks Matrix in order to provide R&S personnel a common 

framework to assess, plan, and synchronize efforts among all participating organizations.7

 The 

S/CRS framework is a comprehensive task list built on five broad “stability sectors”. Each stability 

sector reflects a specific societal function. A country that displays some degree of success in all five 

stability sectors will generally be stable. Conversely, a country that displays some degree of 

instability in one or more of these sectors is apt to suffer some degree (great or small) of instability. 

The S/CRS framework uses a three-phased approach to R&S efforts in each stability sector: 

• Initial response (immediate actions of reconstruction and stabilization personnel) 

• Transformation (short term development) 

• Fostering sustainability (long term development). 

The three-phase approach is not necessarily sequential. Situations may warrant the implementation of 

certain tasks drawn from a later phase. For example, R&S personnel may plan and coordinate 

monetary policy programs in the early stages of the stabilization effort, even before the country enters 

the post-conflict phase. Rule of law planners should always consider the fluidity of the conditions on 

the ground, and plan their tasks to account for it. 

The five stability sectors defined by the S/CRS framework are as follows: 

• Security 

• Justice and Reconciliation 

• Humanitarian Assistance and Social Well-Being 

• Governance and Participation 

• Economic Stabilization and Infrastructure. 

These five sectors are not independent of each other. Rather, they work in concert to promote and 

maintain stability. Planners should ensure, therefore, that R&S plans account for the effect each LOE 

will have on one or more stability sectors. 

Sources of instability can affect more than one stability sector. For example, illicit drug trafficking 

threatens individual and community security, poses significant challenges to the law enforcement 

community, and generates income that not only de-stabilizes the legitimate economy of the country 

but is also used to fund malign actors. Sources of instability will often be found outside the borders 

of the host nation. For example, terrorist networks often recruit, train, seek funding, and plan in 

multiple countries. 

6

 This discussion contains only a brief overview of these frameworks. It is not intended to be a substitute for a 

full reading of all the documents referenced in this section. 

7

 The Post Conflict Reconstruction Essential Tasks Matrix can be found at: 

http://www.state.gov/documents/organization/161791.pdf (last visited 13 June 2011). Though this framework 

is entitled an “Essential Task Matrix,” its title should not be construed to mean that planners must complete 

every task on the matrix in order to achieve stability. Every situation is different, requiring effective mission 

analysis and course of action development. Readers should use the S/CRS Essential Task List as a baseline 

framework. For purposes of this Handbook, the product will be hereinafter referred to as the “S/CRS 

framework.” 

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It is important, therefore, to understand the meaning and application of each stability sector as well as 

the linkages between sectors. Planners must understand the effect of a source of instability on each 

stability sector, as well as on stability in general. Doing so will enable them to better comprehend the 

importance of related tasks, impacts on mission success, and the consequences of failing to complete 

the task. 

1. Security 

Security is the foundation for broader success across the other stability sectors. In less than 

permissive environments, security must be established before other U.S. government partners can 

engage in reconstruction and stabilization efforts. Efforts within the security sector focus on 

establishing a stable security environment and developing legitimate institutions and infrastructure to 

maintain that environment. 

2. Justice and Reconciliation 

This sector centers on justice reform and the ROL, supported by efforts to rebuild the host nation 

courts systems, prosecutorial and public defense arms, police forces, investigative services, and penal 

systems. It also includes helping the host nation select and enforce an appropriate body of laws that 

protects the integrity of host nation governance institutions. 

Initially, reconstruction and stabilization personnel develop mechanisms for addressing past and 

ongoing grievances that give rise to civil unrest. Once a rudimentary system takes hold, personnel 

initiate efforts to build of a more robust legal system and a process for reconciliation. As the legal 

system takes root, reconstruction and stabilization personnel will work to ensure the host nation 

operates the legal system in a manner that the population accepts as legitimate. 

3. Humanitarian Assistance and Social Well-being 

This sector focuses on basic needs such as food distribution, housing refugees and displaced persons, 

and providing sanitation. Such relief contributes to establishing security, and the perception of the 

host nation government’s legitimacy by providing for the welfare of its citizens. Long term social 

well-being development in programs such as education and public health ensure the host nation 

government can develop its citizens’ abilities to provide for their own welfare, which further sustains 

stability and minimizes the potential drivers of conflict. 

Initially, reconstruction and stabilization personnel work to provide emergency humanitarian needs. 

As immediate issues subside, the personnel establish a program to develop the host nation 

government’s capability to meet these needs over the long term with little or no outside assistance. 

Once the host nation demonstrates its ability to provide basic services, reconstruction and 

stabilization personnel institutionalize the long-term development program so it functions with little 

or no outside assistance. 

4. Governance and Participation 

Governance is the state’s ability to serve the citizens, to include the processes by which interests are 

articulated, resources managed, and powers exercised. Participation includes methods that actively 

involve the local populace in forming their government. This, in turn, encourages public debate and 

the exchange of new ideas. Both governance and participation require effective, legitimate political 

and administrative institutions. 

Initially, reconstruction and stabilization personnel assist the host nation in determining the most 

effective governance structure and establishing the foundations for citizen participation. Once the 

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basic structure and foundation find support among the key elements of the host nation government, 

reconstruction and stabilization personnel work to promote legitimate political institutions and 

processes. After the political institutions and processes take root, reconstruction and stabilization 

personnel foster them so they can operate with little or no outside assistance. 

5. Economic Stabilization and Infrastructure 

Economic stabilization and infrastructure involves the state’s programs and facilities (including roads, 

railways, and ports) which generate revenue. Economic growth has often received little attention 

from donors working on post-conflict problems. This is in part due to the tendency to focus first on 

security, humanitarian assistance, and other short-term needs. It is also due to the fact that economic 

growth and stability is complicated, involving the intersection of the public and private sectors over 

an extended period of time. Therefore, planning, coordinating, and implementing economic growth 

programs across the interagency community poses great challenges, requiring both short and long 

term planning, patience, and strong coordination among the interagency partners. 

In this sector, personnel work toward long term development to enable local and provincial 

government to benefit from national-level programs affecting trade, monetary and banking policy, 

and various other economic areas with little or no outside assistance. 

C. Military Primary Stability Tasks8 

Although Civil Affairs (CA) has the lead for ROL in doctrine, SJAs preparing for an upcoming 

deployment should anticipate that commanders and staffs will expect the OSJA (hopefully in 

conjunction with CA and MP representatives) to take on operational responsibilities for ROL 

activities. Understanding where those activities sit within the military’s primary stability tasks is an 

important foundation in building a robust and defensible ROL program. The military’s five primary 

stability tasks closely mirror the S/CRS stability sectors: 

• Establish civil security 

• Establish civil control 

• Restore essential services 

• Support to governance 

• Support to economic infrastructure and development 

As is the case with the S/CRS stability sectors, the stability tasks are intertwined. The combination of 

tasks conducted during a stability operation will depend on the situation. Planners may, however, use 

the primary stability tasks as a basic framework for their lines of effort. Keep in mind that a source of 

instability may impact more than one LOE. 

1. Establish Civil Security 

Civil security is most closely tied to the S/CRS “security” sector. Civil security involves protecting 

the populace from external and internal threats. Ideally, Army forces defeat external threats posed by 

enemy forces that can attack population centers. Simultaneously, they assist host nation police and 

security elements as the host nation maintains internal security against terrorists, criminals, and small, 

hostile groups. In some situations, no adequate host nation capability for civil security exists. Then, 

Army forces provide most civil security while developing host nation capabilities. For the other 

stability tasks to be effective, civil security is required. As soon the host nation security forces can 

safely perform this task, Army forces transition civil security responsibilities to them. 

8 See U.S. ARMY FM 3-0: OPERATIONS [WITH CHANGE 1] (Feb. 22, 2011), para. 3-65 [hereinafter FM 3-0]. 

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Civil security lines of effort include, among other things: 

•	 Establishing public order and safety 

•	 Protecting indigenous individuals, institutions, and infrastructure 

•	 Protecting reconstruction and stabilization personnel. 

2.	 Establish Civil Control 

Effective civil control reduces risk to the public and corruption by the host nation officials responsible 

for providing civil security and civil control. Military forces, in close coordination with State and 

Justice Departments personnel, plan and implement programs that build the capabilities of host nation 

executive, legislative, judicial, law enforcement, and penal systems. 

Civil control lines of effort include, where appropriate: 

•	 Constituting an interim criminal justice system 

•	 Building or sustaining an effective police force 

•	 Training or sustaining judicial personnel and infrastructure 

•	 Preventing property conflicts 

•	 Reforming the legal system 

•	 Preventing human rights abuses 

•	 Building or sustaining adequate corrections systems 

•	 Establishing legitimate war crimes tribunals 

•	 Establishing community rebuilding programs. 

3.	 Restore Essential Services 

Restoring essential services involves establishing basic services until a civil authority or the host 

nation can provide them. Normally, military forces support USG and host nation agencies. Essential 

services include, where appropriate: 

•	 Assistance to refugees 

•	 Food security; shelter and non-food relief 

•	 Humanitarian demining 

•	 Public health, including potable water, medical care, and sanitation 

•	 Education 

•	 Social protection. 

4.	 Support to Governance 

Military support to governance includes: 

•	 Developing host-nation control of public activities, the rule of law, and civil administration 

•	 Maintaining security and essential services through host-nation agencies (including training and 

equipping host-nation security forces and police) 

•	 Supporting host-nation efforts to normalize the succession of power (elections and appointment 

of officials). In addition to working with the host government, military personnel liaise with local 

leaders and business owners, encourage peaceful resolution of disputes among rival factions, and 

build or restore critical infrastructure. 

Governance lines of effort include, where appropriate: 

•	 National constituting processes 

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• Transitional governance 

• Executive authority 

• Legislative strengthening 

• Local governance 

• Transparency and anti-corruption 

• Elections 

• Political parties 

• Civil society and media 

• Public information and communications. 

5. Support to Economic and Infrastructure Development 

Economic and infrastructure development involves both the ability of the host nation to sustain its 

economic viability and the individual citizen’s ability to obtain basic needs. Military forces can 

significantly improve the economic viability of a local population, either by injecting money directly 

into the economy through construction and service contracts, or by improving the infrastructure that 

supports the economic base. This development can be done in conjunction with obtaining local 

business support for other civil society focused ROL initiatives. 

Given the complex nature of the economic stabilization and infrastructure sector, military forces 

should ensure their stability task plans are properly synchronized into overarching economic and 

infrastructure development plans at the strategic and operational levels. 

Economic and infrastructure development lines of effort include, where appropriate: 

• Transportation infrastructure (such as roads, railways, airports, ports, and waterways) 

• Telecommunications 

• Energy development, mines, energy production and distribution infrastructure 

• Public services. 

D. The Interagency Planning Framework: Concluding Thoughts 

Reconstruction and stabilization efforts involve complex problems and even more complex solutions. 

No two situations will look the same, even within the same country or region. The framework offered 

by FM 3-0 (which nests within the S/CRS framework) presents a conceptual approach that serves as a 

starting point for planning, coordination, and implementation. Situations on the ground can and will 

require ROL planners to produce a plan that best suits those conditions by using one of the military 

planning methods. 

II. Military Planning 

A. Why Planning is Critical 

Due to the complex and uncertain nature of COIN and stability operations, planners often encounter 

disagreement on what objectives should be pursued, their priority, and perhaps even on what the end 

state should look like. Without a plan, the chances of producing effects that endure beyond a unit’s 

redeployment are extraordinarily low. 

In any mission, there will be numerous lines of effort (LOEs), in addition to ROL, that compete for 

military support and resources. Utilizing a military planning process allows the JA to prioritize and to 

integrate ROL LOEs into the commander’s overarching set of concerns. It will also prevent ROL 

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operations from becoming “something the JAGs do.” The effective JA will inform this process with a 

thorough knowledge of the ROL’s impact on COIN and stability operations. This will ensure, in turn, 

that the commander’s ROL vision is properly informed; that effort and resources are devoted to 

programs necessary to stability and COIN success; and that efforts are coordinated with coalition 

forces and host nation and interagency partners. 

Coordination in OIF-1 

During OIF-1, the legal reconstruction effort in southern Iraq was disjointed, as the 

JAs operating in each province did not have the communications capabilities to 

coordinate with each other and there was confusion within the chain of command 

structure. Further, some JAs had unclassified email access, some had only classified 

email access, and others had none at all. Initial planning deficiencies that failed to 

consider the chain of command, reporting, and communications issues led to two 

months of duplicated effort and lack of regional coordination that unnecessarily 

delayed restoring courthouse operations across the southern region.9 

B. What is Planning? 

Planning translates the commander’s vision into a specific course of action that will create a desired 

end state.10 The outcome is a plan or an order that provides all the information subordinates need for 

execution. 

Army planning doctrine (found in FM 5-0 The Operations Process and outlined in figure 6-1, below) 

may leave the JA with the impression that planning is always conducted during set times around a 

conference table with other members of the staff fully engaged. This ideal is seldom achieved. The 

sub-optimal reality is that in many cases the JA tasked with ROL planning drafts the plan with only 

ad hoc interactions with other members of the staff, with updates to the commander (and guidance 

from him or her) coming during staff meetings. It must also be remembered that planning does not 

end when the plan is produced. Planning (in the form of adaptations to the plan) will continue for the 

duration of the deployment as the JA observes the effects of his or her actions, and of other 

developments in the ROL environment. 

When planning ROL LOEs, the planner should attempt to plan in conjunction with (if not in the 

company of) the ROL counterparts in their superior and subordinate units. For example, division 

level ROL planners should invite the BCT JAs to join them during pre-deployment planning.11 At 

every level, JAs should be prepared for a consuming planning effort. Understanding planning 

procedures will not only allow the JA’s efforts to integrate with those of the staff, but more 

importantly, it will help to ensure the JA’s plan is feasible, properly resourced, acceptable to the 

command, and be capable of producing results. Notwithstanding its formulaic process, planning is an 

art. That art cannot be learned from FM 3-0 and FM 5-0 alone. As such, JAs should be ready to turn 

to the Operations section or (if the unit has one) the Planning section for assistance if it is needed. 

9

 CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ:
 

VOL. II, FULL SPECTRUM OPERATIONS 254 (2006) [hereinafter OEF/OIF LL, Vol II].
 10 FM 3-0, supra note 8, para. 5-30 

11 25th Infantry Div., Staff Judge Advocate Iraq After Action Report, Multi-National Division – North,
 

Contingency Operating Base Speicher, Iraq, November 2008 – November 2009, (11 March 2010) [hereinafter
 

25ID IZ AAR, NOV 08 – NOV 09; on file with CLAMO]. 

129 Chapter 5 

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Division Level Staff Interaction 

While staff interaction is critical to success, it can also become extremely timeconsuming. During the course of one deployment, ROL attorneys participated in at 

least eight weekly staff meetings, including the Joint Assessments Working Group, 

the Future Plans Joint Planning Group, the Joint Effects Working Group, the Joint 

Effects Synchronization Meeting, the R&D [reconstruction and development] 

Coordination Meeting, and the Joint Effects Coordination Board. Many of the 

meetings overlapped in substance. Most often, ROL was a small, or nonexistent item 

on the agenda. Nevertheless, it was important to attend these meetings to ensure that 

ROL issues were being properly defined and discussed. For example, on a few 

occasions, other staff members had placed ROL bullets into briefing slides that had 

not been seen or discussed. On other occasions, staff members expressed confusion 

as to what ROL is or does. Many staff members incorrectly defined ROL as anything 

involving a lawyer. Find a balance where you attend some internal staff meetings, 

inter-agency ROL meetings, and coordinating with the subordinate task forces on 

ROL initiatives. Do not allow internal staff planning to take up all your time or it 

will.12 

C. The Military Decision Making Process 

The military decision making process is an iterative planning methodology that integrates the 

activities of the commander, staff, subordinate headquarters, and other partners to: 

• Understand the situation and mission 

• Develop and compare courses of action; 

• Decide on a course of action that best accomplishes the mission 

• produce an operation plan or order for execution. 

The Marine Corps Planning Process (MCPP), described in MCWP 5-1, Marine Corps Planning 

Process and the Joint Operation Planning Process (JOPPS), described in JP 5-0, Joint Operation 

Planning, are analogous to the Army’s Military Decision Making Process (MDMP) which is 

described in FM 5-0, The Operations Process.

13 Because these processes are functionally identical, 

the below discussion will serve JAs planning under any of these systems. 

It is important to note that the MDMP assumes full staff involvement. It will be impossible for the JA 

to carry out the MDMP in isolation. Thus, it is critical that the JA planning ROL operations form 

good working relationships with the other cells in the commander’s staff. 

An overview of the 7 step MDMP is set out in Figure 6.1. 

12 82d Airborne Div., Office of the Staff Judge Advocate Afghanistan After Action Report, Regional Command 

– East, Bagram Airfield, Afghanistan, February 2007 – April 2008 [hereinafter 82d ABN AF AAR, FEB 07- 

APR 08].

13 A training program in the Military Decision Making Process is available to Army Judge Advocates online 

through JAG University. Go to https://jag.ellc.learn.army.mil/ (last visited 1 August 2011) and enroll in the 

“JATSOC Elective.” MDMP is the sixth module in the course. 

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Key Inputs Step Key Outputs 

• Higher headquarters’ plan or order or a Step 1: •	 Commander’s initial guidance new mission anticipated by the Receipt of •	 Initial allocation of time commander Mission 

• Higher headquarters’ plan or order 

•	 Higher headquarters’ knowledge and 

intelligence products 

•	 Knowledge products from other 

organizations 

• Design concept (if developed) 

• Mission statement 

•	 Initial commander’s intent, planning 

guidance, CCIRs, and EEFIs 

• Updated IPB and running estimates 

• Updated assumptions 

• Mission statement 

•	 Initial commander’s intent 

Step 2: •	 Initial planning guidance 

Mission •	 Initial CCIRs and EEFIs 

Analysis •	 Updated IPB and ruining estimates 

•	 Assumptions 

•	 COA statements and sketches 

Step 3: •	 Tentative task organization 

Course of •	 Broad concept of operations Action (COA) •	 Revised planning guidance Development •	 Updated assumptions 

•	 Refined COAs •	 Updated running estimates 

Step 4: •	 Potential decision points •	 Revised planning guidance 

COA Analysis •	 War-game results •	 COA statements and sketches 

(War Game) •	 Initial assessment measures •	 Updated assumptions •	 Updated assumptions 

•	 Updated running estimates •	 Evaluated COAs •	 Refined COA Step 5: •	 Recommended COAs •	 Evaluation criteria COA •	 Updated running estimates •	 War-game results Comparison •	 Updated assumptions •	 Updated assumptions 

•	 Updated running estimates 

•	 Evaluated COAs 

•	 Recommended COA 

•	 Updated assumptions 

•	 Commander-selected COA and any 

modifications 

•	 Refined commander’s intent, CCIRs, and 

EEFIs 

•	 Updated assumptions 

•	 Commander-selected COA and any 

Step 6: modifications 

•	 Refined commander’s intent, CCIRs, and 

EEFIs 

COA 

Approval 

• Updated assumptions 

Warning Order 

Step 7: 

Orders •	 Approved operation plan or order 

Production 

CCIR commander’s critical information requirement EEFI essential element of friendly information 

COA course of action IPB intelligence preparation of the battlefield 

Fig 6-1. The 7 step military decisison making process 

131 Chapter 5 

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• Step 1: Receipt of Mission 

The popular maxim “begin with the end in mind” should guide all ROL planning. The 

“end”, in this context, is the commander’s objective (discussed later). The “end state” is a 

set of required conditions that defines the achievement of the commander’s objective. All 

actions taken under the plan must be focused on the end state. 

In accordance with FM 3-07, the ultimate ROL end state, writ large, is a situation where: 

all persons, institutions and entities, public and private, including the state itself, are 

accountable to laws that are publically promulgated, equally enforced, and 

independently adjudicated, and that are consistent with international human rights 

principles.14 

However, this utopian end state will, most likely, need to be adapted for any given mission to meet 

the situation specific requirements that will meet the commander’s objective. For example, in a 

COIN environment, host-nation forces and their partners operate to defeat armed resistance, and 

establish or reestablish the host-nation government’s legitimacy.15 The perceived legitimacy of the 

host-nation government is pivotal to success in COIN. In stability operations the goal is a civil order 

sustainable by host nation assets without support from foreign military forces.16 In each 

circumstance, the desired ROL end state will need to be finessed to accurately reflect the specific 

objective. 

Under ideal circumstances, any given ROL Line of Operation (LOO) will be accompanied by a vision 

of the requisite end state,17 any specific objectives, and how those objectives nest with higher 

headquarters objectives. In many situations (as happened in Iraq and Afghanistan) the complexity of 

the issue will prevent this. Individuals as low as battalion level may be left to define the criteria of 

their local ROL end state. The ROL planner must be proactive about proceeding with his or her 

planning effort despite the absence of clear direction. Planning is continuous, so if the requested 

information or guidance does arrive later, the JA can adapt the plan to integrate the new guidance at 

that time. 

Rule of Law planners at higher echelons are responsible for ensuring lower echelons are provided 

clear ROL objectives. In formulating these objectives, the ROL planner may feel pressured by the 

military commander’s desire for immediate and tangible success. In ROL programs, however, 

“success” may require generational change and, given the long-term, inherently developmental, 

nature of ROL objectives, the ROL JA will often need to articulate the ineffectiveness of short-term 

objectives. A collateral consideration is that for ROL operations to have a lasting effect, they must be 

designed to survive the end-of-deployment relief in place (RIP).18 Long term objectives generally 

focus on creating or enhancing governance capability rather than, for instance, providing items like 

computers and furniture.19 

14 FM 3-07, supra note 3, para. 1-40.
 15 Id. at para 2-55. See also U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY (Dec. 15, 2006)
 

[hereinafter FM 3-24]. 

16 FM 3-0, supra note 8, para 3-73. 17 JOINT CHIEFS OF STAFF, JOINT PUB. 5-0, JOINT OPERATIONS PLANNING III-27 (26 Dec. 2006) [hereinafter JP 

5-0].

18 82d Airborne Div., Staff Judge Advocate Afghanistan After Action Report, Regional Command – East,
 

Bagram Airfield, Afghanistan, June 2009 – June 2010, (23 Jun 2010) [hereinafter 82d ABN AF AAR, JUN 09 ­

JUN 10; on file with CLAMO]. 

19 1st Armored Div., Office of the Staff Judge Advocate Iraq After Action Report, Multi-National Division – 

North, Contingency Operating Base Speicher, Iraq, September 2007 – December 2008, (19 February 2009)
 

[hereinafter 1AD IZ AAR, SEP 07 – DEC 08; on file with CLAMO]. 

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A concise tool that may be of help in developing specific ROL objectives is to select mission specific 

criteria from the World Justice Project’s Rule of Law Index. 

The World Justice Project Rule of Law Index20 

Limited Government 

Powers 

Absence of Corruption Order and Security Fundamental Rights 

Guaranteed 

Open Government 

• Government powers 

are defined in the 

fundamental law 

• Government powers 

are effectively 

limited by the 

legislature 

• Government powers 

are effectively 

limited by the 

judiciary 

• Government powers 

are effectively 

limited by 

independent 

auditing and review 

• Government 

officials are 

sanctioned for 

misconduct 

• Government powers 

are effectively 

limited by nongovernmental 

checks 

• Transfers of power 

occur in accordance 

with the law 

• Government 

officials in the 

executive branch do 

not use public office 

for private gain 

• Government 

officials in the 

judicial branch do 

not use public office 

for private gain 

• Government 

officials in the 

police and military 

do not use public 

office for private 

gain 

• Government 

officials in the 

legislature do not 

use public office for 

private gain 

• Crime is 

effectively 

controlled 

• Civil conflict is 

effectively 

limited 

• People do not 

resort to violence 

to redress 

personal 

grievances 

• Equal treatment and 

absence of 

discrimination 

• The right to life and 

security of the 

person 

• Due process of law 

and rights of the 

accused 

• Freedom of opinion 

and expression 

• Freedom of belief 

and religion 

• The right to 

privacy 

• Freedom of 

assembly and 

association 

• Fundamental labor 

rights 

• The laws are 

comprehensible to 

the public 

• The laws are 

publicized and 

widely accessible 

• The laws are 

stable 

• The right of 

petition and 

public 

participation is 

effectively 

guaranteed 

• Official drafts of 

laws are available 

to the public 

• Official 

information is 

available to the 

public 

Effective Regulatory 

Enforcement 

Access to Civil Justice Effective Criminal Justice Informal Justice 

• Government 

regulations are 

effectively enforced 

• Government 

regulations are applied 

and enforced without 

improper influence 

• Due process is 

respected in 

administrative 

proceedings 

• The Government does 

not expropriate 

without adequate 

compensation 

•

•

•

•

•

•

•

•

•

People are aware of available 

remedies 

People can access and afford 

legal advice and 

representation 

People can access and afford 

civil courts 

Civil justice is free of 

discrimination 

Civil justice is free of 

corruption 

Civil justice is free of 

improper government 

influence 

Civil justice is not subject to 

unreasonable delays 

Civil justice is effectively 

enforced 

ADR systems are accessible, 

impartial, and effective 

• Crimes are effectively 

investigated 

• Crimes are effectively 

and timely adjudicated 

• The correctional system 

is effective in reducing 

criminal behavior 

• The criminal justice 

system is impartial 

• The criminal justice 

system is free of 

corruption 

• The criminal justice 

system is free of 

improper government 

influence 

• The criminal justice 

system accords the 

accused due process of 

law 

• Informal justice is 

timely and effective 

• Informal justice is 

impartial and free of 

improper influence 

• Informal justice respects 

and protects 

fundamental rights 

20 The World Justice Project Rule of Law Index 2011, (The World Justice Project, Washington, D.C.), 2011, at 

11. 

133 Chapter 5 

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Notwithstanding that ROL problems invariably require long term solutions, time is rarely a luxury 

that MDMP planners have an abundance of. The more that ROL planning is delayed, the longer it 

will take for improvements to commence, and the more costly, in terms of dollars, resources and 

lives, will be the bill. Therefore, when developing ROL objectives, and the requisite information is 

not immediately available, the JA’s default response must be to press on while remaining prepared to 

adapt and integrate new information as it becomes available. 

The mission is unlikely to have ROL as its sole focus. Instead, ROL is likely to be one of a number 

of lines of operation (LOOs). Within the ROL LOO, certain essential ROL elements will emerge 

that, in combination, deliver the ROL end state. They may include: providing security in ways that 

reinforce legitimacy, protect human rights and afford due process, thereby building the government’s 

moral authority; addressing perceived bias (for example between different ethnicities and tribes) 

strengthens legitimacy and (when it is not just perception but actuality) serves to guarantee rights; or 

improving the efficiency of, and access to, the justice sector has a direct and positive impact on 

citizens’ lives. These elements are rarely sequential in nature. Breaking the ROL LOO down into 

separate lines of effort (LOEs) will assist in synchronizing priorities and ensuring that all actions are 

oriented on the end state. 

A ROL LOO might be broken down into, for example, five LOEs: 

•	 Resources & References 

•	 Human Capacity & Training 

•	 Proper Development and Use of the Law (to ensure that after officials are trained for their job, 

they are actually performing it) 

•	 Infrastructure (note the need to ensure any projected buildings are desired and needed, and will be 

maintained) 

•	 Connecting Government to the People (which should NOT commence until the government is 

relatively competent and—more importantly—unlikely to victimize the population through 

corruption).21 

Step 1 will also, typically, encompass conducting a baseline assessment of the current situation. That, 

particularly involved, process is discussed in Section IV of this chapter. 

•	 Step 2: Mission Analysis 

Mission analysis contrasts the understanding of the situation gained following mission receipt with 

the desired end state or objectives. Of course, if no end state was received, the JA will have 

formulated his own (perhaps using the above index). While resisting pressure to focus on short-term, 

temporary gains, he will then need to gain buy-in from other staff sections, and approval from the 

commander, for the end state he has produced. 

In this stage, objectives will be defined, with more refinement to come in the future as events unfold. 

The goal is to understand the problem in the context of the situation, and identify what tasks the 

command must undertake to achieve the end state, and when and where it must be done. Results must 

be self-sustaining so that the situation does not deteriorate upon the withdrawal of coalition forces. 

The focus must be on root cause impediments to the desired end state or the achievement will not 

have any lasting value. Absent a careful analysis of root causes, commanders and staff are likely to 

default to strictly institutional projects such as building courthouses or training judges, which may not 

have any impact on enhancing the ROL. Because building ROL depends on understanding the root 

21 1st Combat Support Brigade (Maneuver Enhancement), Task Force Warrior, Brigade Judge Advocate 

Afghanistan After Action Report, Bagram Airfield, Afghanistan, June 2008 – September 2009 After Action 

Report, (20 October 2009).) [hereinafter 1st CSB (ME) AF AAR, JUN 08 – SEP 09; on file with CLAMO]. 

Chapter 5 134 

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causes of its absence, the success of mission analysis is dependent in large part on the quality of the 

initial assessment (see Section IV of this chapter, below). 

The security environment may limit the ability of civilian agencies to operate. Thus, while others 

may have the lead, military forces must be prepared to carry out all aspects of stability operations.22 

Military planners should also understand the institutional perspectives of our interagency and 

international partners. Sometimes agencies are limited in authority, or by fiscal constraints, and so 

adopt a correspondingly limited outlook on what the host nation’s ROL system includes. 

Understanding whether the military will be supporting or leading the ROL line of operation guides 

development of LOEs. 

Lines of effort lay out visually how individual actions relate to each other to achieve the end state. 

Because all action must be oriented on the end state, and any action that does not directly or indirectly 

further the end state is waste, the LOE should focus on a clearly defined end state. As mentioned 

above, the end state can be understood as the minimum set of criteria that, if accomplished, would 

complete the ROL mission, or shift it from ‘build’ to ‘sustain’ while the other COIN lines of effort are 

achieved. The criteria may contain both quantitative as well as qualitative elements (see “metrics” 

below for descriptions of qualitative and quantitative criteria). Quantitative metrics (e.g. failed 

prosecutions) are the easiest to work with, but without a qualitative component, the numbers may lack 

context (failure due to corruption or failure due to lack of admissible evidence).23 

All of the criteria should build toward the objectives of higher headquarters—up to two echelons 

above the planner, by doctrine—if those higher headquarters have provided objectives. The ideal24 is 

unified action, which is the integration of the activities of governmental and nongovernmental 

entities. In this regard, when the battle space is shared with multinational forces and civilian 

organizations, LOEs are additionally valuable in clarifying intent to build unity of effort.25 

A critical component of the mission analysis is understanding the purpose of the mission. The JA, in 

particular, must understand and articulate to the staff and commander the purpose of the ROL LOO 

within the context of the overall mission. In COIN, host-nation forces and their partners operate to 

defeat armed resistance, reduce passive opposition, and establish or reestablish the host-nation 

government’s legitimacy.26 Legitimacy of the host-nation government and its legal system is pivotal 

to overall success. Similarly, in stability operations the goal is a stable civil situation sustainable by 

host nation assets without foreign military forces.27 The objectives of the Justice and Reconciliation 

Sector of Stability Operations are to establish public order and safety and provide for social 

reconciliation. The host nation aims to establish self-sustaining public law and order that operates 

according to internationally recognized standards and respects human rights and freedoms.28 

22 See ch. 2 of this Handbook. 23 2d Brigade Combat Team, 1st Cavalry Division, Brigade Judge Advocate Iraq After Action Report, Forward 

Operating Base Warrior, Kirkuk, Iraq, January 2009 – December 2009, (4 & 9 February 2010) [hereinafter 2-1
 

CAV IZ AAR, JAN 09 – DEC 09; on file with CLAMO]. 

24 FM 3-0, supra note 8, para 1-45. 25 Id. at para. 6-66.
 26 Id. at para 2-55; See also FM 3-24, supra note 15. 27 FM 3-0, supra note 8, para. 3-73. 28 FM 3-0, supra note 8, para. 3-91. 

135 Chapter 5 

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The Role of ROL in COIN 

Judge Advocates involved in ROL initiatives must understand ROL’s importance in 

the larger strategic context in order to function effectively as part of the staff. If the 

government is not able to develop a legitimate and effective justice system, the 

insurgents may seek, for example, to develop a de facto system of justice. Once this 

is in place, it will be used to usurp governmental authority and intimidate or to 

execute locals who support the government. Although many successful or enduring 

insurgencies from Algeria to Nepal have utilized these tactics to varying degrees, 

many planners do not immediately recognize the connection of ROL programs to the 

ultimate objective of defeating an insurgency. Establishing an effective justice 

system provides a forum for the legitimate processing of captured insurgents, while 

also denying “key terrain” to the insurgents.29 

A successful COIN strategy may include the following ROL attributes: 

• Insurgents punished in host nation courts30 

• Public perceives insurgents as criminals31 

• Public not motivated by revenge and resentment32 

• Former insurgents rehabilitated and not part of the fight33 

• Host nation government seen as legitimate34 

As the foregoing list suggests, military ROL practitioners are likely to be concerned primarily with 

the criminal justice component of the ROL environment. However, as the five LOEs set out above 

indicate, there is much more to the ROL environment than police, courts, and prisons. Because a goal 

of stability operations is to establish self-sustaining public law and order, the ROL practitioner should 

not overlook programs that will develop the ROL culture and support an indigenous, self-sustaining 

demand for the ROL. Such programs may include support to civil society groups (that inform the 

public about legal rights), to bar associations, to groups that monitor the court system for 

accountability, and to groups that represent those who are poorly served by the extant legal system. 

The JA should advocate for such programs as part of the mission analysis. The tendency of the 

commander and staff may be to put such programs off until later phases of the operation. However, 

when the goal is self-sustaining public law and order, long term success may well be found in 

supporting efforts that create an indigenous demand for, and popular investment in, the ROL rather 

than merely developing the institutions and capacity to supply the ROL. 

29 See David Galula, COUNTERINSURGENCY WARFARE: THEORY & PRACTICE (Preager 1964), at 78-79 (noting
 

that popular support is conditional and that this support can only be obtained after effective “military and police 

operations against the guerrilla units” has been achieved). See also John A. Nagl, LEARNING TO EAT SOUP WITH 

A KNIFE xiv-xvi (Chicago ed. 2005).
 30 FM 3-24, supra note 15, para. D-15.
 31 FM 3-24, supra note 15, para. 1-13, D-15.
 32 FM 3-24, supra note 15, para. 1-128.
 33 FM 3-24, supra note 15, Table 1-1.
 34 FM 3-24, supra note 15, para. 1-123.
 

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Example: Rule of Law Mission Analysis 

Your division commander has received the mission to improve the ROL in his AO. 

Intelligence resources and your communication with the host nation and interagency 

ROL partners in the region all indicate that the popular perception is that the police 

and courts are sectarian in their administration of justice. This popular perception is 

fueled by insurgent leaders and insurgent propaganda. Currently, most of the 

population does not trust the criminal justice system, views judges and police as 

controlled by sectarian influences, and seeks protection and justice through militias 

of their own sect. 

The center of gravity that must be defeated is the popular perception that the judges 

and police are corrupt because they are motivated by sectarian influences instead of 

following the law. A Commander’s Critical Information Requirement (CCIR) will 

be developed to determine whether there is a factual basis for the popular perception. 

If there is no factual basis, then the commander and ROL team are faced with a 

public information challenge. If there is a factual basis for the popular perception, 

then the problem is more challenging. 

The staff and commander decide to assess their progress with measures of 

effectiveness that will include the number of crimes reported to the police by the 

minority sect, and measures of effectiveness including periodic interviews with 

community and tribal leaders concerning the legitimacy of the police and courts, and 

periodic informal surveys of opinion leaders in the community. 

This example shows how the commander and staff sought to understand the 

underlying problems concerning the ROL operational environment, identified a 

center of gravity, identified critical information needed for further decision making, 

and developed some measures that relate to their progress in achieving the desired 

ROL end state. 

• Step 3: Course of Action Development 

As the result of the first two steps, the commander and staff will understand the desired end 

state in the context of the ROL situation, as informed by the baseline assessment. Using the 

commander’s guidance to develop various methods to move from the current situation to the 

desired end state is known as course of action (COA) development. 

In developing courses of action (COAs), staff members will normally determine the doctrinal 

requirements for each type of operation being considered, including doctrinal tasks for subordinate 

units.35 The ROL practitioner will be invaluable in this process as, unlike for kinetic operations, there 

is no well established doctrine that informs the conduct of ROL operations. The ROL practitioner 

must be both well-read in stability operations doctrine, COIN doctrine, and past ROL programs and 

must be creative in devising new programs to accomplish the desired effects in the operational 

environment. 

Creative or innovative thinking leads to new insights, novel approaches, fresh perspectives, and 

whole new ways of understanding and conceiving things.36 Creative thinking is not a mysterious gift, 

35 U.S. DEP’T OF ARMY, FIELD MANUAL 5-0, THE OPERATIONS PROCESS (Mar. 18, 2010) [hereinafter FM 5-0], 

para. B-84.

36 Id. at paras. 1-29 and 1-30.
 

137 Chapter 5 

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nor does it have to be outlandish. The need for innovation and creative thinking is particularly 

relevant in the ROL arena as it is one in which the commander and staff may have limited training or 

experience. Armed with the comprehensive situational understanding and sound grasp of the desired 

end state derived from the mission analysis, the innovative ROL practitioner can help the staff in 

developing alternative ways to accomplish the desired effects. Collaboration with host nation 

resources and interagency partners is essential in brainstorming possible courses of action. 

A good COA positions the force for follow-on action and provides flexibility to meet unforeseen 

events. The staff should remain unbiased and open-minded in evaluating proposed COAs. Other 

staff members must be engaged with to identify COAs that are not feasible due to factors in their 

functional areas. They can then decide if a COA can be modified to accomplish the objecitve or 

should be eliminated from consideration.37 All COAs must meet the following screening criteria: 

•	 Feasible. The unit must be able to accomplish the mission within the available time, space, and 

resources. 

•	 Acceptable. The advantage gained by executing the COA must justify the cost in resources, 

especially casualties. This assessment is largely subjective. 

•	 Suitable. A COA must accomplish the mission and comply with the commander’s planning 

guidance. The COA cannot lose sight of the desired end state. For instance, if that is a legal 

system that is perceived by the population to be legitimate, it will be important not to overlook 

public education and information operations components of any course of action. 

•	 Distinguishable. Each COA must differ significantly from the others. This criterion is also 

largely subjective. 

•	 Complete. A COA must show how: 

•	 The decisive operation accomplishes the mission. 

•	 Shaping operations create and preserve conditions for success of the decisive operation. 

•	 Sustaining operations enable shaping and decisive operations.38 

Avoid suggesting a COA simply because it is the accepted way of doing things. Seek novel 

approaches and avoid preconceived opinions, but do not gratuitously re-invent the wheel. Proceed 

with a rational basis and sufficient knowledge. 

Step 3 of the MDMP will also require consideration of “metrics” (measures with which the command 

and staff can assess the progress towards the desired end state). These are all too often developed as 

an afterthought in the planning and conduct of ROL operations, and indeed in planning more 

generally. However they are essential in determining whether actions are having a positive, negative 

or even nugatory (indicating perhaps that scarce military resources are, in effect, being wasted) effect 

on the ROL. Although metrics should be developed in conjunction with COAs, given their 

complexity, they are more fully discussed in Sections IV - V, below. 

After developing COAs, the staff briefs them to, and receives further guidance from, the commander. 

If one or more of the COAs are accepted, COA analysis commences. 

•	 Step 4: Course of Action Analysis (Wargaming) 

Wargaming is a critical step in the MDMP and should be allocated more time than any other 

step. COA analysis allows the staff to identify the COA that best accomplishes the mission. 

Wargaming helps to: 

•	 Visualize the COA’s progress and anticipate events 

•	 Determine unanticipated conditions and resources required 

37 See FM 5-0, supra note 35,p. B-15, Figure B-3 (COA development) 38 Id., supra note 35, at para. B-75 

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•	 Identify necessary coordination 

•	 Determine the most flexible COA.39 

For each COA, wargamers need to: 

•	 Accurately record advantages and disadvantages as they emerge 

•	 Continually assess feasibility, acceptability, and suitability. If a COA fails any of these tests, they 

reject it 

•	 Avoid comparing one COA with another during the wargame. This occurs during COA 

comparison.40 

The JA can play an important role in the COA analysis by ensuring that the staff avoids “groupthink.” 

Groupthink is a common failing of people or groups who work together to make decisions or solve 

problems. In doing so, they override the requirement to realistically evaluate alternative courses of 

action. The group makes a collective decision and feels good about it because all members favor the 

same decision. In the interest of unity and harmony, there is no debate or challenge to the selected 

solution. It is a barrier to creativity that combines habit (the reluctance to change from accepted ways 

of doing things), fear (the feeling of agitation and anxiety caused by being uneasy or apprehensive 

about: both fear of discarding the old to adopt the new and fear of being thought of as a fool for 

recommending the new), and prejudice (opinion formed without a rational basis or with insufficient 

knowledge). The risk of prejudice is a particular danger in ROL planning conducted within a military 

environment. JAs have professional training that aids them in approaching problems in innovative 

ways and in expressing divergent opinions – they should not be afraid to do so. 

•	 Step 5: Course of Action Comparison 

The COA comparison is intended to identify the COA with the highest probability of success 

against the most likely enemy COA and the most dangerous enemy COA. The selected COA 

should also: 

•	 Pose the minimum risk to the force and mission accomplishment 

•	 Place the force in the best posture for future operations 

•	 Provide maximum latitude for initiative by subordinates 

•	 Provide the most flexibility to meet unexpected threats and opportunities.41 

The ROL practitioner provides an important function in this step of the MDMP by ensuring that the 

courses of action are evaluated critically with regard to the desired ROL effects. The ROL 

practitioner must be vigilant that the staff remains focused on the end state and does not stray into 

“bricks and mortar” or other overly simplistic capacity building projects that are readily quantifiable 

and subject to logical, sequential planning but that do not decisively address the underlying 

legitimacy challenges in the ROL environment. 

•	 Step 6: Course of Action Approval 

In this step, the staff recommends a COA (being the one that they believe will best 

accomplish the mission), usually in a decision briefing. The commander decides which COA 

to approve, and then issues the final planning guidance and CCIRs.42 

The decision briefing includes an explanation of: the assumptions used; a summary of the wargame 

for each COA to include critical events; modifications to any COA; wargame results; and the 

advantages and disadvantages (including risk) of each COA. 

39 See id., supra note 35, at para. B-110. 40 See id., supra note 35, at para. B-112. 41 See id., supra note 35, at para. B-167-B173. 42 See id., supra note 35, at para. B-177. 

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• Step 7: Orders Production 

The staff prepares the order or plan by turning the selected COA into a clear, concise concept 

of operations with required supporting information. 

D. Military Planning and Rule of Law Operations: Some Final Thoughts 

By utilizing the MDMP, the commander, staff, and ROL practitioner analyze the complex rule of law 

environment in a systematic way that is familiar to the commander and staff. This planning tool 

establishes procedures for: analyzing a mission; developing, analyzing, and comparing courses of 

action against criteria of success and each other; selecting the optimum course of action; and 

producing a plan or order. Through the MDMP, the ROL practitioner can take a mission as complex 

and ill-defined as “improve the rule of law in this region” and convert that mission into a concept of 

operations that represents the best way to achieve the desired rule of law effects. 

The MDMP and Interagency/Coalition Efforts in Iraq 

In May of 2008, Multi-National Force-Iraq (MNF-I) and United States Mission-Iraq 

(USM-I) convened the 4th Annual Rule of Law Conference in Baghdad’s 

International Zone. The conference provided a forum for USM-I agencies, military 

personnel, United Nations, and NGOs to report on their efforts and achievements 

across the spectrum of ROL projects. 

Military participants noted that the detailed plans and guidance produced by MDMP 

were noticeably absent in the broader ROL mission. At that time, there had not been 

a comprehensive plan to structure the efforts and projects of the civilian agencies and 

non-governmental organizations. That failing was identified and discussed at the 

Rule of Law Conference. 

Planning Rule of Law Operations Internal to the Force:
 

Hypocrisy Helps the Enemy 

Conduct by our forces or those acting with us that appears to be contrary to the rule 

of law will not go unnoticed by our host nation partners and the international 

community, and will be exploited by our enemies. This was readily demonstrated by 

the situation at Abu Ghraib on our mission in Iraq and the ill-will created by the 

September 2007 shootings by U.S. security contractors in Nisour Square, Baghdad. 

Our response to crimes committed by U.S. forces must be transparent and 

communicated effectively to the local citizenry and the world to preserve our 

credibility as we attempt to build ROL.43 

The effective rule of law practitioner will obtain the commander’s guidance on 

training to minimize the possibility of any criminal, negligent, or culturally 

insensitive acts undermining the mission and will plan for the mitigation of any 

adverse consequences when any such acts do occur. 

43 FM 3-24, supra note 15, at 1-24. 

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III. Planning to Deploy 

This section of the Handbook discusses planning for a deployment (as distinct from planning a LOO) 

in three timeframes:44 

• Pre-deployment (approximately -180 to -30 days prior to deployment) 

• Initial deployment (approximately -30 to +90 days of arrival in the area of operations) 

• Sustained deployment (approximately +91 days to indefinite) 

The discussion below is to emphasize the tools required at each stage of planning for the ROL 

mission. It is not intended to be an exact road map, as planning for any operation will be situation 

specific. 

A. Pre-deployment Planning (D minus 180 to 30) 

The build up to many operations over the past two decades (Haiti, Bosnia-Herzegovina, Desert Storm, 

and Iraq (OIF)) displayed a substantial period of prior diplomatic activity that signaled to JAs, well in 

advance of receipt of a warning order, that informal planning for the ROL mission should begin. 

Even when available time is short, as was the case with Afghanistan in 2001, the principles of predeployment planning for the ROL mission remain the same; albeit compressed into a shorter 

timeframe. This planning involves the following: 

1. Staffing Considerations 

The assigned ROL JA is a member of the staff, not the commander’s JA. The proper use of staffing 

processes (vice JAG to JAG telephone calls) will ensure that, notwithstanding JA rank disparities 

between higher and lower authorities, ROL operations are conducted efficiently. It goes without 

saying that the ROL JA will need to be a proficient briefer, and be able to use PowerPoint 

effectively.45 The division and brigade staffs should have at least one NCO in support to ensure 

information flow while the attorney(s) are circulating in the AO.46 

At the brigade level and in SOTFs, JAs may have to perform the rule of law mission in addition to 

traditional legal work. As a note of caution, when a commander’s JA is also responsible for the ROL 

LOE, the JA must understand that these are distinct roles. Rule of Law issues must go through 

staffing as regular issues of the command. Dual hatted JAs should not use their access to the 

commander as a member of his personal staff for UCMJ and ethics issues to circumvent the staffing 

requirements entailed by the ROL LOO.47 

44 The timelines are indicative and 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 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 where JAs can benefit from the experience of their predecessors, the duration of the 

initial deployment phase might be shorter. 

45 34th Infantry Division, Minnesota Army National Guard, Staff Judge Advocate Iraq After Action Report, 

Multi-National Division – South, Basra, Iraq, April 2009 – February 2010, (23 February 2010) [hereinafter 

34ID IZ AAR, APR 09 – FEB 10; on file with CLAMO]. But see Elisabeth Bumiller, We Have Met the Enemy 

and He Is PowerPoint, N.Y. TIMES, April 27, 2010, at A1 (available at 

http://www.nytimes.com/2010/04/27/world/27powerpoint.html). 46 Id. 47 XVIII Airborne Corps, Office of the Staff Judge Advocate Iraq After Action Report, Multi-National Corps – 

Iraq, Baghdad, Iraq, February 2008 – April 2009, (9-11 June 2009) [hereinafter XVIII ABC IZ AAR, FEB 08 – 

APR 09; on file with CLAMO]. 

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Nonetheless, Brigade Judge Advocates (BJAs) have found that the combined workload generally 

requires more than two attorneys.48 One attorney should be specifically tasked and trained for the 

ROL role. 49 Ideally one or more civil affairs specialists and military police (preferably CID who 

can train investigators) will also be dedicated to the effort.50 Units might seek out reserve JAs with 

special skill sets that will compliment their ROL effort.51 And in any event, they should attempt to 

involve company level leaders in their pursuit of ROL objectives.52 

Beyond the permanent staff, the ROL mission requires that transportation and security be available.53 

The staff might also be occasionally augmented by a detention operations JA who has been crosstrained for the purpose of mitigating the ROL workload.54 Staffing requirements will shift as the 

operational environment develops. JAs in leadership roles should be prepared to plus up or reduce 

ROL manning as the situation dictates.55 

Knowing whether JAs will be working in a centralized headquarters environment with other JAs or 

by him/herself with a tactical unit impacts planning for: 

•	 the numbers of sets of legal resources (manuals/CDs, computers) that must be taken 

•	 communications capabilities (phones, email, and technical reporting channels) 

•	 chain of command issues, such as whether the solo JA assigned to a provincial or other remote 

location works for the tactical unit commander or is a local representative of higher headquarters. 

2.	 Understand the Host Nation Legal Environment. 

Influencing the ROL will inevitably require an understanding of the local legal system and the 

societal context within which it operates. Many units that ultimately became responsible for restoring 

the Iraqi legal system went into the mission with very little understanding of civil law systems, let 

alone knowledge or copies of pertinent Iraqi laws.56 The pre-deployment phase can be used to fill 

this knowledge gap and gain a general but invaluable understanding of the host nation legal system, 

thereby allowing a more immediate and effective engagement of that system upon arrival in theater. 

48 2d Battalion, 10th Special Forces Group (Airborne), Special Operations Task Force Legal Advisor Iraq After
 

Action Report, Victory Base Complex, Baghdad, Iraq, July 2009 – March 2010, (15 June 2010) [hereinafter 2d
 

BN 10th SFG(A) IZ AAR, JUL 09 - MAR 10; on file with CLAMO]. 

49 1st Brigade Combat Team, 4th Infantry Division, Brigade Judge Advocate Iraq After Action Report, March
 

2008 – March 2009, (28 April 2009) [hereinafter 1BCT, 4ID IZ AAR, MAR 08 – MAR 09; on file with
 

CLAMO]; 1st Armored Div., Office of the Staff Judge Advocate Iraq After Action Report, Multi-National 

Division – North, Contingency Operating Base Speicher, Iraq, September 2007 – December 2008, (19 February 

2009) [hereinafter 1AD IZ AAR, SEP 07 – DEC 08; on file with CLAMO]. 

50 XVIII ABC IZ AAR, FEB 08 – APR 09, supra note 47. 51 Combined Forces Special Operations Component Command – Afghanistan, Staff Judge Advocate 

Afghanistan After Action Report, Kabul, Afghanistan, August 2009 – November 2009, (27 May 2010)
 

[hereinafter CFSOCC-A AF AAR, AUG 09 – NOV 09; on file with CLAMO]. 

52 3d Brigade Combat Team, 10th Mountain Division, Brigade Judge Advocate Afghanistan After Action
 

Report, November 2008 – January 2010, (29 January 2010) [hereinafter 3BCT, 10th MTN AF AAR, NOV 08 –
 

JAN 10; on file with CLAMO]. 

53 1BCT, 4ID IZ AAR, MAR 08 – MAR 09, supra note 49; 1AD IZ AAR, SEP 07 – DEC 08, supra note 49. 54 10th Mountain Division (Light Infantry), Office of the Staff Judge Advocate Iraq After Action Report, MultiNational Division – Center/Multi-National Division – South, Camp Victory/Basra, Iraq, May 2008 – May 2009, 

(25 June 2009) [hereinafter 10th MTN DIV IZ AAR, MAY 08 – MAY 09; on file with CLAMO].

55 4th Infantry Div., Office of the Staff Judge Advocate, Iraq After Action Report, Multi-National Division – 

Baghdad, Camp Liberty, Iraq, November 2007 – February 2009, (30 April 2009) [hereinafter 4ID IZ AAR, 

NOV 07 – FEB 09; on file with CLAMO]; XVIII ABC IZ AAR, FEB 08 – APR 09, supra note 47.
 56 LTC Craig Trebilcock, Legal Assessment of Southern Iraq, 358th Civil Affairs Brigade (2003). 

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A four step approach to understanding a host nation legal system in the pre-deployment phase may, 

by way of example, look like this: 

•	 Step 1. Understand the political and historical context. Identifying legal traditions and 

origins helps the JA understand the current environment. 

•	 Step 2. Understand the roles and interests of major players and political will. Pay particular 

attention to those who might potentially support reform as well as those who benefit from the 

status quo. Assess the strength of political will to reform and options for capitalizing on it, 

strengthening it, or working around its absence. Be prepared to protect reformers. Solutions may 

include housing them and their families in fortified compounds and (in the specific case of 

judges) holding hearings at internment facilities or on protected compounds.57 

•	 Step 3. Examine program options across the spectrum of Rule of Law. Do not be confined 

to formal justice sector initiatives. Examine the overall state of the polity and its legitimacy. 

Consider actions such as political party development and legislative strengthening. 

•	 Step 4. Assess the justice sector. Assess the legal framework as well as justice institutions. 

Assessments are discussed in greater detail in Sections IV and V, below. 

Capitalize on USG and JA Resources 

For mature theaters, it is virtually certain that your predecessors will have developed 

a briefing on the host nation’s laws. For instance, the MNC-I ROL office has a 

briefing available on Iraq used in ROL Conferences for deploying JAs.58 

Another source of information about not only the mission but the context for the 

ROL is the unit you are replacing. 

Also, the Law Library of Congress can provide assistance. The Law Library has a 

librarian assigned to numerous regional law collections. In addition to appointments 

with the librarian and JAs assigned at OTJAG, the OTJAG-IO Pre-Deployment 

Preparation (PDP) Program can facilitate this process by obtaining copies of relevant 

materials and providing them for field use. 

These resources, and others, will help develop a country law pack as part of the pre 

deployment staff estimate process. 

Commanders often require JA’s advice on issues related to host nation commercial and business law, 

the resolution of which may affect operations designed to improve the economy, and how to utilize 

the local judicial system most efficiently (e.g., to resolve issues related to squatters).59 Arrest and 

release procedures, warrants, and detention orders often have the greatest operational impact as 

success in this area prevents detainees from being released and resuming their violence against 

57 Id. 58 Rule of Law Lessons Learned, MNC-I Rule of Law Section, Operation Iraqi Freedom 05-07 (Dec. 10 2006).
 59 This can be a very difficult undertaking and relates to the need to establish a good network of contacts within
 

the legal community. For example, there is a significant problem with squatters in Iraq but it is a difficult area 

of the law to develop. One unit was able to utilize its connectivity to obtain a copy of a pre-invasion Ministerial 

Order that served to provide severe criminal punishment for squatting without a color of right. Once obtained
 

and translated, the unit was able to better advise Iraqis with disputes on how to utilize the courts as a tool for the 

resolution of such issues. 

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coalition forces.60 An understanding that, for example, arrest warrants may be available from more 

than one source (e.g. in Iraq they may be obtained from local judges or the CCCI), will be of 

considerable benefit.61 That understanding will only come through a detailed knowledge of the local 

law. 

Aside from supporting the commander and staff, JAs often serve as mentors to local judges and 

prosecutors. They enter this role frequently at a disadvantage because of their youth relative to those 

they advise. This initial lack of credibility is compounded if the JA fails to understand basic host 

nation law. This combination of factors will fatally undermine their own credibility as a mentor.62 

Judge advocate mentors should not burden those who they are mentoring with basic questions that 

could have been answered in their own time, or attempt to indiscriminately foist U.S. procedure or 

law upon them. 

3. Plan for Coordination with other Rule of Law Participants 

Rule of law operations in Iraq and Afghanistan have repeatedly demonstrated that ROL practitioners 

who coordinate efforts, funding, and resources with other agencies and organizations yield the most 

effective and lasting results. During initial-entry into a non-permissive environment, the JA will 

often be alone among other military operators such as Military Police and CA personnel. A nonpermissive environment will limit the number of NGOs and IOs who are active in theater. 

Consequently, coordination activity will be limited, in the main, to other military entities, such as 

Military Police, Engineers, and the G-3. Setting up a ROL working group at the division level early 

in the planning process helps to ensure that ROL and other reconstruction efforts are unified. 

Once significant hostilities have concluded, other agencies such as DOS, USAID, DOJ, and non-U.S. 

IOs, and NGOs are likely to increase their in theater activity. Of the IOs and NGOs, a portion will 

have a direct interest in human rights and justice. Being aware during the pre-deployment stage of 

the number and nature of such organizations, and the capabilities and potential funding they bring, 

permits more meaningful planning for future operations. The ROL practitioner may exchange contact 

information with other field representatives through the chain of command (back to the interagency 

and intergovernmental coordination in Washington) and through local organizations (such as the 

Humanitarian Operations Center, Joint Interagency Coordination Group, or other similar 

mechanisms). 

Civil Affairs team members who have been engaged in government support missions over the past 

two decades often state that they know they have “worked themselves out of a job” by handing off 

future support operations to developed, competent host nation, nongovernmental organizations or 

international organizations. In many cases, this may be the desired end state in ROL mission 

planning. Specifically, where DOD has been given a lead on certain stability operation activities 

(which include certain ROL related operations), DODI 3000.05 requires that that lead responsibility is 

transitioned, as soon as feasible, to other USG Agencies, foreign governments and security forces, or 

international governmental organizations. 

4. Anticipate and Plan for Linguist Assets 

Be aware of the need for translators and interpreters, including that, within a single country, several 

languages or dialects may be spoken. In planning for and working with linguists, always be aware of 

60 Sea, Air, Land (SEAL) Team 7, Special Operations Task Force – West (SOTF-W) Detachment Judge 

Advocate Iraq After Action Report, Al Asad Airbase/Ramadi, Iraq, March 2009 – September 2009, (14 April
 

2010) [hereinafter SOTF-W IZ AAR, MAR 09 – SEP 09; on file with CLAMO]. 

61 Id. 62 25ID IZ AAR, NOV 08 – NOV 09, supra note 11. 

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cultural/sectarian divisions within the AO that might impact the effectiveness of your translator. For 

example, 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. Although a ROL team may not have its free choice of translator assets, it must remain 

aware that the cultural/social background of the assigned translators may impact their effectiveness. 

Finally, remember that a linguist with a lay background offers different capabilities than one with a 

legal background or training. 

It is highly beneficial to have an English-speaking local attorney in support of the ROL staff. Other 

interpreters, even highly proficient ones, will still confuse legal terminology or be imprecise in 

translation. Local attorneys can assist in warrant-based detentions, translating legal terms of art, and 

facilitating KLEs. Local attorneys are also invaluable because there are few libraries holding host 

nation law, and the available English translations found on-line are frequently inaccurate.63 A unit 

may hire several in order to spread them throughout their battle space to give classes to local police 

and religious leaders, to spread awareness and to provide civics lectures for the public, and to assist 

their PRTs.64 

When hiring a local attorney, it should be noted that many attorneys in Iraq and Afghanistan have no 

legal education. Therefore, the interview process should be thorough,65 and opinions offered after 

hire must be understood as having limitations. 

5. Tactical Considerations 

Those engaged in ROL missions must generally be mobile, have effective communication systems 

and plans (including a “Plan B”), and be able to provide their own security. A ROL team that deploys 

to a non-permissive environment without the ability to defend itself in a convoy will be largely 

ineffective. Although JAs added value is in their legal training and subject matter expertise, that does 

not mean that their warrior skills should not be equally as proficient. 

Deployed judge advocates have historically been hampered by a lack of organic transportation 

capability in conducting their ROL role. Civil Affairs units, in contrast, often deploy with their own 

transportation capability. If possible, find out which CA assets will be operating in your area during 

the period of your deployment and make preliminary contacts with them (with the battalion or brigade 

International Law Officer) to build rapport for the future when you may need to coordinate convoy 

operations. 

6. Rule of Law Pre Deployment Briefings for Commanders 

Judge advocates should consider educating commanders, operations officers, and staff planners prior 

to deployment upon how ROL issues can impact mission accomplishment. The JA should not 

assume that war fighting battalion and brigade commanders will readily appreciate how something as 

intangible as the local populace’s attitude toward their legal institutions can have a direct impact upon 

63 Individual Augmentee, Multi-National Force-Iraq, Office of the Staff Judge Advocate (Rule of Law Section)
 

Iraq After Action Report, October 2008 – December 2008, (9 February 2009) [hereinafter MNF-I Individual
 

Augmentee IZ AAR, OCT 08 – DEC 08; on file with CLAMO]. 

64 3d Brigade Combat Team, 1st Infantry Div., Brigade Judge Advocate Afghanistan After Action Report, 

Forward Operating Base Fenty, Jalalabad, Afghanistan, July 2008 – June 2009, (29 August 2009) [hereinafter
 

3BCT 1ID AF AAR, JUL 08 – JUN 09; on file with CLAMO]. 

65 XVIII ABC IZ AAR, FEB 08 – APR 09, supra note 47; 2d Brigade Combat Team, 101st Airborne Division
 

(Air Assault), Brigade Judge Advocate Iraq After Action Report, Camp Liberty, Iraq, October 2007 – 

November 2008, (13 January 2009) [hereinafter 2BCT, 101st ABN DIV (AASTL) IZ AAR, OCT 07 – NOV
 

08; on file with CLAMO]; 1AD IZ AAR, SEP 07 – DEC 08, supra note 49. 

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security and stability. To this end, JAs must understand, and be able to explain, how ROL nests 

within the elements of stability operations and COIN. Operating courts, effective police forces, 

functioning prisons, and a reduction of violence materially benefit mission accomplishment. Predeployment briefings on ROL considerations (and in particular, operational benefits) will help the 

commander appreciate the need to make the ROL a planning and resource priority. 

7. Pre-Deployment Resources 

Judge advocates should develop a library of theater specific legal materials during the pre-deployment 

stage. This library will continue to grow following deployment. Core materials should include (in 

English and the local language) a host nation’s: 

• Constitution 

• Criminal code 

• Criminal procedure code 

• Civil code 

• Civil procedure code 

• Administrative law 

• Citizenship law 

• Property law 

• Laws on organization of the government in general and courts in particular 

• Laws on organization of the police and prisons. 

Much of this information can be obtained through consultation with the DOS, to include relevant 

DOS country teams. However, if regular channels are unable to provide the necessary materials, 

these resources may often be found in English translation through: 

• The Library of Congress 

• Law school libraries (domestic and foreign) 

• Large civilian law firms.66 

In addition to obtaining relevant host nation black letter law, the JA ROL practitioner should draw 

upon the extensive post conflict ROL experience that other non-military organizations possess. These 

include: 

• USAID (State Department) Justice/Rule of Law guides 

• The United Nation’s Rule of Law Coordination and Resource Group 

• Department of State Regional and Global Bureaus 

• U.S. Embassy country teams in the expected area(s) of operation. 

It goes without saying that operational security requirements may influence the manner in which 

information is solicited. 

66 Firms engaged in international business will have treaties/civil codes or practice notes for foreign nations. 

Many such firms also have JA reservists or former JAs employed who are often willing to be of assistance to 

direct you to source materials. 

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The Pre-Deployment Preparation (PDP) Program 

In January 2009, The Judge Advocate General established the Pre-Deployment 

Preparation (PDP) Program to identify and coordinate resources for deploying JAs, 

paralegals, and warrant officers. The program, which falls under the International 

and Operational Law Division of OTJAG, is a source of invaluable information in all 

aspects of deployed legal practice, including ROL. Deploying JAs are encouraged to 

contact the PDP Program for timely information on how ROL and other OPLAW 

missions are being conducted downrange.67 

B. Initial Deployment Planning (D minus 30 to plus 90) 

Immediately before deployment, ROL planners will likely be occupied with pre-deployment 

processing, preparing equipment for shipment, and personal issues. Accordingly, the D-30 ROL team 

plan will most probably be that which exists upon arrival in theater. Following deployment, ROL 

teams may spend several weeks at intermediate staging bases (ISBs).68 The ROL team should make 

contact with the ISB’s S-2 section in order to determine what local information it has that is of 

relevance to ROL. 

The planning cycle will go into high gear upon arrival in theater. Frequently, the nature of the 

expected mission or individual assignment changes, and command and reporting relationships are 

altered to meet the reality on the ground. Further, and most significantly, the ROL team planners now 

come into contact for the first time with the infrastructure and personnel (country nationals, coalition 

allies, other USG agencies, NGOs, and IOs) with whom they will be directly conducting the ROL 

operation. The ROL team will be awash with new information as they begin to update their 

assessment of host nation ROL. As the team begins to understand the interrelationships and systems 

affecting ROL, they create the foundation from which sustained deployment planning will develop. 

1.	 The Nature of Initial Deployment Planning. 

During the initial deployment phase the ROL planner may need to: 

•	 Identify short-term goals, activities, and strategies that will demonstrate early success and 

generate political support in a post-conflict setting where conditions are evolving rapidly. 

•	 Assign responsibilities, designate timelines, and provide performance benchmarks for both the 

initial deployment phase and the longer term sustained deployment phase. 

a.	 Provide for Demonstrable Early Success 

The conclusion of armed conflict, or the immediate aftermath of a natural disaster, provides a limited 

window of time within which to secure the confidence and support of the local population. The most 

intelligent, ambitious, and strategically oriented plan to restore the ROL may rapidly become 

irrelevant unless some simple “quick wins” are front-loaded into the plan to create an atmosphere of 

progress and a return to normalcy. Be prepared to use these kinds of projects throughout the 

operational effort in order to maintain momentum and continually reinforce positive perceptions. 

When short-term measures are used, they should, if at all possible, be performed under a mantle of 

authority consistent with the preexisting criminal code. It will be easier to succeed in long-term 

reform if the emergency measures initially relied upon are grounded in the host nation law. 

67 The PDP Program may be contacted at pdp@conus.army.mil or (571) 256-2913. 68 E.g., Hungary for Joint Endeavor; Saudi Arabia for Desert Storm; Kuwait for OIF. 

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Adherence to a legal code at each step of the ROL reform process strengthens, rather than 

undermines, the legitimacy of actions in the eyes of the population. 

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 

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. 

As security is established, legislative and executive (to include policing) functions can be restored, 

and judges can begin working. When necessary, these officials can work from temporary facilities 

until new structures are built in the secure environment. For example, court can be held in a school or 

warehouse until a court house becomes available. However, constructing infrastructure, such as 

government buildings, courts, police stations and prisons, is counterproductive if it is then destroyed 

or left vacant. Whatever the security situation, ROL JAs should expect their role to grow throughout 

the deployment, and perhaps rapidly so.69 

b. Create Mechanisms for Locals to Interface Positively with their Legal System 

Strive to increase the opportunities for the populace to interface with, be educated on, and access 

relevant ROL institutions. Foster a popular demand for, and investment in, the ROL. In many 

authoritarian states, the judicial system and the police are regime tools used to control the population. 

Endeavour to make local ROL institutions transparent and trustworthy by planning mechanisms for 

positive interaction. These could include manning an “information table” staffed by local 

government employees, or distributing informational flyers. Posting copies of laws, or changes to 

them, in the local language in a publicly accessible location can be beneficial if host nation officials 

are actually enforcing the law and the postings are not just further evidence of officials’ corruption or 

incompetence. Even where the latter is the case, an increased transparency about the legal process 

will help hold such officials to account. 

Encouraging a local law school to sponsor conferences (e.g. on the constitution, human rights, etc.) 

involving government officials and the public, and having no overt U.S. presence (to ensure it bore 

the face of the host nation), proved to be a great success in one instance in Iraq.70 In another instance, 

the Iraqi constitution, and the rights it created, were explained to citizens through the medium of a 

stage production, with a local law professor introducing the show. DVDs of the show were produced 

and distributed.71 

Because of the necessity to involve foreign nationals in ROL efforts, JAs should ensure they classify 

their materials at the appropriate level, and build unclassified information packets in conjunction with 

69 XVIII ABC IZ AARIZ2009 OIF AAR, FEB 08 – APR 09, supra note 47. 70 41st Fires Brigade, Brigade Judge Advocate Iraq After Action Report, Forward Operating Base Delta, Iraq, 

February 2008 – July 2009, (7 July 2009) [hereinafter 41st Fires BDE IZ AAR, FEB 08 – JUL 09; on file with
 

CLAMO].

71 Id. 

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their unit’s foreign disclosure officer, so that useful material is not needlessly withheld from those 

would benefit from it.72 

The problem of government corruption is exacerbated by public tolerance, and a feeling of 

helplessness when it confronts them. Educating the public about their rights under the law builds an 

expectation that, ideally, leads to public demand for accountability, or at least a reduced tolerance 

when it is encountered and an increased likelihood of it being reported. Measures to increase 

accountability will fail if the public remains passive. Programs that educate the public about their 

rights and corruption reporting mechanisms, pressure officials to perform their roles in a less 

predatory manner. Public education can be accomplished through a number of different mediums 

such as classes, radio programs, billboards, or printed literature (to include books, newspapers and 

comics etc.).73 

Public education programs can be pursued even in poor security environments where other 

substantive ROL projects would be premature. For instance, U.S. forces in Khowst Province built a 

program where the local law school provided interns to jirgas to advise the elders on legal issues and 

aspects of the Afghan Constitution that applied to cases it was hearing, as well as to record the 

outcomes of the hearing. The project was Afghan owned, with local national attorneys, rather than 

U.S. JAs, liaising between the jirgas and the law school.74 

c. Monitor and Mentor Local Officials and Professionals 

The ROL practitioner must make frequent contact (at least daily in an occupation environment) with 

local justice officials to ensure progress toward ROL. Where the logistical and security situation 

allows, consideration should be given to establishing an embed program. Oversight, mentoring, and 

instruction are absolutely necessary to achieve change in the system. 

The Resilience of Old Practices in Iraq 

In OIF-1, Iraqi judges would appear to enthusiastically accept all of the guidance or 

instructions given by Coalition JAs. As soon as the JA departed the courthouse 

facility, the judges returned to doing business in the way that was familiar to them, 

including permitting judges dismissed by the Coalition to re-enter the courthouse and 

occupy their former offices. It required a continuous physical JA presence in the 

courthouse to make change take root. 

The absence of a safe and secure environment should not prevent training and networking of 

government officials and ROL related facilitators (for example, in order to ensure that the police 

know what prosecutors require to try a case) from taking place. This will improve their efficacy 

when the security situation allowed them to recommence work. Building relationships with 

72 Individual Augmentee, Combined Joint Task Force – 82, Rule of Law Section Afghanistan After Action 

Report, Bagram Airfield, Afghanistan, October 2009 – January 2010, (18 February 2010) [hereinafter IA CJTF82 RoL Sec AF AAR, OCT 09 – JAN 10; on file with CLAMO].

73 4th Brigade Combat Team (Airborne), 25th Infantry Division, Brigade Judge Advocate Afghanistan After 

Action Report, Forward Operating Base Salerno, Afghanistan, February 2009 – February 2010, (27 March 

2010) [hereinafter 4BCT 25ID AF AAR, FEB 09 – FEB 10; on file with CLAMO]. 74 Id. 

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appointed officials and jurists takes time. It is never too early to begin developing these 

relationships.75 

Relationship building—by Commanders and JAs—requires more than an occasional visit. Regular 

and frequent visits should be conducted where social matters, and not just work, are discussed.76 

However, JAs should be aware that impromptu visits can be disruptive, or even endanger, host 

nationals. Where that is judged to be the case, a JA should consider maintaining contacts via less 

intrusive means such as telephone calls.77 

Prior to engaging local lawyers, judges, ministers or community leaders, JAs should work with 

cultural advisors to gain an understanding of local social customs and protocols.78 This is particularly 

important in societies such as Afghanistan where the local population has historically been suspicious 

of outsiders and the judiciary.79 Similarly, locals are more likely to embrace ROL initiatives when 

they think the idea is their own, or failing that, that it is the idea of one of their countrymen.80 

Key Leader Engagements (KLEs) must be thoroughly planned. The intent of the engagement (deliver 

a message, build rapport, gather information) must be determined, with questions and follow up 

action planned in advance. Given that such engagements invariably expose personnel involved to 

harm, poorly planned and consistently unproductive engagements should not be conducted.81 

When engaging key figures, U.S. participants should prepare for the engagement meticulously. They 

must share talking points with all other coalition participants to ensure they are sending a single, 

unmixed message, and that other entities who engage with the host nation official are not 

inadvertently undermining their goals. ROL practitioners working in adjoining localities should 

similarly remain connected with regularly scheduled meetings (online or videoconference if 

available).82 Even when no other parties are involved, “shooting from the hip” can result in 

confusion, loss of credibility, and failure to achieve goals.83 

Track events following visits and KLEs (see Chapter 6 of FM 5-0 regarding assessment) to assess 

their efficacy. If KLE’s result in reduced productivity, or if local nationals suffer repercussions as the 

75 3d Brigade Combat Team, 4th Infantry Division, Brigade Judge Advocate Iraq After Action Report, Forward 

Operating Base War Eagle, Iraq, December 2007 – February 2009, (6 May 2009) [hereinafter 3BCT, 4ID IZ
 

AAR, DEC 07 – FEB 09; on file with CLAMO]. 

76 Asymmetric Warfare Group, Judge Advocate Iraq After Action Report, November 2008 – April 2009, (17 

April 2009) [hereinafter AWG IZ AAR, NOV 08 – APR 09; on file with CLAMO].

77 2d Brigade Combat Team, 1st Armored Division, Brigade Judge Advocate Iraq After Action Report, Camp
 

Stryker, Iraq, July 2008 – June 2009, (25 September 2009) [hereinafter 2BCT, 1AD IZ AAR, JUL 08 – JUN 09; 

on file with CLAMO]. 

78 JUDY BARSALOU, TRAUMA AND TRANSITIONAL JUSTICE IN DIVIDED SOCIETIES 8 (USIP 2005).
 79 See LAUREL MILLER & ROBERT PERITO, SPECIAL REPORT: ESTABLISHING THE RULE OF LAW IN
 

AFGHANISTAN 6 (USIP 2004) [hereinafter AFGHANISTAN REPORT]. 80 1st Battalion, 9th Marines, Battalion Judge Advocate Iraq After Action Report, March 2008 – October 2008, 

(9 January 2009) [hereinafter 1/9 Marines IZ AAR, MAR 08 – OCT 08; on file with CLAMO].

81 25ID IZ AAR, NOV 08 – NOV 09, supra note 11. 82 1BCT, 4ID IZ AAR, MAR 08 – MAR 09, supra note 49; see also, 4ID IZ AAR, NOV 07 – FEB 09, supra 

note 55; 1st Brigade Combat Team, 101st Airborne Division (Air Assault), Brigade Judge Advocate Iraq After 

Action Report, Contingency Operating Base Speicher, Iraq, September 2007 – November 2008, (15 January
 

2009) [hereinafter 1BCT, 101st ABN DIV (AASLT) IZ AAR, SEP 07 – NOV 08; on file with CLAMO]. 

83 Director, Interagency Rule of Law Coordinating Center Iraq After Action Report, U.S. Embassy, Baghdad, 

Iraq, June 2008 –June 2009, (29 June 2009) [hereinafter Director IROCC IZ AAR, JUN 08 – JUN 09; on file 

with CLAMO]; 25ID IZ AAR, NOV 08 – NOV 09, supra note 11.
 

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result of their interactions with coalition personnel, the method of engagement will need to be 

reassessed to achieve the desired effect.84 

For a justice system to function efficiently, its constituent parts must be able to work together. 

Assessments must consider not only the internal functioning of institutions, but the manner in which 

they interact with one another.85 Solutions for dysfunctional systems may be non-traditional. In 

Wasit Province, Iraq, a dysfunctional relationship between the police and the courts was alleviated by 

encouraging the chief judge to organize investigative training for the local police. This not only 

educated the police on the requirements for successful case disposition, it built relationships and 

networks. The initial success led to the training expanding into a number of regularly held sessions. 

When these were complete, the judiciary then designed, of their own volition, an advanced course for 

graduates of the first training package.86 

Once mentors for police and judges are in place, there are two primary obstacles to the just resolution 

of a case, security and corruption. Judges may dismiss on scant grounds, and prosecutors may 

actually argue in favor of dismissing their case.87 The impact of corruption can be lessened by having 

independent law enforcements mechanisms overseeing, and, maintaining checks, on each other. The 

difficulty with this approach lies in motivating local nationals to implement such procedures. While 

officials will be against corruption conceptually, they may be understandably reluctant to jeopardize 

their own income streams or those of their personal networks—those to whom they are loyal and who 

are loyal to them. 

Some problems that appear to be caused by corruption may, instead, be due to the security situation. 

When security is low, the police may be unwilling to investigate cases or witnesses to testify. Where 

witness testimony is given, it may be intentionally vague or misleading. Similarly, judges may 

understandably find excuses to dismiss a case when their lives, or those of their family, are threatened 

by groups or individuals who are sympathetic to the accused.88 An interim solution may be the use of 

traveling judges with no ties to the area where the trial will be held.89 These judges can also be used 

as a comparative assessment tool. If traveling judges generate the same sort of findings as the local 

judges, the problem may be an evidentiary one rather than that relating to corruption or a lack of 

security.90 

JAs should not assume that another unit’s or organization’s conclusion about the cause of problems in 

the local system is accurate, but rather should determine the cause themselves before committing 

additional resources to a solution. 

d. Plan Security for Justice Sector Personnel 

Unsurprisingly, judges will not readily embrace ROL initiatives if it means their death at the hands of 

those who have a vested interest in seeing judicial reform fail. If the success of a ROL mission 

depends upon judicial personnel being secure, they should be protected in the same manner as any 

other mission essential asset. While the point may seem obvious, protection of judges is frequently a 

low or nonexistent ROL priority in the aftermath of major combat operations. 

84 2d Stryker Cavalry Regiment, Regimental Judge Advocate Iraq After Action Report, Camp Stryker, Iraq, 

August 2007 – May 2008, (17 February 2009) [hereinafter 2SCR IZ AAR, AUG 07 – MAY 08; on file with
 

CLAMO].

85 See CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM HAITI (1995)
 

[hereinafter HAITI LL] at 102-05.
 86 41st Fires BDE IZ AAR, FEB 08 – JUL 09, supra note 70.
 87 Id. 88 Id.
 89 25ID IZ AAR, NOV 08 – NOV 09, supra note 11. 

90 Id.
 

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Protection of Judges in Early Rule of Law Efforts in Iraq 

Lack of funding and personnel were most often cited by the Coalition Provisional 

Authority as a reason for leaving Iraqi judges, who were cooperating with the 

coalition, to protect themselves from anti-coalition elements. The consequence of 

this lack of security planning was the subsequent murder of many pro-coalition Iraqi 

judges and their family members, including the Chief Judge of Najaf, by criminal and 

insurgent forces. The result was a chilling effect on other Iraqi judges and attempts 

at ROL reform.91 

e. Coordinate with Non Governmental and International Organizations - but 

Recognize their Limitations. 

Because they are plentiful and their capabilities are frequently unknown, it is easy to become overly 

reliant during planning upon expected support from International Organizations (IOs) and Non 

Governmental Organizations (NGOs). Such organizations are often either unable or unwilling to 

maintain a presence in post-conflict areas of operation (AO), especially those subject to active 

insurgencies. For instance, many IOs that had begun reconstruction assistance in Iraq withdrew in 

2003 after the UN headquarters in Baghdad was bombed. Any plan for the initial deployment period 

should be realistically premised upon the capability of the unit to accomplish goals without outside 

organization assistance. 

Rule of law plans should, at the very least, be coordinated among JAs and police trainers (military 

police and Law Enforcement Professionals). However, other agencies in the AO should also be 

coordinated with to prevent repetition (e.g. duplicate training of a subject area) and waste (e.g. 

duplicating construction of facilities), maximize effects, and to prevent confusion among third 

country nationals and loss of our credibility.92 The need to coordinate with other USG agencies does 

not relieve U.S. forces of the requirement to execute ROL operations unilaterally when necessary.93 

While other USG agencies are tasked with responsibility for developing comprehensive ROL 

programs and strategies, a variety of operational or financial issues, or internal hurdles may prevent 

rapid execution by lead agencies for a significant period of time. As a result, JAs at all levels must be 

prepared to execute such programs until such time as they can be merged into a larger framework. 

These operations should be carefully crafted and integrated into the campaign planning process and 

tied to the accomplishment of desired objectives.94 

91 LTC Craig Trebilcock, Justice Under Fire, ARMY LAW. (Nov. 2006). 

92 2SCR IZ AAR, AUG 07 – MAY 08, supra note 84; 1AD IZ AAR, SEP 07 – DEC 08, supra note 49; XVIII
 

ABC IZ AAR, FEB 08 – APR 09, supra note 47.
 93 DOD DIR 3000.05, supra note 4.
 94 OEF/OIF LL, Vol. II, supra note 9, at 24-28.
 

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Existing ROL Activities 

When entering mature theaters such as Iraq and Afghanistan, it is critical for JAs to 

become aware of existing ROL activities. In Iraq, the MNF-I OSJA developed a 

fully integrated relationship with the broader ROL community, and compiled a 

detailed roster of offices and individuals involved in justice operations, as well as a 

guide to the various activities conducted by various governmental and nongovernmental actors supporting the ROL mission.95 The MNF-I ROL inventory 

noted that coordination among the stakeholders in this arena had “proven difficult” 

and that the guide’s purpose was to provide an overview of participants as well as 

points of contact to facilitate coordination.96 This MNF-I product should be 

considered as a model for use in other theaters. Effective interagency coordination 

such as this will help operators strengthen ROL efforts that suffer from “a lack of 

strategy and a lack of capacity.”97 

C. Sustained Deployment Planning (D plus 91) 

As the deployment progresses, the focus should shift almost exclusively to building the conditions for 

lasting, long-term ROL—those goals that make a system of law legitimate, relevant, and trustworthy 

in the eyes of the local population. “Condition building” should not be confused with constructing 

buildings. The number of operating courthouses, etc. is a metric of negligible value in assessing 

stability operation success if the citizenry does not seek to access the system to resolve grievances, 

but instead relies upon violence or non-governmental bodies.98 That said, tangible infrastructure, 

such as the existence and operating condition of courthouses, police stations, prisons, and upon the 

availability of personnel should not be overlooked. If one does not have the physical tools and 

personnel to implement plans, the more sophisticated aspects of the ROL mission cannot be 

accomplished. 

However, it is important to recognize that, as the ROL mission enters the sustained deployment 

phase, planning, assessments, and metrics that continue to focus primarily upon tangible resources 

like infrastructure, and do not progress to a more complex, effects-oriented understanding of the ROL 

mission, will miss the ultimate ROL goal. That of creating a system that is viewed as legitimate, 

relevant, and trustworthy in the eyes of the local population. Built upon the assessment process 

discussed 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 the 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 

95 MNF-I (OSJA), Rule of Law Programs in Iraq: March 2006 Inventory (March 2006). 

96 Id. at 4.
 97 AFGHANISTAN REPORT, supra note 79. It should be noted that no agency appears to have an organic 

capability to conduct ROL operations. At best, such a capability can be cobbled together from skill sets from
 

among the various agencies. In environments where active combat operations are ongoing, the military may be
 

the only agency that can provide the force protection necessary to maintain freedom of movement. Efforts to
 

conduct ROL operations from the relatively safe confines of a “green zone” by having local judicial personnel 

travel to the FOB for meetings is ineffective and may signal fear or a lack of commitment. 

98 See Rachel Kleinfeld, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW ABROAD:
 

IN SEARCH OF KNOWLEDGE 31, 61-62 (Thomas Corothers ed., 2006). 

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mission if the citizenry does not seek to access the system to resolve grievances and instead continues 

to rely upon violence in the streets for resolving disputes. 

The concept of the ROL within a society is an intangible that the infrastructure metrics, so important 

during the initial deployment phase, do not capture. Accordingly, the wise ROL planner must 

recognize when it is time for the mission to evolve from the infrastructure-focused initial deployment 

phase to the effects-focused sustained deployment phase. Failure to recognize the need for transition 

in planning can lead to a cycle of repeatedly counting and reporting of the number of operating 

courthouses, etc., while failing to qualitatively analyze whether the existence of those facilities is 

making a positive impact upon the perceived legitimacy of the legal system in the eyes of the 

population. 

The narrow focus that necessarily controls the initial phase of a ROL mission must evolve into a 

broad-based, effects-driven plan that considers both justice and political factors within a society in 

order to have long-term success in establishing the ROL.99 

As such, the ROL planner must recognize that the nature of planning will necessarily become more 

sophisticated and complex from a social and political viewpoint during the sustained deployment 

phase, even as the emergency conditions that dominated the initial deployment phase (such as the 

rebuilding of destroyed infrastructure, for example) are ameliorated. 

Sustainable ROL operations will, for example, strive to educate officials, while creating checks 

within the system so that the officials do not misuse their power. Concurrently, they may engender 

civil society pressure to build a non-acquiescent, hostile environment for corrupt officials. Specific 

lines of effort might include: 

•	 Law school curriculum reform 

•	 Establishing community based legal service 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 ROL 

•	 Educating judges and leaders in the legal system on international norms of justice 

•	 Linking host nation government legal organizations with law-related NGOs. For example, the 

American Bar Association conducts ROL programs in many developing countries, including 

several former Soviet republics.100 

•	 Develop meaningful oversight mechanisms, such as ombudsman offices or judicial/police 

inspection offices, to check corruption or misuse of government resources for private gain101 

•	 Bolstering crime prevention through 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). 

•	 Educating police and prosecutors on evidentiary requirements for a successful prosecution. 

•	 Establishing disarmament/weapons buyback programs 

•	 Encouraging the formation of civil political interest groups 

•	 Addressing salary levels that make underpaid officials more susceptible to corruption 

99 Id. 100 For more information on the ABA’s ROL HN programs, see Table 2 in the Appendix B.
 101 Particular care needs to be exercised in setting up oversight organizations, since they can themselves become
 

corrupt and improperly use their oversight positions as a platform from which to exert a coercive or corrupting 

influence over the courts. 

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•	 Building oversight and citizen awareness of court programs, including judicial outreach and 

education programs that familiarize citizens with the law and courts. (Citizens that understand 

the process are more likely to advocate for the legitimacy in government). 

IV. Conducting Initial Situation Analysis / Baseline Assessment102 

Dr. David Kilcullen proposed that a snapshot of rule of law at a given point in time can be had by 

answering two questions. First, where do the judges sleep? If they “commute in” to their districts 

from another area, or if they never visit their assigned districts at all, then rule of law, and likely 

security, are lacking. Second, if your bicycle were stolen, to whom would you report it? If the 

answer is someone other than the police, then the police do not have the confidence of the people— 

indeed, they may be seen as an officially-empowered predatory group to be avoided.103 

While Kilcullen’s two stage test may be, superficially attractive, its pragmatic efficacy is 

questionable. There are, for instance, many legitimate reasons why a judge may, or may not, reside in 

the locale in which he resides. Any operation requiring a rule of law component is probably 

complex—possibly so complex as to defy simplistic methods of measurement and analysis. The 

often cited – almost impenetrable – diagram depicting the Afghan Stability / COIN dynamics104 is 

demonstrative of that fact. But that does not mean that rule of law cannot be assessed or measured; 

rather, that linear, mechanical approaches will produce only part of the picture. Rule of law programs 

are designed by judge advocates for two reasons: their substantive expertise in providing justice in a 

life-threatening environment, and their procedural skill in evaluating complex and ambiguous 

situations. Conducting an assessment and designing metrics for a ROL program will test the limits of 

both capabilities. 

The military ROL practitioner will be familiar with a military commander’s inherent desire for 

immediate and tangible success. That success is particularly hard to demonstrate in ROL programs, 

where “success” or an ultimate end state may require generational change. Given the long term, 

inherently developmental, nature of ROL strategy, effective ROL measurement systems typically 

attempt to track the advancement of a rule of law program, or movement towards end states, rather 

than its achievement of definitive set criteria. The basic component of such measurement systems 

typically comprise assessment, monitoring, and evaluation phases. The assessment creates a baseline 

to work from and develops the indicators that will be used to measure change. Consistent monitoring 

of both qualitative and quantitative indicators allows for an appraisal of progress against the goals that 

have been set. Evaluation provides a more detailed assessment of progress during particular points in 

time.105 All of these tools work together to measure change and determine whether the program 

design is proving successful, or whether it requires enhancement, or reassessment. 

Some confusion exists in the use of the term “assessment” because it encompasses a process with two 

distinctly different activities that, in practice, overlap and work together to provide a running estimate 

of the ROL situation. The first, the baseline assessment, involves an analysis of the ROL 

environment as you find it. The second relates to measuring your progress in achieving the tasks set 

out in your plan. The latter is covered below in Section VI, Metrics. 

102 The foundation of the sections on assessment and metrics in this chapter is the “Measuring Rule of Law” 

chapter in the 2010 Handbook, written by Thomas C. Wingfield, Professor of International Law, George C. 

Marshall European Center for Security Studies. 

103 See generally David Kilcullen, Measuring Progress in Afghanistan, in COUNTERINSURGENCY (Oxford 

University Press, 2010). 

104 http://catastrophist.files.wordpress.com/2009/12/afghan-stability-coin-draft.jpg. 105 U.K. Department for International Development. [DFID], How To Note: Measuring and Using Results in
 

Security and Justice Programmes, at 16 (Aug. 2010) [hereinafter DFID Metrics Practice Paper]. 

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A. The Data Collection Phase 

Essential questions to ask when beginning an assessment are: what are the needs; and what is the 

desired outcome? According to FM 3-24 (at D-38): 

“Establishing the rule of law is a key end state in COIN. Defining that end state requires 

extensive coordination between the instruments of U.S. power, the host nation, and multinational 

partners. Additionally, attaining that end state is usually the province of HN authorities, 

international and intergovernmental organizations, the Department of State, and other U.S. 

governmental agencies, with support from U.S. forces in some cases.” 

Once the ROL end state has been defined, a baseline assessment must be compiled to formulate a 

starting point from which to work towards that end state. In this phase, a typical JA “judicial” based 

ROL assessment may consider the number of courthouses, location of judges, education of 

prosecutors, drivers of corruption, strength, or otherwise, of defense attorneys, and competence of 

administrators in each region, province, and district (or host nation specific geographical division) of 

the host nation. A justice system is, typically, a vertically and horizontally integrated system of 

systems. An evaluation of the quality of the existing civil and criminal systems as a whole will 

almost certainly add to the efficacy of the assessment. To accomplish this assessment, you should 

consult sources of data, such as intelligence, interagency colleagues, coalition partners, surveys and 

polling, statistics, experts, and content analysis. 

106 Gathering information from other agencies, NGOs 

and IOs is a good way to meet the other ROL practitioners in your area and plant the seeds for an 

integrated and synchronized ROL effort. However, these parties may be consumed with their 

immediate priorities, so do not sacrifice valuable planning and execution time waiting for others who 

are unable to respond. At a minimum; however, the JA must know exactly how to find and 

communicate with key personnel (building stronger relationships whenever possible), including the 

various commercial numbers, email addresses, and addresses or grid coordinates where they can be 

located.107 

Given the plethora of individual ROL actors, drawing upon the findings of other governments, donors 

and stakeholders is an economic manner in which to collect data. It can also address the most often 

criticized aspect of ROL assistance – the piece meal, uncoordinated and donor driven approach to 

justice (and security) institutions.108 Perhaps most importantly, the people who are affected most by 

the ROL, or lack of it, should be asked for their views and recommendations. 

Partnership with the host nation in the assessment phase is crucial. It will encourage the host nation 

to take a role in designing, implementing, monitoring and “owning” its development, in turn 

furthering the twin goals of sustaining and legitimatizing reform.109 This approach is in keeping with 

the “Sector Wide Approach” (SWAp) to international ROL development programs, and indeed to 

international aid programs generally,110 the theory being that the host nation’s involvement from the 

earliest phases of development will create an incentive for it to maintain a functioning rule of law 

106 U.S. JOINT FORCES COMMAND, UNIFIED ACTION HANDBOOK SERIES BOOK FIVE, HAND BOOK FOR MILITARY 

SUPPORT TO RULE OF LAW AND SECURITY SECTOR REFORM, Ch. VII at 3-4 (June 13, 2011) [hereinafter JFCOM 

UNIFIED ACTION HANDBOOK SERIES BOOK FIVE]; see infra the U.S. Institute of Peace’s MPICE example found 

in Part V of this chapter for a more comprehensive treatment of the subject. 

107 Id. at 27-29. 108 See 2011 United Nations Rule of Law Unit report on National Perspectives on Rule of Law Assistance [6 

April 2011] at p 1.

109 Id. at 1. 110 SWAp – an approach that aims to bring stakeholders together under one umbrella and which is characterized 

by a set of operating principles rather than a specific package of policies or activities. Other benefits attributed 

to this approach are the production of a single (vice public and private) sector policy, and common, realistic and 

agreed procedures for funding, expenditure, and monitoring. 

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system after its foreign partners have departed. The key to success is that all parties involved be on 

the same page when it comes to expectations and the desired outcome. 

The ROL team should focus on learning what is known and, of at least equal importance, what is not 

known about the ROL environment in his area of concern. This process is referred to as either 

situation analysis or assessment. An assessment is the factual foundation upon which effective 

planning for the ROL mission occurs and is a study of conditions existing within the area of 

operations at any given time. In addition to developing plans to stabilize an area, ROL teams 

generate assessments of: a foreign nation’s courts, prosecutors, police, and detention facilities (in 

essence, its ability to contribute to security provisions). An assessment may be informal or formal in 

nature, ranging from a couple of pages of hastily created observations at the beginning stages of 

deployment, to thorough studies that are dozens of pages long which reflects date from a sustained 

deployment cycle. 

In addition to reporting the ground truth, analysis must be done to determine which information 

explains the difference between the desired ROL condition and the current conditions. In identifying 

problem areas, the ROL practitioner should seek to identify the root cause of the problem, not merely 

the symptoms.111 From this, the ROL team will extrapolate the centers of gravity – there will be 

more than one due to the numbers of players needed to deliver the rule of law – for ROL issues in the 

area of operations. A center of gravity is the set of characteristics, capabilities, and sources of power 

from which a system derives its moral or physical strength, freedom of action, and will to act.112 113 

Simply put: What allows the obstacle to ROL to be an obstacle? Conversely, what makes a beneficial 

state (e.g. local goodwill) remain beneficial? Obstacles will need to be eliminated and beneficial 

effects protected. A problem with rule of law operations in Afghanistan was that advocates for 

change were supported and encouraged, but not protected. As soon as the advocate gained traction or 

had positive effects, individuals benefitting from the absence of law would kill or otherwise silence 

(e.g. by kidnapping or killing family members of) the advocate. 

Assessment Fatigue and Coordination 

Many redeploying JAs have identified “assessment fatigue”— repeated assessments 

from different agencies or multiple levels of headquarters — as a major problem in 

conducting ROL operations. When different USG agencies ask for duplicative or 

similar information, it demonstrates to their HN counterparts that there is no single 

plan or coordinated ROL effort (which may be the case but is best not advertised). 

For example, local HN officials related to the USG (in the ROL arena, frequently a 

PRT ROL advisor or BJA), that multiple confusing assessments erode professional 

respect for, and personal trust, in the point of contact. Consequently, it is critical to 

coordinate assessments with all levels and agencies operating in the ROL arena and 

to the extent possible, to rely on information already collected; each new assessment 

imposes costs, seen and unseen, on the ROL program. Similarly, anyone deploying 

to a theater with an ongoing ROL program should familiarize him or herself with 

existing assessments before embarking on new ones. 

An important by-product of the assessment process is identifying information that is not known but is 

critical to decision-making. Oftentimes, information gained from assessments – which is critical to 

111 Id at para 3-26. 112 JP 5-0, supra note 17, at IV-8.
 113 For a narrative version of a justice center of gravity analysis, see ch. 9, sec. 1 

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decision-making – may ultimately become part of a Commander’s Critical Information Requirement 

(CCIR). 

Completed baseline assessments become a running estimate114 as the ROL situation develops. 

Developments result from both the product of, and independent of, the ROL the plan. As a running 

estimate, the assessment incorporates both metrics collected about the efficacy of actions taken under 

the ROL plan, and intelligence and open-source information regarding other events that bear on the 

ROL situation. 

1. The Starting Point 

A review of the rule of law definition from FM 3-07 – printed at the beginning of this section – 

reminds us that the ROL LOE extends beyond the common view of “cops, courts and corrections” 

and looks to whether the laws are equitable and fairly applied, via the separation of powers which 

generally involve the legislative branch, and the executive branch (likely a governor) beyond the 

police force, judges, and prison administrators. For instance, one common ROL obstacle is 

corruption, which most often occurs in procurement and extortion – not the legally required fees – for 

basic government services such as (among many other possibilities) driver’s licenses and deeds. 

Additionally, ROL will involve institutional and societal dynamics. Systems analysis can be used to 

understand the system of systems that compose the ROL environment.115 How do ROL actors in the 

area of operations link with the rest of society, government, and the economic system? 

The situation analysis also encompasses more concrete matters such as: the physical environment and 

infrastructure; the state of governance; technology; local resources; and the culture. For example, are 

the criminal courts trying insurgent cases, and if not, why not? If the clerks were given computers, 

would they know how to use them? Could they maintain them? Is the population choosing to use the 

government’s court systems to resolve its disputes, and if not, why not? Do the police have the 

confidence of the population, and if not, why not? 

The sheer number of considerations can be overwhelming. Unless time and resources are limitless, 

adopting an 80% solution that produces a plan, vice a 100% solution that never leaves the drawing 

board, will be the practitioner’s best bet - remembering, of course, that the drawing board does not 

need to start with a blank piece of paper. There are many resources that can help inform the contents 

of the assessment. 

2. Generic Assessment Questions 

Below is a list of questions generated from a conference on the ROL held at Georgetown 

Law Center in Washington, D.C.116 and during the 2009 Rule of Law Short Course held at 

TJAGLCS.117 What follows provides a starting point for an assessment. Because it was 

developed in 2009, during a time at which most military ROL deployments were to mature 

theaters, it heavily emphasizes gaining information on existing programs, which will not be 

the case for an initial deployment phase, such as OIF-1. 

114 See FM 5-0. 115 On the “systems perspective” and its place assessing the environment, see JP 5-0, supra note 17, at III-16 – 

III-19.
 116 The Fourth Annual Samuel Dash Conference on Human Rights: Rule of Law in the Context of Military 

Interventions, March 19-20, 2009. 

117 Suggestions for additions or deletions are welcome. Please email them to the Center for Law and Military 

Operations’ email addresses listed at the front of this Handbook. 

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a.	 Host Nation Rule of Law Structure 

•	 What is the nature of the formal legal system in place? 

•	 Is it a civil or a common law model? 

•	 To what degree are the ROL effects described in FM 3-07 present? 

•	 Where can English copies of the HN’s laws be obtained? 

•	 What does the current JA wish s/he would have brought with him/her; what resources are 

needed? 

•	 What is the governmental structure for ROL institutions in host nation (i.e., What HN agencies 

control which elements of the ROL)? 

•	 What contacts exist with and for the local legal system? 

•	 What is the role of traditional / informal dispute resolution systems? 

•	 Does the traditional system differ from the formal host nation legal structure and law? 

•	 Is there a local bar association / legal centers / legal clinics? 

•	 Who are the local officials with whom you meet? 

•	 What is the HN legal training infrastructure? Are there any law schools? 

•	 HN Criminal Justice 

•	 What is the capacity of the HN criminal justice system? 

•	 Is there a police force? What is the structure of the police force? Does the HN military have 

a role in law enforcement? Is there a secret police? 

•	 How do evidentiary rules differ from the U.S. model? How are hearings conducted? 

b. Plans 

•	 What is the higher headquarters plan? 

•	 Get the plan for the next two higher military headquarters (e.g., Joint Campaign Plan) and 

focus on the intent. 

•	 What is the host nation plan? (For example, consider the Afghan National Development 

Strategy). 

•	 What is the USG plan? (Focus on obtaining plans from interagency personnel to include 

DOS / USAID / DOJ). 

•	 Do the above referenced plans include ROL? 

•	 Is there a Rule of Law Annex? 

•	 Are there any specific FRAGOs that address or modify the base order or plan? 

•	 What are the foundation documents for the intervention? 

• What is the authority for U.S. military presence in the host nation? 

• Are there any applicable UNSCRs? 

• Are there any international agreements (e.g., SOFA)? 

•	 What are the significant planned events in the coming year? 

• What are the critical events in the USG plan? 

• Are there significant HN events that are not part of the plan (e.g., elections)? 

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c. Rule of Law and Detention 

•	 Who is operating detention facilities, U.S. or HN forces (or others)? 

•	 Are detainee facilities available to the U.S.? Where are they and what condition are they in? 

•	 Are there jails? Do they need to be expanded? 

•	 Under what authority are detentions being conducted? How can a copy be obtained? 

•	 Who is responsible for apprehending and detaining HN nationals? 

d. Projects 

•	 (Past) What ROL projects have units attempted or completed? 

• What plans were successful? 

• Why did projects fail? 

•	 (Current) What ROL projects are currently going on? 

• What is the status of the projects? 

• Who has the lead for each project? 

• What is the transition plan? 

• What is the estimated completion date for the project? 

• What are the next steps that need to be planned, funded, or executed to complete each 

project? 

•	 (Future) What projects are you planning? 

• What are the next steps in those plans? 

• What projects do you anticipate transitioning to my unit? 

•	 What are the fiscal authorities (to the extent they differ from the standard ones) used for 

ROL? 

• Are there any formats necessary to request a project? 

• What is the process for obtaining approval? 

e. Structure 

•	 What is the ROL coordination structure? 

• What is the structure among military units? 

• What is the relationship – horizontally – between military and civilian ROL practitioners? 

• What is the relationship – vertically (two HQ up) – between military and civilian ROL 

practitioners? 

• How does information flow along these channels? 

•	 Is there a PRT or ePRT in the area? 

•	 Do the ROL practitioners hold meetings? 

• What is the frequency of these meetings? 

• Where are these meeting held? 

• Who attends these meetings? 

• Is there a briefing responsibility for the JA? If so, what is the format for the briefing 

responsibility? 

•	 Who, practically, is calling the shots in ROL and how does that flow work? 

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•	 What information is regularly requested and collected from you and by whom? 

•	 What other USG agencies are currently in your sector doing ROL? 

•	 What other countries are in place, what is their mission? 

•	 What NGOs are in place? 

•	 What foreign government agencies are in place? 

•	 What IOs are in place? 

•	 What projects do these agencies have ongoing, and what contractors are the various agencies 

using to identify them with the agency? 

• USAID	 • FBI 

• INL • U.S. Embassy 

• DOJ/ICITAP	 • NGOs 

• DOJ/OPDAT	 • IOs 

• DEA	 • USIP 

• U.S. Marshals	 • UN 

• ATF 

f. Rule of Law POCs 

•	 name / email / location / agency /phone numbers 

•	 Collect the above information for all of the agencies listed above under the structure 

questions. 

•	 Is there a HN lawyer or Bilingual Bicultural Advisor (BBA) associated with your unit? 

•	 Who is the Contracting Officer at the higher headquarters? 

g. Current assessment 

•	 Obtain a copy of the current ROL assessment. 

•	 What are the metrics currently being used for ROL? 

•	 Are the metrics effective? 

Some sources outside home organizations that can be consulted in answering many questions about 

the culture, society, and laws of many nations and the law applicable to U.S. operations in many 

countries: 

•	 Center for Law and Military Operations 

•	 International and Operational Law Dept., TJAGLCS 

•	 International and Operational Law Division, OTJAG 

•	 CIA World Factbook 

•	 DOS country desks 

•	 USAID website 

•	 Subject-matter experts at universities, USMA, TJAGLCS, etc. 

•	 Law libraries with international collections 

•	 Comparative law review articles 

•	 U.S. Embassy FAO 

3.	 Area Focused Assessment Questions 

What follows is a menu of assessment issues suggested by USAID that focus on the highpriority areas of security, legitimacy, impartiality, and efficacy (including access). Each 

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focus area is sub-divided into legal framework, institutional framework, and effects oriented 

questions. Although not suited to every situation, this list of questions should assist the JA 

ROL planner in assessing those parts of a host nation legal system that are most relevant to 

the desired end state. Such an approach may also help in placing a realistic scope upon the 

breadth of an assessment. 

a. Security 

•	 Legal Framework 

•	 Is a cease-fire or peace accord working? 

•	 Are the constitution or other basic laws in effect? 

•	 Is society under martial law or other exceptional law (e.g., laws of foreign occupation, UN 

Security Council Resolution)? 

•	 If constitutional order is effective, how effective are the criminal code and criminal procedure 

code? 

•	 Do police and prosecutors have sufficient legal authority to investigate and prosecute crime, 

including complex cases such as organized crime, drug and human trafficking, and financial 

crimes? Is there a modern criminal code that conforms to international standards and 

provides a sufficient basis for dealing with most types of crime? 

•	 Institutional Framework 

•	 Is there an effective police force? 

•	 Are the missions or mandates of the police forces codified or mandated in statutory law? 

•	 What is the role of the military in internal security and how is it distinguished from that of the 

police, and from paramilitary forces? 

•	 What are the rules and procedures of triggering a military response to internal security crisis? 

How do the military and other elements of the security system cooperate in such situations? 

•	 Are there prosecutors? 

•	 Are courts open and are there judges? 

•	 Are prisons operating? 

•	 Are the security sector employees getting paid a wage adequate to live on (to avoid resort to 

corruption)? 

•	 Are the different security sector agencies interoperable? What agencies are essential to the 

justice system and what is the best method to ensure coordination and synchronization? 

•	 Are charges brought only when there is adequate evidence of the commission of a crime? 

Are a large number of cases dismissed for lack of adequate evidence or because of unfounded 

or incorrect charges? 

•	 Effects-Oriented Assessment 

•	 Are citizens or foreigners safe? Are crime rates rising, remaining the same, or declining? 

•	 Do police cooperate well with prosecutors and the courts in the gathering of evidence and 

prosecution of criminal cases? 

•	 Do police control crime or contribute to crime? Do citizens trust and actively assist police in 

solving crime? Do citizens engage in vigilantism of any kind? 

•	 Do prosecutors try cases effectively in practice? Do prosecutors have the knowledge and 

skills required to present criminal cases effectively and properly? 

•	 Are prisoners regularly subjected to inhuman conditions or abuse? Are prisoners regularly 

released because prisons are incapable of housing them? 

•	 Are judges, lawyers, police, or prison officials being targeted or intimidated? 

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•	 Are there armed groups that harm and intimidate citizens with seeming impunity? 

b. Legitimacy 

•	 Legal Framework 

•	 What is the source of law? What is its history? What groups in society wrote the laws? 

•	 What is the legal basis for maintaining order? Is there a criminal code that conforms to 

international standards and provides a sufficient basis for dealing with most types of crime? 

•	 Are there statutory penalties or punishments for discriminatory or abusive police conduct? 

•	 Do the constitution and laws of the country provide that the judiciary is an independent 

branch of government? Does the legal framework guarantee judicial and prosecutorial 

independence, impartiality, and accountability? 

•	 Are there legally recognized and binding codes of conduct in effect for judges, prosecutors, 

and lawyers? 

•	 Are armed forces held legally accountable for their actions when performing law enforcement 

or public safety functions? 

•	 How are the laws viewed today by different social groups? Are any laws resisted? 

•	 How long has the constitution been in effect? How often has it been amended? Have 

amendments been made by a process which includes a genuine opportunity for public 

participation and decision-making? 

•	 Institutional Framework 

•	 How long have the key institutions been in place? How are they viewed by the public? By 

different social groups? 

•	 Which institutions command respect, disrespect, or fear? How do they rate against other 

institutions in the state or society? Is law respected by elites? Do elites suffer if they break 

the law? 

•	 Effects-Oriented Assessment 

•	 Do prosecutors prosecute or not prosecute individuals or organizations for political, social, 

corrupt, or other illegitimate reasons (or are they perceived as acting in this way)? Do they 

consistently fail to act to protect certain persons or groups from rights violations? 

•	 Do police and other bodies performing law enforcement/public order functions consistently 

act within the law? Do police routinely violate human rights with relative impunity? 

•	 Do courts routinely accept and consider illegally obtained evidence (coerced confessions or 

items obtained as the result of illegal searches)? 

•	 Are armed forces held legally accountable for their actions when performing law enforcement 

or public safety functions? 

•	 Do substantial portions of the population conduct activities outside of the formal legal 

system? 

•	 Do portions of the population resort to self-help (such as shootings, lynching, or other 

violence) to protect their property or personal rights or to punish transgressors? 

•	 Are historical or ethnic enmities present that could threaten civic cooperation? 

•	 What role do customary, religious, or community institutions play in practice in the justice 

sector? Are they regarded as more legitimate and credible than institutions of the state? 

•	 What is the place of customary or religious law? Is it recognized as part of the country’s 

laws, or is its status unclear? Does it conflict with laws that are part of the formally adopted 

legal system? 

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c. Impartiality 

•	 Legal Framework 

•	 Do the laws relating to the structure and operations of the judiciary place the principal control 

over most judicial operations in the hands of the judiciary itself? 

•	 Is there a law on freedom of information held by government agencies? 

•	 Do existing laws provide for appropriate external and internal oversight mechanisms for 

reviewing and acting upon complaints of police brutality or other misconduct? 

•	 Are there legally recognized and binding codes of conduct in effect for judges, prosecutors, 

and lawyers? 

•	 Institutional Framework 

•	 Do the constitution and laws of the country provide that the judiciary is an independent 

branch of government? 

•	 Are judicial disciplinary and removal decisions made by a body and process that is not under 

the exclusive control of the executive and legislature? Are disciplinary/removal decisions 

subject to judicial review? 

•	 Does the selection system for judges and prosecutors limit the ability of the executive and the 

legislature to make appointments based primarily on political considerations? 

•	 Are judges entitled to security of tenure? 

•	 Once appointed, can judges be removed for non-feasance or malfeasance in the performance 

of their duties? 

•	 Are there internal or external (civilian) boards that review police conduct? Do these bodies 

aggressively review and act upon complaints of misconduct? Are there mechanisms to 

ensure that ethical codes for judges and prosecutors are effectively enforced? 

•	 Does civil society scrutinize the justice system? Does the media? What is the role of the 

bar? 

•	 Effects-Oriented Assessment 

•	 Do the courts and other elements of the justice system enforce law in a way which favors 

certain persons or groups over others? 

•	 Can citizens bring suit and obtain relief against the state? Against powerful interests? 

•	 Do the actions of the courts reflect a heavy bias in favor of the government’s position in 

almost all cases that come before them (whether civil, criminal, or administrative)? 

•	 Is the independence of the judiciary respected in practice? Do high ranking government 

officials frequently and strongly criticize the courts, judges, or their decisions? 

•	 To what extent do judges or prosecutors leave their positions before the end of their terms? 

Why? 

•	 Do influential officials engage in “telephone justice”? Under what circumstances? 

•	 Are police held accountable to civilians? How? 

•	 Are judges and prosecutors harassed, intimidated, or attacked? Are courthouses secure? 

•	 Does the body that disciplines and removes judges and prosecutors act fairly, openly, and 

impartially? Are its decisions based solely on the criteria established by law for discipline 

and removal? Does it aggressively investigate complaints of misconduct, malfeasance, and 

non-feasance and resolve them in a timely manner? 

•	 Are all parties treated the same in the courtroom? Do judges and other parties act with 

decorum and with respect for all parties? 

•	 Are judges’ rulings consistent regardless of the status of the parties before the court? 

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d. Efficiency and Access 

Legal Framework 

•	 Does the criminal law provide for periodic review of the decision to keep an individual in 

pre-trial detention by someone other than the prosecutor or police and in accordance with 

internationally accepted standards? 

•	 Does the criminal procedure code provide for a right to a speedy and public trial before an 

impartial judge, notice of all charges, right to review the prosecution’s evidence and cross 

examine witnesses, right to present evidence and witnesses in defense, right to legal 

representation, a presumption of innocence, and a right against self-incrimination? 

•	 Does the country’s civil procedure code provide that parties to civil proceedings have a right 

to proper and timely notice of all court proceedings, a fair opportunity to present evidence 

and arguments in support of their case, review evidence and cross-examine witnesses, have 

their case decided within a reasonable period of time, and appeal adverse judgments? 

•	 Do existing laws provide sufficient authority to judges to ensure that criminal and civil 

procedures are followed? 

•	 Are prescribed procedures overly complex and unnecessarily time-consuming? 

•	 Can courts issue injunctions against executive/legislative actions? Actions of private 

interests? 

•	 Institutional Framework 

•	 What mechanisms are in place for defense of indigents accused of crimes (such as public 

defenders service or court-appointed counsel)? Does the mechanism used provide, in 

practice, competent legal counsel for indigent criminally accused? 

•	 Is there a separate juvenile justice system? 

•	 Are there victim and witness support units within police stations? Do they include the 

presence of female officers? 

•	 Effects-Oriented Assessment 

•	 Are civil and criminal procedures, as set forth in the codes, consistently followed in practice? 

•	 Do judges consistently respect the procedural rights of all parties and sanction those 

participants (lawyers, prosecutors, witnesses, and parties) who violate the rules? 

•	 Are judges’ decisions well-reasoned, supported by the evidence presented, and consistent 

with all applicable law? In cases in which judges have discretion in the enforcement of trial 

procedures, do they exercise that discretion reasonably and in a way that encourages the fair 

and expeditious resolution of cases? 

•	 Do most segments of society understand their legal rights and the role of the legal system in 

protecting them? Do they understand how the courts work and how to access them 

effectively? 

•	 Do lawyers have the knowledge and skills necessary to advise parties competently and 

advocate their interests in court? 

•	 In practice, are civil judgments enforced in an effective and timely manner? 

•	 Do women use the justice system, and what are the results? 

•	 Where do poor people go to obtain justice? Other social groups and classes? Is free or 

affordable legal advice available to medium- or low-income groups on civil matters (such as 

family, contract, or property law)? 

•	 Are most citizens represented by legal counsel when they go into court, or do many represent 

themselves in court (pro se representation)? Do the courts provide assistance of any kind to 

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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? 

4. An Assessment Matrix Approach 

An alternative ROL assessment framework, which may be of particular use in an 

anticorruption ROL program, is that offered by the World Governance Assessment (WGA) 

Matrix.118 

Principle →

Arena ↓

Participation Fairness Decency Accountability Transparency Efficiency 

Civil Society Freedom of Society free Freedom of Respect for Freedom of the Input in 

Association from expression governing rules media policy 

discrimination making 

Political Legislature Policy reflects Peaceful Legislators Transparency of Efficiency of 

Society representative public competition accountable to political parties legislative 

of society preferences for political public function 

power 

Government Intragovernmental 

consultation 

Adequate 

standard of 

living 

Personal 

security of 

citizens 

Security forces 

subordinated to 

civilian 

Government 

provides 

accurate 

Efficiency of 

executive 

branch 

government information 

Bureaucracy Civil servants 

shape policy 

Equal 

opportunities 

to public 

services 

Civil 

servants 

respectful 

toward 

Civil servants 

accountable 

Civil service 

decision making 

transparent 

Merit-based 

system for 

recruitment 

citizens 

Economic Private sector Regulations Governmen Regulating private Transparent Interventions 

Society consulted on applied ts respect sector to protect international free from 

policy equally private workers trade policy corruption 

property 

Judiciary Non-formal 

processes of 

conflict 

resolution 

Equal access 

to justice for 

all citizens 

Human 

rights 

incorporate 

in national 

Judicial officers 

held accountable 

Clarity in 

administering 

justice 

Efficiency of 

the judicial 

system 

practice 

An optimal assessment might require that all 36 measures would be mapped against each level of host 

nation government—national, regional, provincial, and district (as appropriate in any one host 

nation), and possibly beyond, down to, for instance, the village level. Armed with this detailed 

information, it becomes possible to make informed judgments on larger, and perhaps systemic, issues 

facing anticorruption programs: transparency (public visibility through press, IA/IG departments, 

professional organizations, and monitors); professionalization (training and pride to offset “everybody 

else is doing it” ethic), and resourcing (pay sufficient to prevent poverty of honest officials and 

“excusable” corruption). 

118 World Governance Assessment, Indicators for Assessing Governance, available at 

http://www.odi.org.uk/work/projects/00-07-world-governance-assessment/Indicators.html 

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5. Other Underpinning Issues 

a. Assess the History and Traditions of the Legal System 

One critical but often overlooked 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.119 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.120 Accordingly, one might look to French legal reforms as a model 

for progress toward the ROL in a former French colony, as opposed to relying upon the British/U.S. 

common law tradition. 

Beyond, or more likely in parallel with, the formal judicial system, circumstance dependent, you may 

also need to assess the role and effectiveness of any existing customary justice system (tribal, 

religious, or other). Should this be relevant, evaluate the extent to which the formal and customary 

judicial systems interact. The formal system may be viewed as slow, uncertain, expensive, and 

corrupt. The informal system – which historically may have delivered a significant element of a 

society’s dispute resolution functions – may be broken or suffer from its own inherent problems. The 

goal may be to develop both systems, linking them where appropriate to enhance their overall 

efficacy and legitimacy. Often, one of the programmatic challenges in dealing with a customary 

justice system relates to how it can be developed to meet minimum human rights standards. In the 

planning domain, the challenge is more likely to be in understanding the complexity of the system, 

and its interaction, if any, with the formal system. And having done so, designing meaningful, and 

operationally significant, measurements to record its effect and performance over time.121 

b. Understand the Roles of Major Players and Political Will 

This step develops information on the roles, resources, and interests of leaders and others whose 

support is necessary for ROL reforms. Those working within justice sector institutions, the rank and 

file, as well as the leadership, will always be important actors. These individuals can either support a 

reform program or sabotage it. Understand positive and negative influences, such as: 

• Where do their loyalties lay (tribal, ethnic, religious, bureaucratic, financial)? 

• Where do their obligations lay (tribal, ethnic, religious, bureaucratic affiliations, financial)? 

119 The Latin American civil law tradition features a strong investigative judge and a weak prosecutor; by 

contrast, under communist legal systems, the prosecutor 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. 

120 USAID, GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE RULE OF LAW STRATEGIC FRAMEWORK 12 

(2008). 

121 See generally Thomas Barfield, Neamat Nojumi, and J. Alexander Their, The Clash of Two Goods: State 

and Non-State Dispute Resolution in Afghanistan, United States Institute of Peace (2008). This report is 

considered one of the most comprehensive single sources for all the factors which must be considered in 

analyzing, comparing, and harmonizing a Host Nation’s formal and informal judicial systems. It has now been 

incorporated into CUSTOMARY JUSTICE AND THE RULE OF LAW IN WAR TORN SOCIETIES, (Deborah Isser ed., 

United States Institute of Peace, 2011). Among other issues covered, this study offers an analytical framework 

for assessing customary justice systems that can be applied to any country. 

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•	 What influences opposed to establishing the ROL exist (corruption, poverty, foreign influences, 

crime, fear, insurgency, lack of education)? 

Do not assume away a conflict of interest. Regardless of how polite and accommodating an official is 

in your presence, their ability to undermine ROL efforts in your absence should not be 

underestimated. During pre-deployment, the ability to gather detailed information about important, 

but lower level players within the foreign nation’s bureaucracy may be limited, especially if the 

mission is a non-permissive initial entry. However, as a theater becomes more mature and follow-on 

rotations begin, coordination with predecessor units will provide this information. 

Major players also exist outside the government bureaucracy. These include tribal and religious 

leaders, academics (take particular note of any local law schools), businesses (which, when 

legitimate, generally see greater profit in secure environments), unions or associations (e.g. a bar 

association), the media, NGO and IO staffers, and neighboring foreign officials with an interest in the 

progress toward ROL of their neighbor. It is virtually inevitable that the quality of specific 

information available to the ROL planner will increase with arrival in the area of operations. 

Accordingly, more suggestions concerning the players – including those within an assessment – 

continues in the initial deployment phase below. The importance of the pre-deployment assessment is 

that it enables the subsequent, more detailed information gained in-country to be placed into a broader 

context and lessens the time involved in assimilating that information into a usable resource once the 

unit hits the ground. 

c. Identify Who the Players Are 

Verify who is in place. The most ambitious plans for reform can be undermined by the simple fact 

that the host nation personnel needed to perform the tasks are not available due to pre-war 

understaffing, casualties, or refugee movements. 

Engage Host Nation Judicial Hierarchy 

Initial site visits should focus on identifying and meeting key judicial personnel and 

conducting a visual assessment of the physical structure. When meeting with the 

local judicial officials, try to understand the organizational structure of the court. 

Initial visits can explore the hierarchy of judges, the supervision of lower court 

chambers, the appellate process, and the administrative functions of the court such as 

the scheduling of cases and the management of court records and dockets. 

Follow on efforts should be coordinated to the extent possible with the chief or senior 

judge of the court to demonstrate proper respect for the office (in the event the judge 

is not an obstacle to progress who gains more local credibility from the deference you 

give him). 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 for fear of their superiors. 

d. What are the Capabilities and Needs on the Ground? 

An initial assessment should also reveal what capabilities and tools are available within the host 

nation to conduct justice sector operations and reform. Such an assessment should reveal: 

•	 The number and physical capacity of courts, law enforcement & detention facilities—by number, 

location (grid), and an assessment of structural condition. 

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•	 The status of supplies and equipment, if any, such as: 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 ROL operation is not necessarily a positive or relevant factor to the ROL mission. Donor 

nations and organizations often want to contribute what they have, rather than what the distressed 

country actually needs. 

The JA conducting a physical assessment must rely upon his own judgment and expertise, as well the 

requests for assistance from host nation officials. 

e. Funding 

To a greater or lesser degree, all formal, and some informal, ROL systems require funding; whether to 

pay staff and judges, to maintain or replace needed infrastructure and equipment, to fund education 

and training or deliver public awareness and information programs. Furthermore, the cost of the 

assessment, and metrics / monitoring and evaluation aspect of the ROL program must not be 

forgotten. The ROL JA must become familiar with the host nation and external funding systems and 

constraints in order to ensure that current and future requirements are identified and planned for. 

That, in turn will help evaluate the viability and sustainability of the program design. 

Payroll and Rule of Law 

A common practice among police chiefs in Afghanistan is to pad the payroll with 

the names of officers who do not exist, or friends who appear only to collect a 

paycheck and for head-counts used by coalition forces. Such leadership often 

gained further income by either skimming from each officer’s salary, or by 

requiring them to kick-back a portion of their pay after receipt (in instances 

where the distribution of pay had been monitored to prevent prior skimming). 

f. Assess the status of Trial (criminal, civil judgments), Property, and Vital 

(marriage, divorce, births, and citizenship) Records 

In the period following the cessation of the ROL caused by natural disaster or war, local citizens may 

need to reestablish their entitlement to certain social benefits or possession of property. Where a civil 

war or sectarian violence has occurred or there has been the presence of hostile foreign troops in the 

country, the ability for an individual to prove that he has legal status to be in a nation can be a matter 

of life and death. Locating and securing legal records proving status and property rights should be a 

major initial priority of the initial deployment assessment. 

In looking for a potential “quick win” in terms of reforming a justice sector organization, bringing 

simple organization principles to record keeping can be a significant improvement. For example, 

when a court institutes a transparent case tracking system, it becomes very difficult to alter or steal 

case files, a relatively common method of changing the outcome of cases in many courts systems. 

g. Juvenile Justice 

Children, and especially orphans, are particularly vulnerable following a period of unrest. Assess the 

juvenile justice system as well as the adult system. The United Nations’ Children’s Fund (UNICEF) 

has developed training and monitoring tools for juvenile justice systems. 

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6.	 Additional Assessment Guidance 

For additional guidance on assessments, the Office of the United Nations High 

Commissioner for Human Rights has put together a very detailed and useful manual, titled 

Rule-of Law-Tools for Post-Conflict States, Mapping the Justice Sector (2006).122 

V. Beginning the Running Estimate: Metrics 

In addition to his two question ROL snapshot assessment proposal, Dr Kilcullen offers three key 

pieces of cautionary guidance which the JA would be wise to consider when designing rule of law 

metrics: 

•	 Organizations manage what they measure, and they measure what their leaders tell them to report 

123 on.

•	 It is essential to maintain a common set of core metrics, as well as to maintain a consistent 

methodology, so that second-order effects and trends can be analyzed over time.124 

•	 Interpretation of indicators is critically important and requires informed expert judgment. It is not 

enough merely to count incidents or conduct quantitative analysis—interpretation is a qualitative 

activity based on familiarity with the environment, and it needs to be conducted by experienced 

personnel who have worked in that environment for long enough to detect trends by comparison 

with previous conditions.125 

Assessment is critical to reaching objectives efficiently, yet crafting effective metrics is difficult, as is 

finding resources to actually collect them. Despite the critical role of assessment, few units will be 

willing to dedicate resources to a significant collection effort. Seek out other parties who may already 

be collecting the information you or your HHQ need.126 For example, in Iraq the High Judicial 

Council (HJC) receives reports from many of the lower courts that contain statistics useful for 

assessment.127 However, JAs should ensure they understand the nature of what is being provided 

(e.g. does "prison releases" include prisoners being transferred to a different holding facility).128 

In general, “metrics” are criteria that measure achievement of goals and performance of tasks. 

Metrics answer two questions in regard to actions taken pursuant to the rule of law plan: 

•	 Have we selected the correct objectives (or “are we doing the right things)? and 

•	 Are we pursuing those objectives effectively (or “are we doing things right”)? 

Metrics related to pursuing goals effectively are Measures of Performance (MOPs), while those 

related to selecting the correct goals to achieve are called Measures of Effectiveness (MOEs). The 

MOPs intends to determine if you completed the task you set out to do (e.g. train judges, restore court 

houses) and so may be very quantitative in nature, while the MOEs seek to determine if completing 

those actions had the expected effects (e.g. having trained the judges and restored the court houses, 

has the number of cases heard per time period increased to the desired level), and so may rely more 

on qualitative assessment than quantitative measurement. 

122 Available at: http://www1.umn.edu/humanrts/monitoring/Ruleoflaw-Monitoring.pdf (last viewed June 13, 

2011). 

123 Kilcullen, supra note 103 at 1.
 124 Kilcullen, supra note 103 at 2. 125 Kilcullen, supra note 103 at 5.
 126 MNF-I Individual Augmentee IZ AAR, OCT 08 – DEC 08, supra note 63. 127 XVIII ABC 2009 OIF AAR supra note 47. 128 Director IROCC IZ AAR, JUN 08 – JUN 09, supra note 83. 

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Does Your Metric Really Measure Progress? 

“Money spent” is NOT a measurement of progress. Resist pressure (though it may 

be heavy) to spend reconstruction funds on projects that are not linked to objectives, 

or where the cost outweighs the value.129 Likewise, "items purchased" is an 

inadequate metric when it does not ask qualitative questions. Giving computers to a 

courthouse may indicate success in terms of performance (task completion), but it 

fails to measure effectiveness. Qualitative assessment should identify whether a plan 

to train local nationals to use, sustain, and maintain the item is in place (computers 

are always useless to the illiterate, and useless to everyone once they break down).130 

Metrics will apply to both single, milestone-type objectives (such as establish a reliable means for 

local police to obtain warrants from the Central Criminal Court) and to more enduring objectives 

(raise docket throughput to match the rate of arrests). In both cases there may be multiple criteria that 

define the desired effect of the objective. With increasing docket throughput, for example, the ROL 

team will want to measure not just cases tried, but also violations of due process, and the percentage 

of cases dismissed for various reasons, among other things, in order to determine if the desired effects 

are being achieved. 

The importance of choosing the correct metrics cannot be overstated. Once put in place, the ROL 

program will “work to the metric,” managing what they measure, so an incorrect metric will 

hopelessly derail progress toward the intended effect. Consequently, metrics should be carefully 

designed to serve the longer-term outcomes—not to demonstrate short-term success. Furthermore, all 

metrics are based on an assumption—stated or implicit—that there is a connection between what is 

being measured and the desired outcome. Since these assumptions may prove to be incorrect, the 

development of metrics should not be seen as a one-time event; rather, the metrics themselves should 

be evaluated periodically to ensure their validity and utility. 

Long-term progress is furthered by designing metrics in coordination with host nation counterparts. 

This gives them understanding and ownership of the process, which can provide near-term 

enthusiasm (or at least tolerance) for the ROL goals, and in the long term will allow them to continue 

programs with the same focus as you both have coordinated in designing them. There is danger in 

that, knowing the specific metrics, the officials will doctor the data flow to create artificial results. 

However, that is a danger regardless, as little data can be collected without officials being aware of 

what is being tracked. 

129 1st Cavalry Division, Staff Judge Advocate Iraq After Action Report, Multi-National Division – 

Baghdad/Multi-National Division – Center, Camp Liberty, Iraq, January 2009 – January 2010, (1 April 2010) 

[hereinafter 1CD IZ AAR, JAN 09 – JAN 10; on file with CLAMO].

130 2d Heavy Brigade Combat Team, 1st Infantry Division, Brigade Judge Advocate Iraq After Action Report, 

Camp Liberty, Iraq, October 2008 – September 2009, (24 November 2009) [hereinafter 2HBCT, 1ID IZ AAR, 

OCT 08 – SEP 09; on file with CLAMO].
 

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Measures of Performance 

Prior to the Battle of Marjeh in Afghanistan, a hasty mapping of detainee-handling 

revealed disturbing trends: the conviction rate for Coalition-captured detainees was 

30-40%, and the conviction rate for Afghan-captured detainees was 3-4%. The 

largest “leak” in the system was not the National Directorate of Security (NDS) 

intelligence officers or the Attorney General’s Office (AGO) prosecutors (although 

their lack of training and resources slowed their work), but rather it was the judges 

who ordered the release of a large number of detainees. Some of this was due to poor 

evidence collection on the battlefield, and some was due to the pressure of legislators, 

forcefully advocating for the release of detainees with powerful, and possibly 

dangerous, patrons in their home districts. While this problem was not easily solved, 

effective metrics helped determine that it was not driven primarily by resources or 

training, and coalition authorities were able to bring influence to bear where it most 

mattered. 

A. Developing Metrics 

Use various data sources to develop metrics. If feasible, include public surveys, expert surveys, 

administrative data, etc, as doing so allows for rule of law initiatives to be measured from diverse 

perspectives.131 The Vera Institute for Justice offers a number of different methods that are 

traditionally used in developing metrics: 

•	 Proportions and Rates (e.g., changes in the rate of homicides per month) 

•	 Ranks (e.g., asking residents of a town to rank the biggest problems in their community) 

•	 Dichotomous indicators (non-numerical indicators identifying whether an institution, policy, 

function, or law exists; e.g., recognition of domestic violence as a crime) 

•	 Indices (multiple indicators combined into single measures, where each measure is assigned an 

individual weight based on the weight of its association to the concept the index represents)132 

To prevent skewed results, indicators can be grouped into “baskets” which in turn generate a more 

nuanced assessment of progress. This method makes it more likely that biases will be canceled out 

and will help compensate for limitations in any one source of data.133 An excellent description of this 

technique can be found in the United Nations Rule of Law Implementation Guide, of which there is 

an example below:134 

131 Id. at 14-15; see also U.N. Dep’t of Peacekeeping Operations [DPKO] and Office of the U.N. High Comm’r 

for Human Rights [OHCHR], The United Nations Rule of Law Indicators Implementation Guide and Project 

Tools, at 1 (2011) [hereinafter U.N. ROL Indicators]. 132 Measuring Progress toward Safety and Justice: A Global Guide to the Design of Performance Indicators 

across the Justice Sector (Vera Inst. of Justice), Nov. 2003, at 11 [hereinafter Measuring Progress toward 

Safety and Justice]. 133 DFID Metrics Practice Paper, supra note 105, at 11; U.N ROL Indicators, supra note 131, at 3. 134 U.N. ROL Indicators, supra note 131, at 4.
 

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Performance Effectiveness & efficiency 

Public confidence Integrity, 

transparency, and 

accountability Police 

Integrity and accountability 

Treatment of 

vulnerable groups Transparency 

Material resources 

Capacity 

Human resources 

Administrative and management 

In the above example, the institution being measured is the police. Four dimensions radiate out from 

it: performance; integrity, transparency, and accountability; treatment of vulnerable groups; and 

capacity. Each dimension in turn consists of “baskets” of indicators that measure performance.135 

This approach could also be applied to various ROL component “conditions”, as opposed to 

component “institutions.” The USIP and the U.S. Army Peacekeeping and Stability Operations 

Institute jointly published Guiding Principles for Stabilization and Reconstruction which describes 

five such conditions for the growth of rule of law in a society: just legal frameworks, public order, 

accountability to the law, access to justice, and a culture of lawfulness. The guide’s definitions of 

each are useful in scoping the appropriate metrics for each area, ensuring that no critical process is 

left unaddressed. 136 137 

In essence, a “basket” type of structure, by drawing information from a variety of data sources, allows 

for a more comprehensive framework from which to monitor progress. However, it is also essential 

135 Id. at 4-5;
 136 UNITED STATES INSTITUTE OF PEACE AND UNITED STATES ARMY PEACEKEEPING AND STABILITY
 

OPERATIONS INSTITUTE, GUIDING PRINCIPLES FOR STABILIZATION AND RECONSTRUCTION (2009). 137 The five necessary conditions are defined below:
 

Just Legal Frameworks is a condition in which laws are consistent with international human rights norms 

and standards; are legally certain and transparent; are drafted with procedural transparency; are equitable, 

and are responsive to the entire population, not just powerful elites. 

Public Order is a condition in which laws are enforced equitably; the lives, property, freedoms, and rights 

of individuals are protected; criminal and politically motivated violence has been reduced to a minimum; 

and criminal elements (from looters and rioters to leaders of organized crime networks) are pursued, 

arrested, and detained. 

Accountability to the Law is a condition in which the population, public officials, and perpetrators of past 

conflict-related crimes are held legally accountable for their actions; the judiciary is independent and free 

from political influence; and horizontal and vertical accountability mechanisms exist to prevent the abuse 

of power.
 

Access to Justice is a condition in which people are able to seek and obtain a remedy for grievances through
 

formal or informal institutions of justice that conform with international human rights standards, and a 

system exists to ensure equal and effective application of the law, procedural fairness, and transparency.
 

Culture of Lawfulness is a condition in which the general population follows the law and seeks to access
 

the justice system to address its grievances. 

Id. at 7-65. 

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that the “baskets” be balanced in terms of the criteria the indicators are evaluating. This means 

assessing the reasons why a particular indicator might go up or down, and then choosing other 

indicators that would help resolve this ambiguity.138 An unbalanced basket results in the same danger 

of manifesting skewed results.139 

An important factor to consider when developing metrics is whether they can accurately reflect 

changes throughout short periods of time (i.e., a month, quarter, or year).140 This requires a certain 

level of sensitivity that would make any developments clear during those time periods.141 Doing this 

allows for growth to be tracked with some consistency and would make apparent what areas require 

improvement. 

Another concern is that results will only reflect the experience and viewpoint of the dominant group. 

Disaggregating the data into groups, for example by income, gender, age or region, would provide the 

ability to see the discrepancies in progress, if any, that exist across different groups.142 

1.	 Initial Assessment Metrics 

Metrics in the initial deployment stage frequently focus upon facilities and personnel. The 

newly arriving JA needs to understand that capabilities and resources will be required before 

meaningful planning and assessment can occur. Although each circumstance will vary, 

elements to be taken account of include: 

a.	 Courts and Judiciary: 

•	 Number of courthouses that are structurally capable of operation, in relation to how many are 

needed to handle the jurisdiction’s case load 

•	 Number of trained, available judicial and law enforcement personnel, in relation to how many are 

needed to handle the population and area of the jurisdiction 

•	 Availability of utilities necessary to operate facilities 

•	 The amount of funding needed for labor and materials to repair buildings 

b. Police and Jails 

The ROL planner should have a solid understanding of the ability of the local system to detain those 

persons arrested for criminal misconduct, to include both short-term and long-term circumstances. 

The metrics for this area include: 

•	 The number and geographic distribution of confinement facilities 

•	 A numerical breakdown of bed capacity in maximum and medium security long-term facilities, as 

well as local short-term detention space 

•	 The number and nature of currently detained/imprisoned persons 

•	 The rate at which newly detained/arrested personnel are growing versus capacity 

138 Measuring Progress toward Safety and Justice, supra note 132, at 15.
 139 Id. at 5. 140 Id. at 12. 141 Id. 142 Id. 

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Physical Security and Police Institutions in the Wake of Major Combat 

During OIF-1 there was a period of 4-8 weeks during which the number of persons 

being arrested overwhelmed the capacity of the available facilities to hold them. Petty 

thieves and non-violent looters had to be released back into the population in order to 

create detention capacity for violent offenders. Awareness of detention metrics 

impacts all justice assessments and planning. 

In addition, metrics should permit an assessment of the capabilities (and adequacy) of the local law 

enforcement entities. Given their expertise in the field, military police should take an active role in 

both designing and measuring these metrics. 

c. 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. 

d. 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 JAs 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. 

e. 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 about 

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. 

f. 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. 

g. Beware of Stale Metrics 

As the mission evolves, counting things like the number of court cases becomes less relevant for ROL 

assessment. For instance, nearly as important as the number of cases being adjudicated is the quality 

and due process 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. 

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Additionally, parties who must wait years to present civil disputes to any level of court may not feel 

the benefit of the ROL and turn instead to resolving disputes through private and coercive means. As 

the legal system begins basic function, ROL practitioners should adjust their metrics to account for 

the changed environment. Eventually, metrics will have to evolve beyond a purely quantitative, 

institutional focus to a qualitative one emphasizing the effects that the legal system is having on the 

populace. 

2.	 Long-term Metrics 

a. Effects-Oriented Metrics 

Metrics related to long-term effects become more complex than those for initial short-term goals. 

The metrics during sustained operations seek in many instances to capture intangibles, such as the 

attitudes of the population toward their government, as well as the efficacy and legitimacy of the 

system. 

Again, because the specific metrics to be used will be situation and mission specific, this list of 

metrics is focused on the justice system and meant only to prompt thought. Also, as noted above, 

ROL is broader than "cops, courts and corrections." so other metrics will definitely need to be 

developed. These are merely a guide for development of mission-appropriate metrics. 

•	 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 pre-conflict 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 ROL progress is lagging in certain parts of the country. 

•	 Serious crime statistics. The number of occurrences and whether people report such crimes to the 

police may reflect trust or mistrust of the police. A generally recognized high incidence of crime 

with a low reporting record may reflect that the population does not trust the police and would 

rather endure the crime than place themselves within reach of law enforcement personnel. 

The Aftermath of Extensive Police Corruption in Iraq 

After the fall of the Baathist regime in Iraq, many citizens related they had not 

reported crimes to the police under Saddam’s rule because the police would not leave 

their station house to investigate unless they were promised money or a cut of the 

recovery if they reclaimed the stolen property. 

•	 Formal or informal surveys pertaining to level of public trust in the police and the judiciary. Such 

surveys can be coordinated to occur contemporaneously with public education forums concerning 

the justice system. 

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•	 The number of personnel assigned to police internal affairs offices, the number of filed, pending, 

and completed investigations, and outcome statistics. As with criminal trial statistics, 

disproportionately high findings of either misconduct or no basis may reflect that the oversight 

agency itself is subject to bribery and corruption. 

•	 The existence of judicial/legal training centers that provide ongoing instruction in concepts of the 

ROL is one metric to gauge the evolution of legal thought in a country. Perhaps more important 

is measuring the number of personnel from around the concerned nation who receive instruction 

through such institutions. If training is limited to a few favored elite, the existence of such 

institutions is not as meaningful as if it is available to all judges, prosecutors, and other key legal 

personnel. 

•	 Public information/outreach. Public forums and education programs provide another opportunity 

to gauge the extent to which the local population views themselves as having a role in their legal 

system by monitoring attendance and the number and nature of inquiries that follow the program. 

b. Capture Intangibles 

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. 

c. Measuring and Describing Change 

After information has been collected over at least two consecutive time periods, change can begin to 

be assessed.143 The U.N. Rule of Law Indicators guide suggests three different ways to measure and 

describe change: 

•	 Dynamic ratings: comparisons between the current and immediately preceding set of data 

collection, which indicate positive, negative, or no change over time. 

•	 Narrative descriptions: puts ratings into context, along with information not included elsewhere. 

•	 Trend data: summarizes the results of all the different sets of data, to show recent change as well 

as long-term changes.144 

When metrics are grouped together in baskets, you can monitor a basket’s “collective trend” whether 

it be positive, negative, mixed, or constant (no change over time).145 

B. U.S. Institute of Peace: Measuring Progress in Conflict Environments 

Metrics Framework 

One of the single most useful frameworks for rule of law metrics is the USIP’s “Measuring Progress 

in Conflict Environments (MPICE) framework.”146 The USIP MPICE process uses four distinct 

143 U.N. ROL Indicators, supra note 131, at 33. 144 Id. 145 Id. at 35. 

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methodologies to evaluate the success of operations as they proceed from Stage 0 “Imposed Stability” 

through Stage I “Assisted Stability” into Stage II “Self-Sustaining Peace.” The four methodologies 

are: 

Content Analysis (CA): Involves surveying media publications using Boolean phrases that represent 

the indicators to track the salience of issues, identify perceptions and determine trends. For example, 

the Fund for Peace Conflict Assessment System Tool (CAST) incorporates reports from more than 

11,000 sources at the national and regional level of countries likely to require rule of law assistance. 

Expert Knowledge (EK): Panels of 5 independent subject matter experts are used to provide their 

judgment on issues of interest, typically using a scale (e.g., from strong agreement to strong 

disagreement). Specifying evaluation criteria allow panel findings to be replicated over time. 

Quantitative Data (QD): Statistical data. References to existing sources of quantitative data related 

to MPICE are provided in the handbook. 

Survey/Polling Data (S/PD): Conducting public opinion surveys to directly assess public attitudes 

and perceptions. 

If the JA is relying on these methodologies for situational awareness, it is critical that he or she fully 

understand the strengths and limitations of each. Substantively, the MPICE Framework states Stage I 

and Stage II objectives (Stage 0 is the baseline condition at the point of intervention), overall goals, 

and the drivers of conflict. Following this are extensive requirements for institutional capacity—the 

“nuts and bolts” of rule of law capability—that will allow the host nation to move toward a selfsustaining system of law enforcement, adjudication, and detention. 

Stage I Objective: Impunity, injustice, and criminalization of state institutions are diminished to the 

point that domestic justice systems, both formal and informal, supported by a sustainable level of 

essential international involvement, provide an accepted process for resolving disputes peacefully by 

maintaining public order and safety, bringing perpetrators of major crimes to justice, holding 

governing authorities accountable through an independent judiciary, protecting fundamental human 

rights, and applying the law equally, in increasing compliance with international norms and standards. 

Stage II Objective: The domestic justice system, both formal and informal, without international 

involvement, provides a well-functioning and accepted process for resolving disputes peacefully by 

maintaining public order and safety, bringing perpetrators of crimes to justice, holding governing 

authorities accountable through an independent judiciary, protecting fundamental human rights, 

applying the law equally and efficiently, and providing equal access to justice, in compliance with 

international norms and standards. 

Goals: 

I. Diminish the Drivers of Conflict 

A. Injustice Diminished 

B. Impunity Diminished 

C. Criminalization of State Institutions Diminished 

II. Strengthen Institutional Performance 

A. Public Order and Safety Strengthened 

B. Administration of Justice Strengthened 

146 John Agoglia, Michael Dziedzic, and Barbara Sotirin, and eds., Measuring Progress in Conflict 

Environments (MPICE): A Metrics Framework, United States Institute of Peace (2010). 

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C. Judicial Independence and Government Accountability Strengthened 

D. Respect for Human Rights Strengthened 

E. Equality before the Law Strengthened 

F. Societal Support for Rule of Law Strengthened 

1.	 Diminish the Drivers of Conflict 

a. Injustice Diminished 

Is the legal system used as an instrument of repression? 

•	 Percentage of citizens who fear law enforcement agencies as instruments of repression or that 

they will be treated unfairly if arrested. (by province and identity group). (S/PD) 

•	 Detainees/prisoners are subjected to torture, cruel, or inhumane treatment, beatings or 

psychological pressures (by identity group). (EK, S/PD, QD) 

•	 Percentage of known prison population detained beyond the period specified in the law who have 

not had their case reviewed by an appropriate authority (by identity group). (QD) 

Is there discrimination in the treatment of disempowered or opposition groups throughout the legal 

process (by identity group)? 

•	 Percentage of prison population (by identity group) relative to their proportion of the overall 

population (QD) 

Are traditional/non-state justice systems an instrument of repression or discrimination? 

•	 Traditional or other non-state justice systems give preference to specific identity groups. (EK) 

•	 Traditional or other non-state justice systems have been co-opted or distorted resulting in 

discriminatory treatment of specific identity groups. (EK) 

b. Impunity Diminished 

Can political elites be held accountable for crimes they commit? 

•	 Ability or willingness of the legal system to investigate, prosecute, and convict perpetrators of 

politically destabilizing crimes (e.g., inter-group murder, use of political violence against rivals, 

and terrorism) when political leaders/elites are suspected of involvement in these crimes. (EK) 

•	 Perceptions of law enforcement officials and victims of the potentially destabilizing crimes cited 

above that suspects involved are untouchable and that cases are abandoned for this reason. (S/PD) 

(CA) 

•	 Ratio of incidence of politically destabilizing crimes to investigations, prosecutions, and 

convictions for these crimes. (QD) 

Is justice obstructed in cases of crimes conducted by political elite? 

•	 Percentage of legal cases where witnesses recant testimony. (QD) 

•	 Number of witnesses, police, judges, prosecutors, defense attorneys and their family members 

who suffer assaults or assassination. (QD) 

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•	 Percentage of judges with personal security details, or who have taken other security precautions 

(e.g., sleeping in their offices or sending their family members to safer locations). (S/PD, EK, 

QD) 

c. Criminalization of State Institutions Diminished 

Do parallel or informal governing structures sustained by illicit revenue exist within formal 

government institutions? 

•	 Political leaders/ruling elites are involved in or linked to criminal looting of natural resources, 

drug trade, human trafficking, money laundering, smuggling of arms or contraband. (EK) 

•	 Public perception that organized crime has a substantial influence on the development of national 

policies, operation of ministries, and allocation of resources. (S/PD) 

•	 Known criminals or individuals linked to crime syndicates occupy key government positions. 

(EK) 

•	 Extent to which government expenditures are unaccounted for or are hidden. (EK) 

•	 Militias/paramilitary groups allied with the government operate with government issue equipment 

and/or funding. (EK) 

2.	 Strengthen Institutional Performance 

a.	 Public Order and Safety Strengthened 

Do national and local law enforcement agencies enforce the law and maintain public order (by 

province or equivalent locality)? 

•	 Percent of population who have been the victims of violent crime in the past month/year. (S/PD) 

•	 Safe and sustainable return of displaced persons and refugees to former neighborhoods. (QD, 

S/PD) 

•	 Use of public/private institutions, such as schools, banks, etc. for their intended purposes. (QD, 

EK) 

•	 Level of market activity. (QD, EK) 

•	 Amount spent by businesses on private security. (QD, S/PD) 

Are law enforcement agencies held accountable for serious misconduct (by province or equivalent 

locality)? 

•	 Percentage of complaints of serious misconduct such as excessive use of force by law 

enforcement agencies that are properly investigated and prosecuted or pursued through 

administrative procedures. (EK/QD) 

•	 Percentage of public complaints that are investigated and sanctions that are imposed by an 

independent agency with subpoena power. (QD, EK) 

•	 Codes of conduct emphasizing adherence to law and to international standards of human rights 

are enforced by the courts and by supervisors in law enforcement agencies. (EK) (CA) 

Does the public have confidence in law enforcement agencies? 

Survey questions: 

•	 “Whom do you trust to protect your personal safety?” (Police as opposed to other relevant 

alternatives such as a violent opposition group) (S/PD) 

•	 “Do you feel safer in your neighborhood today compared to six months ago?” (S/PD) 

•	 “Do you feel safe walking in your neighborhood?” (S/PD) 

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•	 “How would you rate security conditions today?” (S/PD) 

•	 “Have you been the victim of a crime?” (S/PD) 

•	 “Did you report the crime to the police?” 

•	 “Were you satisfied with the response?” 

•	 “Do you teach your children to contact the police if they feel they are in danger and need help?” 

(S/PD) 

b. Administration of Justice Strengthened 

Does the legal system (formal and informal) provide a nonviolent mechanism for the resolution of 

disputes (by identity group)? 

•	 Percentage of citizens who say that they have access to and are willing to use court systems to 

resolve criminal disputes (by identity group). (S/PD) 

•	 Percentage of citizens who say they have access to and are willing to use traditional, customary, 

or informal systems of justice to resolve criminal disputes (by identity group). (S/PD) 

•	 Percentage of population who perceive they have been treated fairly by the formal court system in 

the past and/or expect to be treated fairly in the future (by province and identity group). (S/PD) 

•	 Percentage of population who perceive they have been treated fairly by the traditional, customary, 

or informal court system in the past and/or expect to be treated fairly in the future (by province 

and identity group). (S/PD) 

•	 Extent to which citizens resort to use of the formal legal system to settle inter-group conflicts. 

(QD, S/PD) 

•	 Extent to which citizens resort to the use of traditional, customary or informal legal systems to 

settle intergroup conflicts. (QD, S/PD) 

Does the criminal justice system perform essential functions effectively? 

•	 Criminal Laws and Procedures: 

•	 Criminal laws and criminal procedures address contemporary criminal activity and provide 

effective means of law enforcement for combating terrorist financing, trafficking, 

transnational and organized crime (e.g., extradition, mutual legal assistance, cyber crime, 

etc.). (EK) 

•	 Entry into the System: 

•	 Average times after detention until formal charges are brought. (QD) 

•	 Percentage of those arrested, detained, or charged with a crime who have access to legal 

representation. (QD, S/PD) 

•	 Percentage of pre-trial detention facilities operating in compliance with international human 

rights standards. (EK) 

•	 Prosecution and pre-trial services: 

•	 Average time from entry into system on serious crimes charges until seeing a lawyer. (QD) 

•	 Number of convictions for serious crimes as a percentage of indictments for serious crimes 

per province. (QD) 

•	 Adjudication: 

•	 Average time between filing of formal charges and trial. (QD) 

•	 Percentage of those accused of serious crimes not represented at trial. (QD) 

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•	 Sentencing and sanctions: 

•	 Sentences in criminal cases comply with international standards for proportionality. (EK) 

•	 Prison terms and fines are enforced. (EK) 

•	 Incarceration: 

•	 The penal system is able to enforce sentences on political leaders/elites and the most 

dangerous criminals. (EK) 

•	 Percent of prison population beyond stated capacity of prison system. (QD) 

•	 Number of prisoners who escape per year. (QD) 

•	 Appeals: 

•	 There is a fair and authentic appeals process (as indicated by cost, time required, and access). 

(QD, EK) 

Does the civil justice system (where there is a separate civil justice system) perform essential 

functions effectively? 

•	 Civil Laws and Procedures: 

•	 Civil laws and procedures address contemporary civil needs for adjudication, enforcement 

and recordkeeping. (EK) 

•	 Entry into the system: 

•	 Percentage of those involved in a civil case who have access to legal representation. (S/PD) 

•	 Percentage of citizens who say that they have access to court systems to resolve civil 

disputes. (S/PD) 

•	 Percentage of citizens who are aware of what forms of recourse are available to them to 

resolve a dispute. (S/PD) 

•	 Adjudication: 

•	 Average time between filing of claim and adjudication. (QD) 

•	 Percent of claims that remain un-adjudicated. (QD) 

•	 Enforcement of Judgments and Orders: 

•	 Percentage of judgments enforced relative to the number awarded. (QD) 

•	 Appeals: 

•	 There is a fair and authentic appeals process. (EK, S/PD) 

•	 Percentage of property dispute claims adjudicated relative to claims registered (by identity 

group and province). (QD) 

•	 Percentage of property dispute claims resolved relative to claims registered (by identity 

group). (QD) 

•	 Perception of parties involved with property disputes that the process was fair and the case 

resolved satisfactorily (by identity group and province). (S/PD) 

•	 Property settlements and contracts are enforced (QD) 

How complementary are formal and traditional/non-state justice systems? 

•	 Extent of inconsistencies in substance or process between traditional/non-state justice systems 

and the formal legal system that lead to tension and confusion. (EK) 

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•	 Extent of inconsistencies traditional/non-state justice systems and international human rights 

standards (Negative indicator). (EK) 

•	 Boundaries between formal and informal dispute resolution mechanisms are clear and 

uncontested. (EK, CA) 

•	 Restoration of traditional/non-state justice systems that contributed to the peaceful resolution of 

dispute (if deliberately weakened or eliminated during the conflict). (EK) 

Are judges, prosecutors, lawyers, and penal system employees held accountable? 

•	 Perceptions of the public about the integrity of judges, prosecutors, lawyers, and penal system 

employees. (S/PD) 

•	 Percentage of complaints against judges, prosecutors, lawyers, and penal system employees that 

result in disciplinary action. (QD) 

•	 Percentage of those involved in legal proceedings who report paying bribes to judges. (S/PD) 

c. Judicial Independence and Government Accountability 

Is the judiciary independent? 

•	 The selection and promotion of judges is based on objective, merit-based criteria or elections as 

opposed to identity group membership, political affiliation, or patronage. (EK) 

•	 Removal of judges is limited to specified conditions such as gross misconduct. (EK) 

•	 Judicial expenditures are not controlled by the executive. (EK) 

Are governing authorities held accountable? 

•	 Government officials have been tried and convicted of abuse of authority. (EK) 

•	 In cases where the state is one of the litigants, outcomes are not automatically in the state’s favor. 

(QD/EK) 

d. Respect for Human Rights Strengthened 

Do civilian government authorities respect human rights? 

•	 Number of political prisoners. (EK, QD) 

•	 Percentage of prisons and detention centers operating in compliance with international human 

rights standards. (EK) 

•	 Frequency with which lawyers suffer retribution on account of representing controversial clients. 

(EK) 

Are human rights codified by the government? 

•	 Laws conform to international human rights standards. (EK) 

•	 Human rights (e.g., freedom of religion, assembly, press, speech, association and movement, and 

other civil rights) are effectively protected under the law. (EK, CA) 

Are measures to protect human rights (e.g., human rights commission, human rights courts, or 

ombudsman) effective? 

•	 Percentage of people who feel they could file a human rights complaint without fear of reprisal 

(by identity group). (S/PD) 

•	 Percentage of people who have confidence they will obtain a fair hearing (by identity group). 

(S/PD) 

•	 Percentage of people who perceive the government is committed to pursuing human rights cases 

(by identity group). (S/PD) 

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•	 Percentage of human rights cases that result in remedies (by identity group). (QD) 

e. Equality before the Law Strengthened 

Is the law applied equally? 

•	 Percentage of victims who reported crimes to law enforcement authorities and percent who were 

satisfied with the response (by identity group). (S/PD) 

•	 Perception of the population that the judicial system and law enforcement agencies apply the law 

equally to all identity groups. (S/PD) 

•	 Assessments of the fairness of the judicial system. (EK) 

•	 The staffing of the judiciary, law enforcement agencies, and penal system is reflective of the 

demographic composition of the broader society. (QD, S/PD) 

Is there access to justice? 

•	 Right to legal counsel is recognized by law. (EK) 

•	 Laws, codes or other normative acts set forth a standard timeframe by which persons detained 

shall be given access to a lawyer. (EK) 

•	 Individuals are regularly informed of their right to counsel at the time of arrest or detention. (EK) 

•	 Extent of availability of legal aid or public defense. (EK) 

•	 Percentage of population less than one half-day removed from nearest court house or police post. 

(QD) 

•	 Number of interpreters per 100,000 minority language population. (QD) 

•	 Percentage of court cases dropped due to inability of victim to pay. (QD, S/PD) 

•	 Public perception that corruption has lessened, increased or stayed the same. (S/PD) 

f. Societal Support for Rule of Law Strengthened 

Are social attitudes and norms supportive of peaceful resolution of disputes (by identity group)? 

•	 Extent of voluntary compliance with the law. (S/PD) 

•	 Perception of the population who would consult with a formal legal advisor and use the formal 

court system if they have a dispute. (S/PD) 

•	 Efforts to arrest identity group leaders who commit serious crimes are violently resisted by their 

identity group. (EK) 

How professional is the legal profession? 

•	 There is a process of accreditation to enter the legal profession and for sanctioning misconduct. 

(EK) 

•	 Laws and normative acts establish the independence of the profession and set forth professional 

standards and ethics that are binding. (EK) 

•	 Cases have been successfully brought to court involving claims that the independence of lawyers 

has been violated through interference or intimidation by state authorities or non-state actors. 

(EK) 

•	 Number of practicing lawyers and other legal advisors (such as notaries) per capita (by identity 

group). (QD) 

•	 Continuing legal education programs and practical training/apprenticeships are available to the 

legal profession (by identity group). (QD) 

•	 Presence and strength of professional associations for members of the legal profession. (EK) 

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C. Interagency Conflict Assessment Framework147 

The Interagency Conflict Assessment Framework (ICAF) is the U.S. interagency process for 

developing a common understanding of a crisis across all of the government agencies responsible for 

some part of the response. It is employed at the strategic and operational levels for steady state 

engagement, crisis prevention, contingency planning, and crisis action planning. The two principal 

components of the ICAF are conflict diagnosis and planning. 

The ICAF process is complemented by the Tactical Conflict Assessment and Planning Framework 

(TCAPF). These four open-ended questions are particularly useful for collecting rule of law metrics 

for three reasons: they are a bottom-up source of information from the people of the host nation; they 

allow unforeseen factors to enter the evaluation process; and they avoid the common problem of 

leading questions which suggest the answer desired, particularly troublesome in cultures which place 

a high premium on politeness and telling the questioner what he wants to hear. Although the TCAPF 

process requires training in collection and judgment in evaluation, it is an excellent source of rule of 

law metrics “beyond the checklist.” 

D. Counterinsurgency Advisory and Assistance Team (CAAT) operating in 

support of COMISAF 

Metrics and Benchmarks 

Indicator Past Impact Incentive Benchmark Action Indicated 

Routine Inspections Too Many/ 

Variable: Extortion 

Too Few: Supervisor Bribe 

Pay on Spot 

Reward Relationship 

Reward Relationship 

Citation frequency 

Case Settled Informally 

Set Reasonable Targets 

Benefit Payments Too Many: Kickbacks 

Too Few: Favoritism 

Too Many: Bribe Benefit 

Too Few: Politics 

Other Jurisdiction 

Comparison 

More Legislation 

Review Internal Control 

Basic Services High: Skimming 

Low: Favoritism 

Extra Revenue/Graft 

Low Variable: Favoritism 

Market Price 

Price Other Agency 

Publish Prices 

Monitor Prices 

Price for fuel, food, 

concrete, 

vehicles, tools 

High: Embezzlement Extra Revenue/Graft Market Price Publish Ceiling Price 

Quantity and 

Quality of items 

High: Kickback 

Low: Favoritism 

High: Kickback 

Low Variables: Vendor 

Exploited 

Markey Price Publish Ceiling Price 

Monitor Quality 

Enhance Supervision 

Warnings/Suspension 

Publish Vendor Data 

Outsourcing of 

Work 

Political Consultants Too High: No oversight 

Unskilled Labor 

Market Skill 

Training Levels 

Increase Oversight 

Unproductive Fired 

Staffing Level of 

Departments 

Too High: Politics 

Too Few: Illegal Activity 

Ghost Workers: Payroll 

Diverted 

Too Many: Weak Auditing 

Too Few: Weak Auditing 

Ghost Workers: Very Weak 

(Leadership Involvement) 

Agency Comparison Tighten Ext. O/sight and Auditing / 

Management 

Revise Personnel Practices 

Budget Levels Too High: Diverted/Wasted 

Too Low: Political 

Diversion 

Too High: Political Slush 

Too Low: Diverted Prior 

Agency Comparison Tighten O/Sight of budget / Sup. 

Function 

Set Agency Goals - Move Upward 

over time 

Supervisory Staff 

vs. Workers 

Too Many: Colonized by 

Too High: Slush Fund 

Too Many Workers: 

Political 

Too Many: Payroll Abuse 

Too Large: Theft/Diversion 

Too Many Line Employees: 

Demand Money 

Agency Comparison Tighten Auditing 

Normalize Size/Pay 

Exam. Personnel Hiring and day-today Supervision 

147 U.S. ARMY, FM 3-07: STABILITY OPERATIONS, (6 Oct. 2008), Appendix D. 

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E. The United Nations Rule-of-Law Tools for Post-Conflict States: 

Monitoring Legal Systems148 

•	 Lack of trained judicial officials; assess the impact of any training given to judicial officials: 

performance improved, same, worse. How? Why? Try to identify reasons for any change or 

failure to change. 

•	 Lack of infrastructure, materials or equipment necessary to perform duties. Are the materials 

appropriate to the environment, e.g., have computers been sent to a court that does not have 

electricity? Are there vehicles or are they in need of repair? 

•	 Lack of will to fulfill obligations, conduct investigations, create dossiers, show up for work on 

time. 

•	 Interference by the military, police, local officials or other Government agents in judicial matters. 

•	 Corruption/extortion, bribery or other inducements intended to affect a judicial decision. 

•	 Evidence of bias (ethnic, religious, racial, national or social class) in any judicial decisions. Are 

people from different groups treated differently for the same acts/offenses? 

•	 Threats against judicial officials, from whom and for what reasons. 

•	 Access by defense lawyers to their clients: immediate, in conditions respecting confidentiality. 

•	 Are arrest warrants legally issued and executed? Is it possible to challenge pretrial detention 

decisions in a court and to have this decision reviewed by a higher court? Are pretrial or precharge detention periods longer than the law allows and, if so, why? 

•	 Timeliness and conduct of trials and other judicial proceedings. 

•	 Number of judges and prosecutors serving, vacancies, transfers and salaries and working 

conditions and number of available lawyers to defend the indigent (structures for legal aid?). 

•	 Appropriate use of Government resources for the court system and comparative analysis between 

budgetary allocations to the ministry of justice and the judiciary as opposed to other Government 

functions. 

•	 Involvement of and oversight by the authorities, such as the ministry of justice or the chief of the 

judiciary. Does anyone from the ministry of justice ever come to inspect the courts, prosecutor’s 

office or prisons? Is there any sign of the inspector general from the justice minister exerting 

some control or oversight over judicial officers’ performance? Have any judges, prosecutors or 

lawyers been punished for failing to perform their professional duties?149 

F. Gathering the Data 

Ensure subordinate units understand the intent of your metrics and the role they play in adapting the 

ROL plan so that you and the subordinate will share a common understanding of what is to be 

accomplished and its value.150 If requested information does not survive a cost-benefit analysis in 

terms of the other operational requirements that will have to be dropped to ensure collection and the 

risk imposed in gathering the information, then the collection requirement must be reframed.151 

When two separate sets of metrics (i.e. for detention operations and for the judiciary) ask for the same 

148 Office of the U.N. High Comm’r for Human Rights, Rule-of-Law Tools for Post-Conflict States: Monitoring
 

Legal Systems (2006). 

149 Id. at 51-52. 150 41st Fires BDE IZ AAR, FEB 08 – JUL 09, supra note 70. 151 4th Brigade Combat Team, 1st Cavalry Division, Brigade Judge Advocate Iraq After Action Report, Tallil 

Airbase, Iraq, June 2008 – June 2009, (14 Aug 2009) [hereinafter 4-1 CAV IZ AAR, JUN 08 – JUN 09; on file 

with CLAMO]. 

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information, then at least one set of metrics is improperly off-point. Also, of course, units should not 

squander limited manpower by tasking subordinate units with duplicative reporting requirements.152 

G. Conclusion 

The point that bears most repeating is that your measurement system must be tailored to suit the 

situation at hand. There is no cookie-cutter approach to measuring success for every rule of law 

program. Adjusting your plan to the specific needs of your area of responsibility will encourage 

success. In light of this, it is important to note that coordination with all parties involved is essential 

to this endeavor. It is rare for a single authority to have visibility, let alone control, of the dozens of 

rule of law initiatives in country. Stovepipes lead to gaps and overlaps. Projects are frequently 

unconnected to any strategic framework. Few people are on the ground for more than six months, 

leading to a low average level of experience and poor programmatic continuity. What coordination 

does exist is usually personality-driven and not institutional. Set your replacement up for success by 

readily transferring your knowledge and experience. This will help alleviate redundancy and prevent 

the process of “reinventing the wheel.” Consistency allows for progress to be measured far more 

accurately. 

152 41st Fires BDE IZ AAR, FEB 08 – JUL 09, supra note 70. 

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CHAPTER 6 

FISCAL CONSIDERATIONS IN RULE OF LAW 

OPERATIONS 

The U.S. Constitution grants Congress the “power of the purse,”1 a function that both appropriates 

public funds for a federal activity and defines a specific use for those funds. The principles of federal 

appropriations law2

 permeate all federal activity, both within the United States and overseas. Thus, 

there are no “contingency” or “deployment” exceptions to the fiscal principles, including the funding 

of ROL operations. Because fiscal issues will arise during every ROL operation, a failure to 

understand the nuances of fiscal law may lead to the improper obligation and/or disbursement of 

appropriated funds.3

 The improper obligation of appropriated funds may result in negative 

administrative and/or criminal sanctions against those responsible for violations of fiscal law. As a 

result, ROL advisors need a solid understanding of the basic fiscal principles prior to advising their 

commands on the legality of funding ROL activities. 

Fiscal law can rapidly change in response to both the operating environment (OE) and the will of the 

U.S. public, manifested in congressional appropriations and authorizations.4 The DOD and Full-Year 

Continuing Appropriations Act 2011, enacted on April 15, 2011, demonstrates how quickly the fiscal 

landscape can change.5

 The 2011 Appropriations Act provided $400 million in a new fund, the 

Afghanistan Infrastructure Fund (AIF), for water, power, transportation, and other infrastructure 

projects in support of the counterinsurgency strategy. These projects are to be jointly formulated and 

concurred in by the Secretary of State and the Secretary of Defense.6

 Meanwhile, in the same Act, 

Congress authorized only $500 million in Operations and Maintenance, Army (OMA) funding for the 

Commander’s Emergency Response Program (CERP), a decline from $1.2 billion in CERP funding 

the previous year. Congress also capped CERP projects at $20 million, clearly establishing the new 

1 See U.S. CONST. art. I, § 9, cl. 7 (“No money shall be drawn from the Treasury, but in Consequence of 

Appropriations made by law ...”).

2

 The terms “federal fiscal law” and “federal appropriations law” are used interchangeably to refer to the “body 

of law that governs the availability and use of federal funds.” See PRINCIPLES OF FED. APPROPRIATIONS LAW, 

Ch. 1, 1-2, GAO-04-261SP (U.S. Gov’t Accountability Office, Office of the General Counsel) (3d ed. vol. I 

2004). 

3

 An obligation arises when the government incurs a legal liability to pay for its requirements, e.g., supplies, 

services, or construction. From a legal standpoint, the obligation is a government promise to pay a certain 

amount to a contractor in consideration for their promise to provide goods, services or construction. A 

disbursement (or expenditure) is an outlay of funds to satisfy a legal obligation. For example, a contract award 

for construction normally triggers a fiscal obligation. The government may pay the contractor, or disburse 

funds from that recorded obligation, later in time as the construction is completed. The obligation for the full 

estimated amount, however, is recorded against the proper appropriation at the time the government makes the 

promise to pay (usually at contract award). Commands also incur obligations when they obtain goods and 

services from other U.S. agencies or a host nation. Although both obligations and disbursements are important 

fiscal events, the time of obligation is generally the critical point of focus for the fiscal advisor. See Cont. & 

Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Center & Sch., U.S. Army, Fiscal Law Deskbook, Chapter 3 

and 5 (2011) [Hereinafter “the TJAGLCS Fiscal Deskbook], available at 

https://www.jagcnet.army.mil/JAGCNETPortals/Internet/DocLibs/tjaglcsdoclib.nsf (last visited April 21, 

2011). 

4 See, e.g., Congressional Research Service RL33837, Congressional Authority to Limit U.S. Military 

Operations in Iraq (February 27, 2008). 5

 Pub. L. No. 112-10 (2011). 

6

 The AIF was authorized in § 1217 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 

(FY11 NDAA), Pub. L. No. 111-383, 124 Stat. 4137, 4393 (2011). 

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AIF as the source for large-scale infrastructure projects.7

 Rule of law practitioners must follow 

developments in both DOD and partner agency appropriations and authorizations in order to best 

assist commanders in ROL functions. There is no overarching ROL funding source, so familiarity 

with new funding developments is essential to an effective, efficient and responsible ROL fiscal 

practice. 

Congress generally imposes legislative fiscal controls through three basic mechanisms, each 

implemented by one or more statutes. The three basic fiscal controls are: 

1. Obligations and expenditures must be for a proper purpose;

8 

2. Obligations must occur within the time limits (or “period of availability”) applicable to the 

appropriation (e.g., operation and maintenance (O&M) funds are available for obligation for one 

fiscal year); 9

 and 

3. Obligations must not exceed the amounts authorized by Congress, and must not violate the 

Antideficiency Act (ADA).10 

These controls are enforced, in part, by the “congressional watchdog,” the Comptroller General of the 

United States, who heads the independent, nonpartisan U.S. Government Accountability Office 

(GAO). GAO audits executive agency operations regularly to determine whether federal funds are 

being spent efficiently, effectively, and in compliance with fiscal statutes and regulations. Congress 

likewise requires significant reporting on agency programs and activities. For example, section 1217 

of the National Defense Authorization Act for Fiscal Year 2011, in authorizing the new AIF, also 

requires annual reporting regarding program implementation and a description of all projects carried 

out under the authority.11 Congress also previously required the President to provide reports detailing 

performance indicators and measures for Provincial Reconstruction Teams in Afghanistan. 

Before a JA advises the command on whether a specific ROL operation is fiscally sound, the JA 

needs a solid understanding of the basic Purpose, Time, and Amount fiscal controls that Congress 

imposes on executive agencies. Although each fiscal control is important, the “purpose” control is 

most likely to become an issue during military operations and ROL activities, and so it is treated in 

detail here. Following that is a discussion of the basic fiscal framework of operational funding, of 

which ROL activities are a subset. As the DOS is the primary agency responsible for foreign 

reconstruction efforts, including ROL activities, following the general discussion of operational 

funding is a discussion of the appropriations and authorizations available to the DOS to conduct ROL 

activities, which the DOD may access via Interagency Acquisitions. There follows a discussion of 

some of the current appropriations and authorizations available to the DOD to conduct ROL 

activities. Finally, the chapter concludes with a discussion of the specific issues that arise in the 

context of funding ROL activities, with a particular focus on Provincial Reconstruction Teams 

(PRTs).12 

7

 These changes to CERP were also initiated in the FY11 NDAA, § 1212. 8 31 U.S.C. § 1301(a). 

9 31 U.S.C. § 1552. 

10 See 31 U.S.C. §§ 1341 & 1342 (2008); 31 U.S.C. § 1342 (2008). For more information on the basic fiscal 

legislative controls of Purpose, Time, and Amount (ADA), see the TJAGLCS Fiscal Deskbook, chs. 2-5.

11 Pub. L. No. 111-383, § 1217 (i).
 12 PRTs are discussed in detail in chs. 2 and 7 of this Handbook. 

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I. Purpose 

A. Introduction 

The Purpose Statute provides that “[a]ppropriations shall be applied only to the objects for which the 

appropriations were made except as otherwise provided by law.”13 Thus, expenditures must be 

authorized by law14 or be “reasonably related” to the purpose of an appropriation. In determining 

whether expenditures conform to the purpose of an appropriation, JAs should apply the GAO’s 

Necessary Expense Doctrine, which allows for the use of an appropriation if: 

1. An expenditure is specifically authorized in the statute, or is for a purpose that is “necessary and 

incident” to the general purpose of an appropriation; 

2. The expenditure is not prohibited by law; and 

3. The expenditure is not provided for otherwise, i.e., it does not fall within the scope of another, 

more specific, appropriation.15 

B. General Prohibition on Retaining Miscellaneous Receipts and 

Augmenting Appropriations 

Absent a statutory exception, a federal agency that receives any funds other than the funds 

appropriated by Congress for that agency must deposit those funds into the U.S. Treasury.16 

Therefore, if an agency retains funds from a source outside the normal appropriated fund process, the 

agency violates the Miscellaneous Receipts Statute.17 When an agency expends funds that were not 

specifically appropriated for that agency, it may be violating the constitutional requirement that 

agencies only expend funds appropriated by Congress.18 

A corollary to the prohibition on retaining Miscellaneous Receipts is the prohibition against 

augmentation.19 Absent a statutory exception, an agency augments its funds when it expends 

13 31 U.S.C. § 1301(a). 14 For DOD, this includes permanent legislation (Title 10) and annual appropriations/authorizations acts 

(DODAA/NDAA). For the State Department, this includes permanent legislation (Title 22) and annual 

appropriations/authorization acts. 

15 For in-depth legal analysis of the Necessary Expense Doctrine, see the TJAGLCS Fiscal Deskbook, ch. 2:
 

Purpose.

16 See 31 U.S.C. § 3302(b): “[A]n official or agent of the Government receiving money for the Government 

from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge
 

or claim.” 

17 See 31 U.S.C. § 3302(b); see also, Interest Earned on Unauthorized Loans of Fed. Grant Funds, B-246502, 

71 Comp. Gen. 387 (1992). 

18 See Use of Appropriated Funds by Air Force to Provide Support for Child Care Centers for Children of
 

Civilian Employees, B-222989, 67 Comp. Gen. 443 (1988); see also, Bureau of Alcohol, Tobacco, and
 

Firearms—Augmentation of Appropriations-Replacement of Autos by Negligent Third Parties, B-226004, 67
 

Comp. Gen. 510 (1988). 

19 An augmentation is an action by an agency that increases the effective amount of funds available in an
 

agency’s appropriation. Generally, this results in expenditures by the agency in excess of the amount originally
 

appropriated by Congress. Absent an exception, augmenting appropriated funds will likely violate one or more 

of the following: the U.S. Constitution, the Purpose Statute, the Miscellaneous Receipts Statute, and the 

Antideficiency Act (ADA); see the TJAGLCS Fiscal Deskbook, ch. 2: Purpose; see also Nonreimbursable 

Transfer of Admin. Law Judges, B-221585, 65 Comp. Gen. 635 (1986); cf. 31 U.S.C. § 1532 (prohibiting 

transfers from one appropriation to another except as authorized by law).
 

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nonappropriated funds20 

or expends funds that were appropriated to a different federal agency. 

Appropriated funds designated for one agency may generally not be used by a different agency.21 If 

two funds are equally available for a given purpose, an agency may elect to use either, but once the 

election is made, the agency must continue to charge the same fund.22 The election is binding even 

after the chosen appropriation is exhausted.23 

Congress, however, has enacted limited statutory exceptions to the Miscellaneous Receipts and 

Augmentation prohibitions. The most significant of these statutory exceptions are the various 

authorities allowing for Interagency Acquisitions, and the limited Transfer Authority that Congress 

provides to DOD to transfer funds between congressionally specified appropriations. 

“Interagency Acquisition” (IA) is the term used to describe the procedure by which an agency that 

requires supplies or services (the requesting agency) obtains them through another federal 

government agency (the servicing agency). The IA authorities allow agencies, under certain 

circumstances, to retain funds from other agencies and/or augment their appropriations with 

appropriations from other agencies.24 The Economy Act is an example of a statutory authority that 

permits a Federal agency to order supplies or services from another agency. For these transactions, 

the requesting agency must reimburse the performing agency fully for the direct and indirect costs of 

providing the goods and services.25 IAs may become prominent during ROL activities when DOD 

executes DOS-funded missions, and vice-versa. Individual agency regulations must be consulted for 

IA order procedural and approval requirements.26 When DOS transfers foreign assistance funds to 

DOD, it relies upon a provision in the Foreign Assistance Act, section 632, which authorizes the 

transfer of funds to other agencies. While this is similar to the Economy Act in some regards, there 

are significant differences, including the fact that certain section 632 transfers serve to obligate the 

funds transferred, without the need to deobligate unused funds at the end of the fiscal year, as is 

required with Economy Act transactions.27 

Transfer authority is a second major exception to the miscellaneous receipts and augmentation 

prohibitions that affect ROL activities. Transfer authorities are “annual authorities provided by the 

Congress via annual appropriations and authorization acts to transfer budget authority from one 

20 Nonappropriated funds are monies that are not appropriated by the Congress to incur obligations and make
 

payments out of the United States Treasury. DOD 7000.14-R, Financial Management Regulation, vol. 13, ch.
 

1, para. 010213 (Sep. 2008). 

21 See Secretary of the Navy, B-13468, 20 Comp. Gen. 272 (1940); Bureau of Land Management—Disposition 

of Water Res. Council Appropriations Advanced Pursuant to the Economy Act, B-250411, 72 Comp. Gen. 120 

(Mar. 1, 1993).

22 See Funding for Army Repair Projects, B-272191, Nov. 4, 1997. 23 Honorable Clarence Cannon, B-139510, May 13, 1959 (unpub.) (Rivers and Harbors Appropriation
 

exhausted; Shipbuilding and Conversion, Navy, unavailable to dredge channel to shipyard).

24 See, e.g., Economy Act, 31 U.S.C. § 1535; Foreign Assistance Act (FAA), 22 U.S.C. § 2344, 2360, 2392
 

(permitting foreign assistance accounts to be transferred and merged); Emergency Presidential drawdown 

authority. 10 U.S.C. § 2205 (exception to Miscellaneous Receipts Statute).

25 See Washington Nat’l Airport; Fed. Aviation Admin., B-136318, 57 Comp. Gen. 674 (1978) (depreciation and 

interest); Obligation of Funds Under Mil. Interdepartmental Purchase Requests, B-196404, 59 Comp. Gen. 563 

(1980); see also DOD Financial Management Regulation, 7000.14-R, vol. 11A, ch. 1, para. 010203.J (March
 

2011) (waiving overhead for transactions within DOD). 

26 See Federal Acquisition Regulation Subpart 17.5; Defense Federal Acquisition Regulation Subpart 217.5;
 

DoD Financial Management Regulation vol. 11A, ch. 3 (Feb. 2008); see also, Army Federal Acquisition 

Regulation Supplement Subpart 17.5.

27 But see Expired Funds and Interagency Agreements between GovWorks and the Dep’t of Defense, B-308944, 

July 17, 2007 (finding that DOD improperly extended the availability of funds by “parking” them at 

GovWorks).
 

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appropriation or fund account to another.”28 In other words, statutory transfer authority29 allows an 

agency to “shift funds” between different appropriations without violating the miscellaneous receipts 

prohibitions, the augmentation prohibitions, or the Antideficiency Act (ADA).30 Unless provided for 

within the statutory transfer authority, however, the transferred funds retain the same Purpose, Time, 

and Amount restrictions after the funds have been transferred to a different appropriation.31 For the 

purposes of ROL activities, the most significant appropriations with transfer authority are the Iraq 

Security Forces Fund (ISFF), the Afghanistan Security Forces Fund (ASFF), and the new AIF. These 

appropriations, and their respective transfer authorities, are discussed in further detail below. 

II. Operational Funding, Foreign Assistance, and Rule of Law Activities 

A. Foreign Assistance Generally 

There is no “deployment exception” to the general fiscal law framework. The same fiscal limitations 

regulating the obligation and expenditure of funds in garrison apply to operational funding. The 

focus of operational funding is how to fund operations whose primary purpose is to benefit foreign 

militaries, foreign governments, and foreign populations, which are all forms of foreign assistance. 

Rule of law activities fall within the operational funding framework because their primary intent is to 

improve the ROL of foreign government agencies, foreign government institutions, and foreign civil 

institutions. 

The general rule in operational funding is that DOS funds Foreign Assistance. Foreign Assistance 

includes (1) Security Assistance to a foreign military, police forces or other security-related 

government agency, (2) Development Assistance for infrastructure projects, and (3) Humanitarian 

Assistance directed to a foreign population. As a result, ROL activities will generally be classified as 

Foreign Assistance, and will be funded, as per the general rule, by the DOS. 

For DOD operational funding purposes, there are two exceptions to the general rule that DOS funds 

Foreign Assistance. The first is the narrow “Interoperability, Safety, and Familiarization Training” 

exception, colloquially referred to as the “little t” training exception. DOD may fund the training (as 

opposed to goods and services) of foreign militaries with its operations and maintenance funds 

(O&M) only when the purpose of the training is to enhance the [I]nteroperability, [F]amiliarization, 

and [S]afety of the foreign military with U.S. military units, and when it does not rise to the level of 

Security Assistance Training.32 This exception applies only to training of foreign militaries, not 

28 Dep’t of Defense Financial Mgmt. Reg. (DOD FMR), vol. 2A, ch. 1, para. 010107.B.58. (Oct. 2008); see also 

DOD FMR, vol. 3, ch. 3, para. 030202 (Nov. 2008) (transfers often require notice to the appropriate 

Congressional subcommittees. Most DOD transfers require the approval of the Secretary of Defense or his/her 

designee, but some transfers require the approval of the Office of Management and Budget (OMB), or even the 

President). 

29 31 U.S.C. § 1532. 30 An unauthorized transfer also violates the Purpose Statute, 31 U.S.C. § 1301(a), because it constitutes an 

unauthorized augmentation of the receiving appropriation. For detailed legal analysis of transfer authorities, see 

the TJAGLCS Fiscal Deskbook, ch. 12. 

31 PRINCIPLES OF FED. APPROPRIATIONS LAW, ch. 2, 2-24-28, GAO-04-261SP (U.S. Gov’t Accountability 

Office, Office of the General Counsel) (3d ed. vol. I 2004). (several GAO decisions have interpreted 31 U.S.C. 

§ 1532 to mean that unless a particular statute authorizing the transfer provides otherwise, transferred funds are 

subject to the same purpose and time limitations applicable to the donor appropriation—the appropriation from 

which the transferred funds originated; for example, if funds from a one-year appropriation were transferred 

into a five-year appropriation, the transferred funds would be available only for one year). 32 See The Honorable Bill Alexander, House of Representatives, B-213137, Jan. 30, 1986 (unpublished GAO 

opinion) (“[M]inor amounts of interoperability and safety instruction [do] not constitute “training” as that term 

is used in the context of security assistance, and could therefore be financed with O&M appropriations.”); see 

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police forces or other foreign government agencies, and as a result will not normally apply to ROL 

activities. 

The second exception to the operational funding general rule is that DOD may fund Foreign 

Assistance operations if Congress has provided a specific authorization and appropriated funds to 

execute the contemplated mission. Therefore, ROL activities may be funded with DOD 

appropriations if Congress has provided specific authority and appropriated funds for the ROL 

operation contemplated by the command. Section III will discuss selected appropriations and 

authorizations available to DOS to fund these activities, which DOD may access in some instances 

via IAs. Section IV details selected appropriations and authorizations available to DOD. 

B. Foreign Assistance Specific Limitations 

Overhanging all military ROL activities are two general statutory prohibitions on the provision of 

USG assistance to foreign governments. The first prohibition is a general statutory prohibition on 

funding foreign law enforcement with Foreign Assistance Act (FAA) funds. Specifically, section 660 

of the FAA prohibits the provision of “training or advice or provide any financial support, for police, 

prisons, or other law enforcement forces for any foreign government...”33 There are a number of 

exceptions to this restriction, including one enacted in 1996 to fund law enforcement and ROL 

activities, specifically allowing: 

assistance provided to reconstitute civilian police authority and capability in the post-conflict 

restoration of host nation infrastructure for the purposes of supporting a nation emerging from 

instability, and the provision of professional public safety training, to include training in 

internationally recognized standards of human rights, the ROL, anti-corruption, and the 

promotion of civilian police roles that support democracy.34 

The result is that despite the general prohibition, most ROL operations properly funded by DOS will 

fit into the exception authorizing the provision of the law enforcement and ROL aid, so long as it is 

funded with DOS appropriations and authorizations. 

The second prohibition is commonly referred to as the “Leahy Amendment.” The Leahy Amendment 

was first enacted as an amendment in the 1997 Foreign Operations Appropriation Act (FOAA is the 

annual DOS Appropriations Act, most recently enacted as Division F of the Department of Defense 

and Full-Year Continuing Appropriations Act, 2011) and is now codified in the Foreign Assistance 

Act.35 It prohibits the USG from providing assistance under the Foreign Assistance Act or Arms 

Export Control Act to units of foreign security forces if the DOS has credible evidence that such units 

have committed gross violations of human rights, unless the Secretary of State determines and reports 

that the government of such country is taking effective measures to bring the responsible members of 

the security forces unit to justice. Similar language is also found in annual DOD Appropriations 

Acts, prohibiting the DOD from funding any training program involving a unit of the security forces 

of a foreign country if the DOS has credible information that the unit has committed a gross violation 

of human rights unless all necessary corrective steps have been taken or the Secretary of Defense, in 

also the TJAGLCS Fiscal Deskbook, ch. 10, Operational Funding (provides the legal requirements to apply the 

“little t” training exception, along with examples of what constitutes “little t” training versus Security 

Assistance Training.). 

33 22 U.S.C. § 2420(a). 34 22 U.S.C. § 2420(b)(6). 35 22 U.S.C. § 2378d. 

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consultation with the Secretary of State, decides to waive the prohibition due to extraordinary 

circumstances.36 

The DOS position as lead agency in foreign assistance and reconstruction is mirrored in the fiscal 

organization for ROL and other reconstruction activities. Funding for some post-conflict security 

efforts in Afghanistan and Iraq, for example, has come not from DOD “Title 10” authority but from 

DOS “Title 22” authority.37 When DOD executes these DOS-funded missions via IAs, DOD 

agencies effectively operate as a “subcontractor” for DOS on DOS-controlled projects.38 

III. Department of State Appropriations for Rule of Law Activities 

The exact contours of the ROL activity being considered by the unit and its interagency partners will 

determine if an appropriation and/or authorization may be available from a Purpose standpoint. For a 

detailed discussion of all of the relevant appropriations and authorizations, including their respective 

Purpose, Time, and Amount restrictions, see the Fiscal Law Deskbook, Chapter 10: Operational 

Funding.39 In addition, the DOS has two appropriations that have acquired a primary role in funding 

ROL activities executed by PRTs. These two appropriations are the Economic Support Fund (ESF) 

and funds provided under the heading International Narcotics and Law Enforcement. Each is 

discussed below in detail. While these sources provide the bulk of U.S. funding for ROL activities, 

there are several other funding sources from DOS and other agencies. A ROL practitioner should 

seek out other agency representatives and coordinate funding for proposed projects. 

A. Economic Support Fund 

The Economic Support Fund (ESF) is a prominent DOS funding source for ROL operations. The 

FAA authorizes ESF assistance in order to promote the economic or political stability of foreign 

countries.40 USAID, with overall foreign policy guidance from DOS, implements most ESF-funded 

programs.41 The ESF funds programs all over the world; its application is not limited to efforts in 

Iraq and Afghanistan. Generally, the ESF has a 2-year period of availability, with funds appropriated 

annually in the FOAA, the DOS equivalent to the annual DOD Appropriations Act. In FY 2010, 

Congress appropriated $6.3 billion to the ESF in the Consolidated Appropriations Act, 2010,42 

available for new obligations until September 2011, and an additional $2.49 billion in the 

Supplemental Appropriations Act, 2010,43 available for new obligations until September 2012. For 

FY 2011, Congress has appropriated $5.9 billion to the ESF in the FY11 Full-Year Continuing 

Appropriations Act,44 available for new obligations until September 2012. These funds are 

sometimes earmarked for certain countries or efforts in a particular region; the amounts are not for 

Iraq and Afghanistan exclusively. Rule of law practitioners should be aware of specific requirements 

that may be imposed on the use of funds, such as a “matching fund” requirement in Iraq that may 

36 See, e.g., Dep’t of Defense and Full-Year Continuing Appropriations Act, 2011, § 8058, Pub. L. No. 112-10 

(2011). 

37 CENTER FOR LAW AND MILITARY OPERATIONS, FORGED IN THE FIRE 220 (2006) (regarding the Afghan
 

National Army). 

38 THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK 274 (2010). 

39 the TJAGLCS Fiscal Deskbook, ch. 10, Operational Funding; see also THE JUDGE ADVOCATE GENERAL’S 

LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK 211, ch. 15: Fiscal Law (2010). 40 See 22 U.S.C. § 2346. 41 UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT, AGENCY FINANCIAL REPORT FY 2010 82,
 

available at http://www.usaid.gov/performance/afr/afr10 (last visited April 21, 2011). 42 Pub. L. No. 111-117, 123 Stat. 3034, 3328 (2009). 

43 Pub. L. No. 111-212, 124 Stat. 2302, 2322 (2010). 

44 Pub. L. No. 112-10 (2011). 

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apply to ESF or other DOS funds. Specifically, the 2009 Supplemental Appropriations Act added a 

requirement for the Government of Iraq to also contribute financially to certain programs.45 

1. Iraq 

As U.S. forces in Iraq drawdown, significant organizational transitions are underway. Rule of law 

practitioners must ensure that they do appropriate research and coordination, as the programs and 

organizations described in this section may change rapidly. For example, as PRTs close or transition 

into consulates and Embassy Branch Offices (EBOs), many aspects of ESF programs are likely to 

change.46 

ESF in Iraq has been used to pursue one of three foreign assistance objectives: the Security Track, the 

Political Track, or the Economic Track. Each of the three major ESF tracks is allocated into several 

subprograms that target specific initiatives that support the primary purpose of the ESF, which is to 

improve infrastructure, promote democracy and civil society, and support capacity building and 

economic development.47 

Currently, the ESF’s Security Track is allocated into six different subprograms48 designed to reduce 

violence, improve infrastructure security, and strengthen government accountability.49 Three of those 

subprograms are generally available to fund ROL activities: the Provincial Reconstruction 

Team/Provincial Reconstruction Development Council (PRT/PRDC) Projects Program, the Local 

Governance Program, and the PRT Quick Response Fund (PRT QRF).50 

The primary purpose of the PRT/PRDC Projects Program funds is for small projects (average: $1.5 

million) that improve provincial government capacity to provide essential services. It is implemented 

and overseen by DOS. It is executed for the DOS, however, by the U.S. Army Corps of Engineers, 

Gulf Region Division (USACE GRD) via DOS FAA section 632 Interagency Acquisitions (IAs) 

authority, through Military Interdepartmental Purchase Requests (MIPRs). (Note, however, that GRD 

has begun transferring command and control of Iraqi reconstruction efforts to the USACE Middle 

45 Pub. L. No. 111-32, 123 Stat. 1859. (Section 1106(b) includes a “matching requirement,” implemented by the 

Department of State’s April 9, 2009, “Guidelines for Government of Iraq Financial Participation in United 

States Government-Funded Civilian Assistance Programs and Projects”). 

46 The Department of State Bureau of Near Easter Affairs Iraq Policy & Operations Groupstated, in the 

February 17, 2011 edition of its biweekly Iraq Status Report, that “[a]s the PRTs close, established relationships 

in the provinces will be maintained through a variety of measures, including contact from Embassy, Consulates, 

and Embassy Branch Offices (EBOs), locally engaged staff, and using networds or trained Iraqis developed by 

USAID and others over the more than seven-year period of assistance efforts in Iraq.” Available at 

http://www.state.gov/p/nea/rls/rpt/c42598.htm (last visited August 3, 2011). 47 SPECIAL INSPECTOR GENERAL FOR IRAQ RECONSTRUCTION, January 2011 Quarterly Report and Semiannual 

Report to the United States Congress, available at 

http://www.sigir.mil/publications/quarterlyreports/index.html (last visited August 3, 2011) [hereinafter SIGIR]. 48 The six subprograms under the ESF’s Security Support Track are: PRT/PRDC Projects, the Local 

Governance Program, the PRT Quick Response Fund (PRT QRF), the Community Stabilization Program, the 

Infrastructure Security Protection(for Oil, Water, and Electricity), and the Community Action Program. See 

SIGIR, supra note 47, at 27; see also, Department of State Report on Iraq Relief and Reconstruction, July 2008, 

Section 2207 Report to Congress, APPENDIX III: Economic Support Funds (ESF) and Other Fund Sources, 

available at http://2001-2009.state.gov/documents/organization/109441.pdf (last visited April 21, 2011) 

[hereinafter APPENDIX III] (the FY 2005 Continuing Resolution and FY04 Emergency Appropriations Act for 

Defense and for the Reconstruction of Iraq and Afghanistan required quarterly reports for the use of 

Reconstruction efforts in Iraq. This is an example of a fiscal control mechanism employed by Congress). 

49 SIGIR, supra note 47. 50 As PRTs close during 2011, the programs and funds they administer will be subject to change. 

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East District, which will be establishing a new Iraq Area Office.)51 PRT/PRDC programs are 

approved by the DOS at the U.S. Embassy, Iraq.52 

The primary purpose of the Local Governance Program is to promote diverse and representative 

citizen participation in provincial, municipal, and local councils. It is implemented and overseen by 

USAID. These projects have been executed by the PRTs and “embedded” PRTs (ePRTs) on behalf 

of USAID via FAA Section 632 IAs, through MIPRs. The approval authorities for these projects are 

USAID program managers at the U.S. Embassy, Iraq.53 

The PRT QRF is the least cumbersome subprogram of the ESF Security Track, due to its broad 

purpose and lower approval authorities. (There is no counterpart to QRF in Afghanistan.)54 As a 

result, it has been the most accessible ESF subprogram to fund the smaller-scale ROL activities that 

PRTs and ePRTs execute. The primary purpose of the PRT QRF is for grants (to non-governmental 

organizations or NGOs) and purchases/micro-purchases (to contractors) so the PRTs/ePRTs can 

support local neighborhoods and government officials or members of community-based 

organizations, as well as small project needs for the provinces. 

The ESF’s Economic Track is also allocated into seven different subprograms.55 Of those six 

subprograms, only the Targeted Development Program (TDP) is significant for ROL activities. The 

other subprograms focus on large scale economic support infrastructure and will generally be 

unavailable for most ROL activities. The purpose of the TDP is for grants for NGO’s to support 

economic, social, and governance initiatives in areas of conflict in Iraq. The focus of the TDP is on 

conflict mitigation, building national unity, and other developmental efforts. The Ambassador, Iraq, 

is the approval level for the TDP grants. 

Finally, the ESF’s Political Track is allocated into eight different subprograms.56 While not robustly 

used early on in stability operations in Iraq, funds from this track have supported several large scale 

ROL projects, including case support for on-going high-visibility criminal trials and the coordination 

of legal matters related to the transfer of detainees to Government of Iraq custody. Democracy and 

Civil Society programs in the Political Track have also funded programs such as judicial procedural 

awareness training to legal and security force professionals.57 

51 See News Release, USACE Middle East District, MED taking responsibility for Iraq projects (Nov. 17, 

2010), http://www.tam.usace.army.mil/MED10-11-17-02.asp (last visited April 22, 2011) [hereinafter News 

Release].

52 Id. 53 Id. 54 H. COMM. ON ARMED FORCES, 110TH CONG., AGENCY STOVEPIPES VS. STRATEGIC AGILITY: LESSONS WE 

NEED TO LEARN FROM PROVINCIAL RECONSTRUCTION TEAMS IN IRAQ AND AFGHANISTAN 22 (Comm. Print 

Apr. 2008) [hereinafter AGENCY STOVEPIPES] ; Office of the Special Inspector General for Iraq Reconstruction, 

Opportunities to Improve the Management of the Quick Response Fund, SIGIR-09-011 (Jan. 29, 2009). 55 The seven subprograms under the ESF’s Economic Track are: the O&M Sustainment of Infrastructure 

(executed by the Army Corps of Engineers, Gulf Region Division (USACE GRD) through an Interagency 

Agreement), the Inma Agriculture Private Sector Development Project (executed by USAID), the Tijara 

Provincial Economic Growth Program, the Targeted Development Program (implemented by the Ambassador, 

Iraq), the Plant-Level Capacity Development & Technical Training Program, the Izdihar Program, and the 

Financial Sector Development Program. SIGIR, see supra note 47. See also APPENDIX III, supra note 48. 56 The eight subprograms under the ESF’s Political Track are: the Tatweer National Capacity Development 

Program; the Democracy and Civil Society Program; the Iraqi Refugees Program; the Economic Governance II 

(Policy and Regulatory Reforms) Program; the Ministerial Capacity Development Program; the Regime Crimes 

Liaison Office; the Elections Support Program; and the Monitoring and Evaluation Program, see APPENDIX 

III, supra note 48. 57 See News Release, supra note 51. 

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2. Afghanistan 

In Afghanistan, the DOS and USAID are focusing effort on improving governance and the ROL 

through increased resources. To this end, “ESF programs support counter-terrorism; bolster national 

economies; and assist in the development of effective, accessible, independent legal systems for a 

more transparent and accountable government.”58 As of December 2010, cumulative funding for 

ESF amounted to more than $11.14 billion.59 The DOS has requested an additional $1.58 billion in 

ESF funding for Afghanistan for FY12 Supplemental Appropriations to fund the following foreign 

assistance objectives: Governing Justly and Democratically (including Rule of Law and Human 

Rights, Good Governance, Political Competition and Consensus-Building, and Civil Society); 

Investing in People (Including Health, Education, and Social and Economic Services and Protection 

for Vulnerable Populations; and Economic Growth (including Macroeconomic Foundation for 

Growth, Trade and Investment, Financial Sector, Infrastructure, Agriculture, Private Sector 

Competitiveness, Economic Opportunity, and Environment). Specifically, DOS has requested $35.2 

million for ROL and human rights activities, and $789.1 million for Good Governance programs.60 

B. Bureau of International Narcotics and Law Enforcement Affairs 

The DOS has statutory authority to “furnish assistance to any country or international organization ... 

for the control of narcotic and psychotropic drugs and other controlled substances, or for other 

anticrime purposes.”61 Congress appropriates funds for these purposes on an annual basis in the 

FOAA, the annual appropriations act for the DOS, under the International Narcotics Control and Law 

Enforcement (INCLE) account. For the conflicts in Iraq and Afghanistan, Congress has provided 

additional funds as well through supplemental appropriations. Notably, INCLE funding supports 

multiple countries in anti-narcotic and anti-crime efforts, not just in Iraq and Afghanistan. 

Although one of the primary purposes of INCLE funds is counter-narcotics, Congress has also 

authorized the use of INCLE funds “for other anticrime purposes.”62 This broad purpose mandate 

allows INCLE to be used for a majority of ROL activities, since many of these operations are 

generally intended to decrease crime in some fashion. 

The mission of the DOS’s Bureau of International Narcotics and Law Enforcement Affairs (INL) is 

to: 

Minimize the impact of international crime and illegal drugs on the United States, its citizens, and 

partner nations by providing effective foreign assistance and fostering global cooperation. This 

mission, which centers on helping our partner nations establish a capable and accountable 

criminal justice sector, was expanded during the past decade to include stabilizing post-conflict 

societies through criminal justice sector development and reform. The bureau supports the State 

Department Goal of Peace and Security by stabilizing and strengthening security institutions to 

build a global security capacity and by combating narcotrafficking and other transnational crimes 

such as money laundering and criminal gangs. The bureau supports the State Department goal of 

58 See SIGIR, supra note 47. 

59 Id. 60 See U.S. DEP’T OF STATE, Fiscal Year 2012 Foreign Operations Congressional Budget Justification Annex: 

Regional Perspectives, at 603, available at http://www.state.gov/documents/organization/158268.pdf (last 

visited April 22, 2011). 

61 22 U.S.C. § 2291 (4) (emphasis added). 62 Id. See also Pub. L. No. 104-164, 110 Stat. 1429 (1996) (amending the Foreign Assistance Act to broaden 

International Narcotics Control Assistance). 

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Governing Justly and Democratically by strengthening justice sector institutions, good 

governance and respect for human rights.63 

In FY2010, Congress appropriated $1.6 billion to the INCLE account in the Consolidated 

Appropriations Act, 2010,64 available until September 2011, and an additional $1.12 billion in the 

Supplemental Appropriations Act, 2010,65 available for obligation until September 2012. For FY 

2011, Congress has appropriated $1.6 billion to the INCLE account, available for obligation until 

September 2012.66 Among the programs funded by INL in Afghanistan are the Judicial Sector 

Support Program,67 the Corrections System Support Program, the Senior Federal Prosecutors 

Program, and a Legal Education program.68 

Use of FY2010 INCLE funds on rule of law projects provides a snapshot of INCLE fund versatility. 

Congress appropriated to the INCLE fund $155 million for administration of justice programs in 

Afghanistan. This funding is being spent on capacity building support for the Ministry of Justice, 

Attorney General’s Office, Supreme Court, and Ministry of Women’s Affairs. Programs also include 

training courses for police investigators, prosecutors, judges, defense attorneys, and corrections 

officers. Specialized support is going to the Independent National Legal Training Center and nongovernmental organizations supporting the provision of defense attorneys to the poor and emergency 

shelter services to female victims of violent crime. INL programs fund a case management system to 

bring greater efficiency and transparency to the entire criminal justice process. INL also funds 

programs to combat major crime such as corruption and narcotics and supports a Judicial Security 

Unit. Corrections development programs include mentoring and capacity building at the headquarters 

and facility level, salary support through an international trust fund, construction and renovation of 

correctional facilities, and targeted support for vulnerable populations within the prison system. 

Using 2010 funds, INL is also supporting Afghan law schools through a visiting scholar program 

where law professors undertake graduate level and clinical work in the U.S. and U.S. professors 

support reform in Afghan law schools. INL also partners with the military to provide mentoring and 

physical facility support to prosecutors, judges, investigators, and defense attorneys working to 

transition battlefield detainees into the civilian criminal system. 

INL has also received funding from DOD’s ISFF and ASFF appropriations via IAs and interagency 

transfer of funds. As of May 2010, DOD had transferred approximately $2.1 billion in ISFF funds to 

the INL for police advisors and support since the enactment of the ISFF in fiscal year 2005.69 

Beginning on October 1, 2011, DOS and INL will assume full responsibility for the current DOD 

(USF-I) police training program in Iraq.70 As previously noted, it will be essential for ROL 

practitioners to be aware of the current status of programs and funding during these transitions in Iraq. 

IV. Department of Defense Appropriations for Rule of Law Operations 

Recall that the general rule in operational funding is that the DOS, and not DOD, funds Foreign 

Assistance. Rule of law activities will generally be classified as Foreign Assistance, and therefore 

63 See Bureau of International Narcotics and Law Enforcement Affairs, Frequently Asked Questions, 

http://www.state.gov/p/inl/faqs/index.htm (last visited April 25, 2011). 64 Pub. L. No. 111-117, 123 Stat. 3034, 3335 (2009). 

65 Pub. L. No. 111-212, 124 Stat. 2302, 2324 (2010). 

66 Pub. L. No. 112-10 (2011). 

67 For more information on the Judicial Sector Support Program, follow the URL in Table 2 of the Appendix.
 68 CONGRESSIONAL RESEARCH SERVICE, R41484, Afghanistan: U.S. Rule of Law and Justice Sector Assistance 

28-34 (Nov. 9, 2010). 

69 Bureau of International Narcotics and Law Enforcement Affairs Fact Sheet, Police Programs: Iraq (May 11, 

2010), http://www.state.gov/p/inl/rls/fs/141756.htm (last visited April 26, 2011). 70 SIGIR, supra note 47.
 

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should be funded by DOS unless one of the two exceptions applies. When considering the fiscal 

aspects of ROL activities, the second exception is the focus for the advising JA. 

The second exception to the operational funding general rule that DOS funds Foreign Assistance is 

that DOD may fund Foreign Assistance operations if Congress has provided a specific appropriation 

and/or authorization to execute the contemplated mission. Therefore, ROL activities may be funded 

with DOD appropriations if Congress has provided a specific appropriation, or an authorization to 

access an appropriation, for the ROL operation contemplated by the command. 

The DOD has three appropriations available to it that have acquired a primary role in funding ROL 

activities by PRTs and, previously in Iraq, the “embedded” Provincial Reconstruction Teams 

(ePRTs). These three appropriations are: the ISFF, the ASFF, and the CERP fund. In addition to 

these three congressional appropriations, Iraqi-funded Commander’s Emergency Response Program 

(I-CERP) has also played a key role in funding ROL activities in Iraq. Each of these funding 

mechanisms is discussed in greater detail below. 

As previously noted in the section describing DOS funding for ROL activities in Iraq, the drawdown 

of U.S. forces in Iraq brings with it significant organizational transitions. Rule of law practitioners 

must ensure that they conduct appropriate research and coordination, as the programs and 

organizations described in this section may change rapidly. 

A. Afghanistan Security Forces Fund / Iraq Security Forces Fund 

Congress created two appropriations, the ASFF and the ISFF, on May 11, 2005, to enable the DOD to 

“train and equip” the security forces of Afghanistan and Iraq, respectively.71 Congress initially 

appropriated $1.285 billion for the ASFF and $5.7 billion for the ISFF, to remain available for new 

obligations until Sept. 30, 2006.72 Since fiscal year 2005, Congress has generally appropriated 

ISFF/ASFF funds on a yearly basis with a period of availability of two years. Most recently, 

Congress appropriated an additional $11.6 billion for the ASFF and $1.5 billion for the ISFF, 

available for obligation until September 2012.73 The ASFF is available to the SECDEF “for the 

purpose of allowing the Commander, Combined Security Transition Command-Afghanistan, or the 

Secretary’s designee, to provide assistance, with the concurrence of the Secretary of State, to the 

security forces of Afghanistan, including the provision of equipment, supplies, services, training, 

facility and infrastructure repair, renovation, and construction, and funding[.]”74 The purpose 

language accompanying the ISFF is very similar, although the applicable command authority for 

ISFF is currently United States Forces-Iraq, and “construction” and “funding” are not among its 

specifically delineated purposes.75 

For the ROL practitioner, minor differences such as those between the ISFF and ASFF could be key, 

and how they come about reflects the need to track changes to statutory authorizations and 

appropriations. The original purpose of both the ASFF and ISFF included facility repair and 

construction, but in the FY09 National Defense Authorization Act (NDAA) Congress specifically 

prohibited obligating or expending ISFF for “acquisition, conversion, rehabilitation, or installation of 

71 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 

Act, 2005, Pub. L. 109-13, 119 Stat. 231, 235-237 (2005). Prior to the creation of the ASFF and ISFF, 

Congress authorized the training and equipping of forces in Iraq and Afghanistan from O&M accounts. At the 

onset, only the New Iraqi Army and the Afghan National Army could receive support. Later authorizations 

expanded the statutory language to include “security forces.” Compare Pub. L. No. 108-106 with Pub. L. No. 

109-13. 

72 Id. 73 Pub. L. No. 112-10 (2011). 

74 Id. 75 Id. 

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facilities in Iraq for the use of the Government of Iraq....”76 As noted in Senate committee report 

language, “the committee believes the Iraqi Government is well able to afford to finance its own 

infrastructure needs at this point.”77 This illustrates the precept that, because so much of operational 

funding is dependent upon the political, economic, and security situation in a given environment, 

ROL JAs must stay current on fiscal law issues. 

The ISFF and ASFF appropriations do not specifically define what forces are considered to be the 

“security forces” of Iraq or Afghanistan. DOD has typically defined the term “security forces” to 

include, however, both military and police forces under the direct control of the governments of Iraq 

and Afghanistan.78 This determination is based on DOD budget request submissions to Congress that 

identify both the military and police forces that will be trained and equipped using ISFF and ASFF.79 

Generally, however, the ISFF and ASFF may not be used to fund police forces that are not under the 

direct control of the governments of Iraq and Afghanistan.80 The Department of Defense had also, as 

of May 2010, transferred approximately $2.1 billion in ISFF funds to the INL for police advisors and 

support since the enactment of the ISFF in fiscal year 2005.81 

B. Commander’s Emergency Response Program 

The second major statutory authorization that allows DOD to fund many ROL activities is the 

Commander’s Emergency Response Program. CERP is a statutory authorization to obligate funds 

from DOD Operations and Maintenance (O&M) appropriations82 for the primary purpose of 

authorizing U.S. military commanders “to carry out small-scale projects designed to meet urgent 

humanitarian relief requirements or urgent reconstruction requirements within their areas of 

responsibility” that provide an “immediate and direct benefit to the people of Iraq or Afghanistan.”83 

76 Pub. L. No. 110-417, §1508 (2008). See also Pub. L. No. 111-383, § 1533 (2011).
 77 S. Rep. No. 110-335, at 428 (May 12, 2008). 

78 The following security forces are considered to be under the “direct control” of the Government of Iraq (and
 

the equivalent forces for the Government of Afghanistan), and may therefore be funded with ISFF and ASFF, 

respectively: Ministry of Defense Activities (including the Army, Navy, Air Force, and Intelligence Service); 

Ministry of Interior activities (including the Iraqi Police Service, National Police, Intelligence Agency, Facility 

Protection Service, Dept. of Border Enforcement, and Dir. of Ports of Entry); Iraqi Special Operations Forces, 

and; Iraqi Corrections Service Officers of the Ministry of Justice. 

79 DOD budget request documentation typically breaks down funding into separate budget activities for 

“defense” forces (e.g., the Army), “interior” forces (the policy), and other activities. See, e.g., Office of the 

Secretary of Defense, Department of Defense Budget Fiscal Year (FY) 2012, Justification for FY 2012 Overseas
 

Contingency Operations Afghanistan Security Forces Fund (ASFF), (Feb. 2011) available at
 

http://asafm.army.mil/Documents/OfficeDocuments/Budget/BudgetMaterials/FY12/OCO//asff.pdf (last visited
 

April 25, 2011). 

80 The following “security forces,” for example, are NOT considered to be under the “direct control” of the 

Government of Iraq (and any equivalent forces for the Government of Afghanistan), and may therefore 

generally NOT be funded with ISFF and ASFF, respectively: Concerned Local Citizens (also known as “Sons 

of Iraq”), Kurdish Peshmerga, and Iraqi Civil Defense Corps. Additionally, the following Iraqi forces are under 

the control of the GoI, but are not considered to fall within the definition of “security forces”: Iraqi Firefighters
 

of the Ministry of Interior’s Objective Civil Security Forces, and the Iraqi Railroad Police. 81 Bureau of International Narcotics and Law Enforcement Affairs Fact Sheet, Police Programs: Iraq (May 11, 

2010), http://www.state.gov/p/inl/rls/fs/141756.htm (last visited April 26, 2011). 82 The actual funds available for CERP are from the Operations and Maintenance, Army (OMA) appropriation.
 

See Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10 (2011).
 83 Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1212, 124 Stat. 

4137, 4391 (2011). 

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The CERP authorization for FY 2011 is $500 million, contained in the 2011 NDAA, of which $400 

million is specific for Afghanistan and $100 million for Iraq.84 

In addition to the broad purpose of CERP, Congress has also authorized the Secretary of Defense to 

“waive any provision of law not contained in this section that would (but for the waiver) prohibit, 

restrict, limit, or otherwise constrain the exercise of that authority.”85 The Secretary or Deputy 

Secretary of Defense have routinely waived various statutes that would limit the execution of CERP, 

including the Competition in Contracting Act (CICA) and the Foreign Claims Act (FCA).86 The 

combination of the broad statutory purpose of CERP, the low-level approval authority to authorize the 

use of CERP,87 and the waiver of CICA and the FCA, has provided military commanders with an 

incredibly flexible authorization to conduct Humanitarian Assistance operations outside of 

Department of State Foreign Assistance funding channels and restrictions.88 

CERP, however, is restricted to the “urgent humanitarian needs” of the Iraqi and Afghan people and 

may therefore not be used to fund the military and police forces under the direct control of the 

governments of Iraq and Afghanistan.89 As a result, CERP funds are restricted to ROL activities that 

target the “urgent humanitarian needs” or “urgent reconstruction requirements” of the Iraqi and 

Afghan populations, and may generally not be used for any ROL security operations with forces 

under the direct control of the governments of Iraq or Afghanistan.90 Prior to advising units on the 

legality of using CERP funds to execute any ROL activity, JAs should scrutinize the statutory and 

policy restrictions outlined in the Money As A Weapon System (MAAWS) SOPs (there are versions 

for both Iraq and Afghanistan) and the most recent DOD Comptroller’s CERP policy guidance in the 

DOD Financial Management Regulation (DOD FMR).91 

A recent development in CERP-funded ROL projects concerns the distinction between construction 

and reconstruction of facilities. Slight changes in policy guidance between 2008 and 2009 raised 

84 Id. 85 See, e.g., 2005 NDAA, Pub. L. 108-375, § 1202 (Oct. 28, 2004), as amended by 2008 NDAA, Pub. L. No. 

110-181, § 1205, 2009 NDAA, Pub. L. No. 110-41,7 § 1214, 2010 NDAA, Pub. L. No. 111-84, § 1222, and 

2011 NDAA, Pub. L. No. 111-383, § 1212. (Emphasis added).

86 See, e.g., Memorandum from the Honorable William J. Lynn, Deputy Secretary of Defense, to the Secretaries 

of the Military Departments, et. al, subject: Waiver of Limiting Legislation for Commander’s Emergency 

Response Program (CERP) for FY 2010 (May 24, 2010), available at 

http://www.oaa.army.mil/FetchFile.ashx?DocID=350 (last visited Apr. 26, 2011). 87 2005 NDAA, Pub. L. 108-375, Section 1201 (Oct. 28, 2004). The CERP authorization allows “military 

commanders” to authorize the obligation of CERP funds. Military commanders include company commanders, 

generally the rank of a U.S. Army Captain. This statutory low-level approval authority, however, has generally 

been limited to higher ranks by DOD policy. 

88 As a result of the waiver of CICA for CERP, for example, CERP-funded projects need not adhere to the 

competition requirements of the Federal Acquisition Regulation (FAR). This waiver led directly to the 

development of the “Iraqi First” and “Afghan First” acquisition programs, which indirectly provided numerous 

Iraqis and Afghans jobs by restricting CERP-funded acquisitions to Iraqi and Afghan contractors. The waiver 

of the FCA allows CERP to fund condolence payments and battle damage claims that are normally barred by 

the FCA when the injuries and/or damages occur during combat operations. 

89 See, e.g., Department of Defense Appropriations Act for Fiscal Year 2006, Section 9007, Pub. L. 109-148 

(CERP funds “may not be used to provide goods, services, or funds to national armies, national guard forces, 

border security forces, civil defense forces, infrastructure protection forces, highway patrol units, police, special 

police, or intelligence or other security forces”). 

90 Id. 91 See Money As A Weapons System (MAAWS), Multi-National Corps – Iraq, USF-I J8 SOP, Mar. 1, 2010 (on 

file with author); MAAWS-Afghanistan, USFOR-A Pub. 1-06, Commander’s Emergency Response Program 

(CERP) SOP, February 2011 (on file with author); see also DOD FMR, vol. 12, ch. 27 (January 2009); see also 

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, OPERATIONAL LAW HANDBOOK 241-242 

(July 2010). 

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concerns about a possible limitation on building ROL facilities “from the ground up” in Afghanistan. 

(In Iraq, this was not an issue because there were existing structures and Iraq reconstruction efforts 

had been robust for several years.) The most current version of the DOD FMR no longer includes the 

concept of “build” and instead focuses on “reconstruction” and “restore.”92 This focus on 

reconstruction does not, however, limit efforts to restore “preexisting elements of Afghan society, 

such as ROL, if the projects are otherwise in accordance with CERP guidance.”93 This does require 

high level approval authority.94 Judge advocates should ensure that they have the most current 

guidance on ROL facility construction. 

C. Iraqi Funded Commander’s Emergency Response Program 

On 3 April 2008, Multi-National Force – Iraq (MNF-I) and the Iraqi Supreme Reconstruction Council 

(I-SRC) signed a Memorandum of Understanding (MOU) which authorized MNF-I units to execute 

an Iraqi-funded reconstruction program modeled after (U.S. funded) CERP, named the Government 

of Iraq CERP (I-CERP).95 I-CERP was initially funded with $270 million from the Government of 

Iraq, with an additional $30 million subject to transfer to the I-CERP upon the approval of the ISRC.96 Although similar to CERP in purpose, the I-CERP has significant differences of which JAs 

need to be aware. The purpose of I-CERP is for coalition force commanders to execute urgent 

reconstruction projects for the benefit of the Iraqi people in the fifteen non-Kurdish provinces of 

Iraq.97 Under the same monetary approval authorities as CERP, commanders in Iraq may authorize 

the use of I-CERP to repair or reconstruct the following four types of infrastructure projects: water 

purification plants, health clinics, and city planning facilities (including the planning facilities owned 

by the Government of Iraq, the provincial governments, and the local governments).98 By exception, 

and upon the approval of the Major Subordinate Commanding General, I-CERP may also be used to 

repair and reconstruct: roads, sewers, irrigation systems, and non-reconstruction projects that promote 

small business development.99 The initial intent of I-CERP was for the Iraqis to match the 

reconstruction funding of CERP in Iraq.100 I-CERP has become increasingly important as Congress 

intends for the government of Iraq to assume all financial responsibility and phase out the use of 

CERP.101 One fiscal law issue raised by I-CERP involved the Miscellaneous Receipts Statute. Recall 

that an agency must deposit funds it receives into the U.S. Treasury General Account, unless 

92 DOD FMR, vol 12, ch. 27, para. 270103D. 

93 Commander, United States Central Command, Memorandum to Undersecretary of Defense, subject: 

Commander’s Emergency Response Program (CERP) Waiver Guidance Request (June 11, 2009) (on file with
 

author).

94 Id. 

95 Memorandum of Understanding Between Supreme Reconstruction Council of the Secretariat of the Council
 

of Ministers and the Multi-National Force – Iraq, Concerning the Implementation of the Government of Iraq
 

Commanders’ Emergency Response Program (I-CERP) [hereinafter I-CERP MOU], agreed to and signed by
 

MNF-I on 25 March 2008 and by I-SRC on 3 April 2008 (on file with author). 

96 Id. at 3.
 97 Money As A Weapons System (MAAWS), Multi-National Corps – Iraq, Combined Joint Staff Resource 

Management Standard Operating Procedure (MNC-I CJ8 SOP) (26 January 2009), Appendix C: I-CERP (on
 

file with author). 

98 Id. 99 Id. 100 I-CERP MOU, supra note 95 at 2.
 101 Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, § 1214(e), 

122 Stat. 4356, 4630-4632 (2008) (stating “[i]t is the sense of Congress that the Government of Iraq should 

assume increasing responsibility for funding and carrying out projects currently funded by the United States 

through the Commanders’ Emergency Response Program...”).
 

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Congress authorizes otherwise. With respect to I-CERP, Congress has indicated that it does not 

consider I-CERP funding to be an illegal augmentation.102 

V. Funding Rule of Law Through Provincial Reconstruction Teams 

To access the appropriations and authorizations available for stability and ROL operations, advising 

JAs will need to understand the basic strategy and structure of the PRTs. Provisional Reconstruction 

Teams currently exist only in Iraq and Afghanistan, and will be phased out in Iraq by the end of 2011, 

but may well provide a model for future civil-military operations worldwide. 

A. Provincial Reconstruction Teams and Embedded Provincial 

Reconstruction Teams 

Provincial Reconstruction Teams103 are civil-military organizations (CMOs) that are staffed by U.S. 

government (USG) civilian and military personnel to assist foreign provincial governments with their 

reconstruction efforts; their security and ROL efforts; and their political and economic 

development.104 PRTs were first deployed in Afghanistan in 2002; the PRTs in Afghanistan 

generally number between fifty and one hundred members, including a force protection element for 

the primary interagency PRT staff.105 The success of the PRTs in Afghanistan led the USG to 

incorporate the PRT concept into its new stability and reconstruction strategy.106 PRTs were first 

established in Iraq in November 2005. PRTs in Iraq and Afghanistan provide their own force 

protection, but the PRTs in Iraq have a smaller force protection element since they are generally colocated with large coalition Forward Operating Bases (FOBs) which provides some of the needed 

force protection.107 

Embedded Provincial Reconstruction Teams were a second type of PRT formed in Iraq as part of the 

“surge” in early 2007. They were directly assigned to Army Brigade Combat Teams (BCTs) or 

Marine Corps Regiments (MCRs), who provide the ePRTs’ force protection.108 As a result, ePRTs 

were staffed solely by the primary interagency civil-military staff and were significantly smaller.109 

Unlike PRTs, who report directly to their respective embassies, ePRTs reported to the military 

commander of the BCT or MCR to which they were assigned.110 The ePRTs, however, generally 

conduct the same types of missions as PRTs, possibly on a slightly smaller scale. 

Both PRTs and ePRTs in Iraq were led by the Department of State Foreign Service Officer assigned 

to the PRT/ePRT, but they tended to fund operations differently due to their structural differences. 

102 Id. 103 See generally, Timothy Austin Furin, Legally Funding Military Support to Stability, Security, Transition, 

and Reconstruction Operations, ARMY LAW. (Oct. 2008) (providing a comprehensive overview of the strategic 

development of the PRT concept, its central role in executing the U.S. government’s pre- and post-conflict 

stabilization and reconstruction strategic policies, and the significant fiscal law challenges faced by the PRTs in 

legally funding stabilization and reconstruction missions worldwide).

104 See Furin, supra; see also PRT (Provincial Reconstruction Teams) Fact Sheet, U.S. Embassy, Iraq (Sept. 15, 

2009), http://iraq.usembassy.gov/iraq_prt/provincial-reconstruction-teams-fact-sheet.html (last visited July 21, 

2010); NIMA ABBASZADEH ET AL., PROVINCIAL RECONSTRUCTION TEAMS: LESSONS AND RECOMMENDATIONS 4 

(Jan. 2008), available at http://wws.princeton.edu/research/pwreports_f07/wws591b.pdf (last visited July 21, 

2010). 

105 See Furin, supra note 103, at 43.
 106 Id. at 42. 107 Id. at 44. 108 Id. at 45. 

109 Id. 110 Id. 

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PRTs tended to have greater access to DOS appropriations like the Economic Support Fund (ESF), 

the INCLE, and INL. PRTs tended to access DOD appropriations and authorizations like CF-CERP 

as a supplement to the DOS funds that they receive.111 The ePRTs reversed the funding model of 

PRTs by funding the large majority of their operations with DOD appropriations like CF-CERP and 

accessing DOS appropriations as a supplement.112 As previously noted, ePRTs have been phased out 

in Iraq, and all remaining PRTs are scheduled to close or be transformed into new organizations 

during 2011.113 

PRTs in Afghanistan are led by both the United States and various International Security Assistance 

Force (ISAF) coalition partners.114 The U.S.-led PRTs in Afghanistan have a military commander, 

unlike those in Iraq which are led by civilian partners, but military commanders do not command 

non-DOD civilians.115 

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

Regardless of what type of civil-military organization (CMO) funds a ROL activity, whether a PRT, 

an ePRT, or any other CMO outside of Iraq or Afghanistan, advising JAs (JAs) must understand the 

basic fiscal restrictions for the fund(s) contemplated to execute the mission, with a primary focus on 

the basic purpose of each appropriation. As the discussion of DOS funds and DOD funds indicates, 

each fund has different Purpose, Time, and Amount restrictions. 

Due to the dramatically increased Operational Tempo (OPTEMPO) in ROL activities, the PRT, 

ePRT, or CMO normally requires the appropriate funds faster than the DOS may be able to provide 

them. As a result, the unit should coordinate with the deployed DOS Political Advisor (POLAD) 

located at the Combined Joint Task Force (CJTF), or division level, as early as possible in the 

planning stages. The unit may also coordinate with the DOS Foreign Officers located at the PRTs. 

In advising their Units, JAs should be aware of the cultural, structural, and procedural differences 

between DOD and DOS.116 DOD has the cultural and structural capability to plan for operations far 

in advance via MDMP. DOS, on the other hand, generally has neither the structural capability nor the 

organizational culture that would allow it to plan for operations as far in advance or with such 

detailed specificity as DOD. These structural differences between DOD and DOS may affect the 

speed with which the DOS may be able to provide its appropriated funds for ROL activities. 

111 Id. at 47. 112 Id. 113 See supra, note 50. 114 STAFF OF HOUSE ARMED SERVICES SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS, 110TH CONG., AGENCY 

STOVEPIPES VERSUS STRATEGIC AGILITY: LESSONS WE NEED TO LEARN FROM PROVINCIAL RECONSTRUCTION
 

TEAMS IN IRAQ AND AFGHANISTAN 13 (Comm. Print 2008), available at: 

http://democrats.armedservices.house.gov/index.cfm/files/serve?File_id=20ca518e-0183-433f-be5a7e872dbc41b7 (last visited April 26, 2011). 115 Id. 116 See Rosemary Hansen, “Defense is from Mars, State is from Venus: Improving Communications and 

Promoting National Security,” U.S. Army War College Strategy Research Project (1998). 

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CHAPTER 7 

THEATER-SPECIFIC INFORMATION ON RULE OF LAW: 

AFGHANISTAN AND IRAQ 

This Handbook is intended to be more than simply a narrative on ROL in Iraq or Afghanistan. That said, this 

chapter unashamedly focuses on exactly those two theaters of operation. Both have undergone significant 

change since the 2010 edition of the Handbook. 

I. Afghanistan 

A. Overview 

It is difficult to exaggerate the difficulties that confront the development of the ROL in Afghanistan. 

Afghanistan is a poor, mountainous country with bad communications. Its people are from a patchwork of 

ethnic groups with a preference for identifying themselves by their racial and tribal backgrounds rather than 

by their nationality. Local warlords are able to assert their independence from the central government, and 

corruption is widespread. War and political upheaval have bedeviled Afghanistan for decades. British Army 

veteran and Afghan commentator Rory Stewart reminds us that “every Afghan ruler in the 20th century was 

assassinated, lynched or deposed.”1

 This is unpromising soil in which to grow the ROL. Yet, for all these 

challenges, the Afghan people have a hunger for the ROL, a concept that is deeply engrained in their 

profound attachment to Islam and the tenets of Sharia. Rule of law practitioners in Afghanistan can attest to 

the presence of many Afghans of all generations with dedication and willingness to sacrifice much in order to 

improve ROL institutions in this beleaguered country. 

American civil and military efforts have not always been consistent or synchronized. In the past year, the 

U.S. Government has initiated a number of significant changes to ROL efforts. Key players and activities 

are rapidly evolving as the Afghan government and international community strive to achieve positive 

change in the nation’s ROL institutions. This trend will probably continue through 2011 and 2012 as the 

Afghan government and coalition prepare for transition. The insurgents will continue to subvert this process. 

Thus, readers may find that organizational structures and key plans will have changed by the time they 

deploy to Afghanistan. With this in mind, this chapter of the Handbook provides a snapshot of a fluid and 

ever-changing series of organizational structures that reflect senior government and military leaders’ 

commitment to strengthening Afghan ROL and achieving strategic change for the benefit of the Afghan 

people and the long term stability of the region. 

B. The Plans for Rule of Law 

There are a number of key documents that provide plans and guidance for ROL efforts in Afghanistan. The 

primary strategic plan for ROL development in Afghanistan is the Afghan National Development Strategy 

(ANDS).2 The ANDS consists of a variety of plans for different “sectors” (such as agriculture, education, 

health, water, etc.); the plan for ROL is one of the sectors nested within the ANDS. The specific document 

1

 Rory Stewart, Afghanistan: A War We Cannot Win, THE TELEGRAPH (July 10, 2009, 7:00 PM BST), 

http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/5797197/Afghanistan-a-war-we-cannot-win.html (last 

visited Aug. 22, 2011). 

2

 Government of the Islamic Republic of Afghanistan, Afghanistan National Development Strategy, 

http://www.embassyofafghanistan.org/documents/resume_ANDS.pdf (last visited Aug. 22, 2011) [hereinafter ANDS]. 

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outlining the ROL sector is the National Justice Sector Strategy (NJSS),3

 which, in turn, contains the 

National Justice Program (NJP). The NJP is the fundamental document used by the international donor 

community to explain the development of the ROL in Afghanistan over a five year time frame. It attempts to 

describe the effects that must be achieved in order to establish ROL in this environment. The document 

reflects an almost herculean effort to gain consensus amongst the Afghan and international ROL community 

stakeholders. It also reflects a policy decision at senior national leadership levels to commit resources and 

effort to the stated goals. President Karzai approved the ANDS on 21 April 2008.4 

The NJP has six justice components:5 

•	 Effectively organized and professionally staffed, transparent and accountable justice institutions. 

•	 Sufficient infrastructure, transportation, equipment and supplies adequate to support the effective 

delivery of justice services. 

•	 Justice professionals adequately educated and trained with sufficient know-how to perform their tasks. 

•	 Clearly drafted constitutional statutes produced by a consultative drafting process. 

•	 Coordinated and cooperative justice institutions able to perform their functions in a harmonized and 

interlinked manner. 

•	 Awareness amongst citizens of their legal rights and how to enforce them. 

In theory, if these six components are all in place, the ROL should exist in Afghanistan. Listing the 

components in this way is a useful guide, but it is necessarily over simplistic. For instance, the list does not 

provide any guidance as to relative importance to be attached to each component. Infrastructure, for 

example, is not necessarily a very important component. Far more important is the quality of the people 

serving the system: justice systems have operated effectively with good people working in bad facilities. But 

the quality of people is hard to measure, and people take time to develop. In comparison, the construction 

and counting of buildings is easy. There is consequently a temptation to focus on infrastructure, a relatively 

easy and straightforward “metric,” as opposed to people, who are messy and hard to quantify in any 

meaningful way. 

The NJP aims to be a comprehensive statement of the requirements for the ROL in Afghanistan. It 

establishes an end state, defines performance indicators, and outlines methods for monitoring and 

evaluation.6 

3

 Government of the Islamic Republic of Afghanistan, Justice & Rule of Law Sector Strategy (Mar. 2008), 

http://www.idlo.int/english/Resources/ROL/JusticeAndRuleOfLawSectorStrategies/Pages/..%5CNJSDocs%5CAfghCombined%20NJSS-NJP.pdf [hereinafter NJSS]. Confusingly the document is also entitled the “Justice and Rule of 

Law Sector Strategy,” the title that appears on the cover of its English translation. NJSS is the more commonly used 

title that was agreed at the Rome Conference of July 2007. NJSS is the title that will be used here. Variations in 

language between documents that are translated into English from their native Dari or Pashtu are common. 4

 The critical observer might be forgiven for asking why it took almost seven years from the date of the establishment of 

an Interim Afghan government by the Bonn Agreement, to establish a strategy for developing Afghanistan. The answer 

to that question is beyond the scope of this section; suffice it to say that there is wisdom in the frequently repeated 

truism that the development of rule of law in Afghanistan is a “work of decades, not years.” 5

 Note that the NJP places policing in a security - rather than a justice - line of operation. This has the unfortunate effect 

of dividing the efforts of rule of law practitioners since organic rule of law practitioners only focus on the Ministry of 

Justice, the Attorney General’s Office, and the Supreme Court. The police are the responsibility of Combined Security 

Transition Command – Afghanistan (CSTC-A). The U.S. Embassy is aware of the potential for incoherence that this 

brings and is working to rectify it. 

6

NJSS, supra note 3. The responsibility for oversight is shared between the Program Oversight Committee (POC) and 

the Board of Donors (BoD). The first joint meeting between the POC and the BoD was held on 14 May 2009. 

Coordinating work on the NJP is unusually complicated because it involves so many different groups. These include: 

U.S.A; UK; Italy; Germany; Canada; NGOs; the World Bank (the Afghanistan Reconstruction Trust Fund); IDLO; 

ISISC; UNDP; UNODC; UNICEF; and UNIFEM. 

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In 2010, the international community and Afghan government further modified the ANDS by adopting the 

“Priority and Implementation Plan 2010-2013 (PIP).” The PIP establishes new Strategic Objectives for the 

ANDS for governance efforts. To further implement this, the Afghan government has developed six new 

National Priority Programs (NPPs). National Priority Program #5 is entitled National Program for Law and 

Justice for All. This NPP is still being finalized as of the writing of this handbook. 

In addition to this effort to update the ANDS, the Afghan government has worked closely with NATO to 

define how security transition will proceed over the next few years. This process is called “Inteqal” which is 

Dari and Pashto for “transition.” The Joint Afghanistan-NATO Inteqal Board (JANIB) process helps the 

Afghan government and the ISAF coalition to collaboratively define the conditions for transition of security 

responsibilities for a specific territorial area from ISAF to Afghanistan’s security and police forces. As the 

JANIB process assesses provinces, all parties agree on specific provinces or municipalities to transition. 

Rule of law figures prominently in this plan. There are assessment tools being developed in the JANIB 

process that should be considered as ROL practitioners continue their work. 

The U.S. Embassy adopted the U.S. Government Rule of Law Strategy in November 2010. This document is 

the result of several years of effort to develop a plan that was acceptable to all stakeholders on the Kabul 

country team and that would be approved by the interagency experts and policy makers in Washington. This 

national strategy was also written to support the ANDS, the NJSS, and the NJP. The objectives of the 

Strategy are to focus U.S. ROL assistance in Afghanistan on constructive programs that will offer Afghans 

meaningful access to fair, efficient, and transparent justice based on Afghan law while helping to eliminate 

the reach and influence of Taliban “justice.” It also intends to increase the legitimacy of the Afghan 

government by promoting a culture that values the ROL. The Strategy recognizes that the U.S. has no goal 

to replace traditional justice systems or to impose an alien western style justice system. 

The U.S. Embassy is working closely with ISAF in order to maximize civil agency and military command 

cooperation. The U.S. Embassy and COMISAF/COMUSFOR-A published the U.S. Government Integrated 

Civilian-Military Campaign Plan for Support to Afghanistan in August 2009, and they revised it in February 

2011.7

 This attempt to replicate similar planning conducted in Iraq a few years previously sought to provide 

clear guidance how the military, diplomatic, and development assets in Afghanistan should work 

cooperatively in the effort to secure and stabilize the country. With the JANIB process and U.S. Government 

transition efforts rapidly evolving, the U.S. Embassy and military commands are working very hard to 

develop similar guidance to allow all to take a reasoned and methodical approach to security transition over 

the next few years. 

The U.S. and coalition military commands in Afghanistan have considered or issued plans for ROL efforts 

within their areas of responsibility. For example, Regional Command (East) (RC(E)8

) has placed a Rule of 

Law Annex in its campaign plan for the past several years. The 2008 Rule of Law Annex was written by 

selecting those NJP components the military could advance. The 2010 Annex incorporated elements of the 

draft U.S. Government Rule of Law Strategy. An important underlying assumption was that the lead in ROL 

development is the civilian international and interagency community, and military efforts support the civilian 

led effort. For instance, the organization of—and coordination between—justice institutions, and the 

drafting of legislation are not issues that can be addressed from the tactical RC(E) level. These are strategic 

and operational challenges may best be overcome by the ministries in Kabul advised and mentored by 

civilian specialists. Accordingly the 2010 RC(E) annex prioritized efforts at District level in order to achieve 

the following: (1) linking the formal and informal justice sectors; (2) increasing public confidence and 

7 Available at http://thesimonscenter.org/wp-content/uploads/2011/02/ICMCP_Feb_2011final.pdf. 8

 One of five “cardinal” ISAF regional HQs in Afghanistan and, before the U.S. surge into RC(S) in the Spring of 2009, 

the main U.S. AO. Regional Command (East) surrounds Kabul and abuts against the lawless and Taliban-dominated
 

Khyer-Pakhtun Khwa Province and Federally Administered Tribal Area of Pakistan. Regional Command (East) 

consists of the following provinces: Parwan, Panjshir, Kapisa, Nuristan, Laghman, Konar, Nangarhar, Logar, Paktya, 

Khowst, Paktika, Ghazni, Wardak and Bamyan.
 

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awareness in the Justice system; (3) building human capacity in the Justice system; (4) building infrastructure 

and providing transportation and other supplies for the courts and other Justice institutions; (5) directing 

support to Afghan prosecutions of security related crimes; and (6) supporting a major anti- or countercorruption effort involving either prosecution or administrative removal of public officials. This approach 

plays to one of the military’s key strengths: a field presence in areas that might be too dangerous for civilian 

ROL advisors. 

Regional Command (South) (RC(S)), formed around the Headquarters, 10th Mountain Division, issued a 

similar plan shortly after their deployment to Kandahar in 2010. The ISAF and ISAF Joint Command (IJC) 

Headquarters seriously considered issuing ROL plans during 2010 and 2011. 

The North Atlantic Treaty Organization Training Mission-Afghanistan (NTM-A) and its U.S.-led companion 

command Combined Security Transition Command-Afghanistan (CSTC-A) have incorporated ROL as a 

major element in their plan for building the institutional capacity of Afghanistan’s security forces. 

The IJC was established in 2009 to command and control the Regional Commands throughout Afghanistan. 

As this Handbook went to print (in August 2011), the IJC was preparing to issue a FRAGO specifying how 

ROL would fit into its campaign plan, tasking the Regional Commands with action and reporting 

requirements. 

C. The International Framework 

The military approach to ROL may be realistic, but it raises the further problem of coordinating ROL efforts. 

Since the military does not own the whole problem of ROL, it must cooperate with the other “stakeholders” 

involved in building ROL. But who are these other stakeholders? The most important stakeholder is the 

Afghan government. The method by which a state will exercise its sovereignty, the essence of the ROL, is a 

deeply political question specific to each individual host nation. We should not be surprised, as strangers in 

a foreign country, when the Afghan government approaches the ROL with a perspective that is alien to us, 

frustrating though this might be on occasion. If ROL does come to Afghanistan, we must expect it to have 

an Afghan complexion: it would be naïve to expect otherwise. 

Working with the Afghan government on ROL issues is complicated by the fact that there are five main 

ministries and executive agencies involved in providing ROL: the Ministry of Justice, the Supreme Court, the 

Attorney General’s Office, the National Directorate of Security, and the Ministry of the Interior. 

•	 Ministry of Justice.

9

 Responsible for prisons, the Huqooq,10 legislative review, and supervising the 

courts. 

•	 Supreme Court.

11 Responsible for the judges.12 

•	 Attorney General’s Office. Responsible for prosecutors. 

9 See http://www.moj.gov.af/en (last visited Aug. 23, 2011). 10 The Huqooq is described as the “face of the Ministry of Justice.” There are Huqooq offices in every province. The 

Huqooq is the first place in the formal justice system where people take their disputes for resolution. These include 

mediation, family and commercial law, and land disputes. Anecdotally, the Huqooq appears to have a positive 

relationship with the informal justice system. Cases are referred between the two systems. Individuals will reportedly 

take an informal justice decision to the Huqooq for validation: in effect a symbiotic relationship appears to exist 

between the informal system and the Huqooq. Rule of law SJAs in RC(E) have forged good relationships with their 

local Huqooq representatives. A typical rule of law project will involve providing legal training for Huqooq officials: 

an important “small step forward” in building up the rule of law. 

11 See http://www.supremecourt.gov.af/en (last visited Aug. 23, 2011). 12 The Afghan Constitution formally establishes separation of powers, and the Afghan Supreme Court is acutely 

conscious of its judicial independence from the executive ministries. See The Constitution of Afghanistan Jan. 3, 2004, 

art. 116 [hereinafter Constitution]. 

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•	 National Directorate of Security. Responsible for investigation of internal and external national 

security threats and terrorism. 

•	 Ministry of the Interior. Responsible for the police. 

The departments are independent of each other, while the Supreme Court, in particular, is constitutionally 

independent of the executive, similar to the American concept of judicial independence. This division of 

responsibility between independent departments introduces the potential for bureaucratic frictions and 

misunderstandings among potentially competing government bureaucracies—again similar to the American 

concept of bureaucratic infighting. 

Outside the Afghan government, there are a large number of stakeholders with an interest in ROL. These 

include IOs, various USG agencies, other foreign national agencies, and NGOs. The military ROL 

practitioner must have an understanding of who they are and how (and if) they fit together. 

The United Nations Assistance Mission in Afghanistan (UNAMA) is the most important IO operating to 

develop the ROL in Afghanistan.13 It has a mandate from the UN Security Council (UNSCR 1868 of 29 Mar 

09)14 that it “will continue to lead the international civilian efforts ... to support and strengthen efforts to 

improve governance and the rule of law.”15 UNAMA works to support the Afghan government’s efforts in 

reaching its NJP objectives. UNAMA has had regional offices at the provincial level, which have frequently 

assisted JAs in gaining situational awareness and in coordinating ROL development efforts with other 

actors.16 Furthermore UNAMA, in partnership with UN Development Program (UNDP),17 sponsors the 

Provincial Justice Coordination Mechanism (PJCM) which was launched on 1 July 2008 and is responsible 

for coordinating ROL efforts. A judge advocate, or a PRT commander, working on ROL would be well 

advised to coordinate his efforts with UNAMA and the PJCM. 

The European Union also engages in ROL efforts in Afghanistan. The staff of the European Union’s Special 

Representative to Afghanistan is highly influential among international donors, although they have a limited 

field presence. Under the European Union, the European Union Police mission (EUPOL) also has a 

significant role in police training and capacity building. EUPOL has more of a field presence, although 

personnel and security concerns limit their ability to engage in sustained mentoring efforts at the provincial 

and district level. 

D. U.S. Government Efforts 

The U.S. Government’s contribution to the ROL in Afghanistan is significant in scale and range. Indeed the 

U.S. contribution has been so large that coordinating the various efforts has been a challenge.18 

13 See http://unama.unmissions.org/default.aspx? (last visited Aug. 23, 2011). 14 S.C. Res. 1868, U.N. Doc. S/RES/1868 (Mar. 23, 2009), available at
 

http://www.unhcr.org/refworld/country,,,RESOLUTION,AFG,4562d8cf2,49c9f9992,0.html (last visited Aug. 23, 

2011). 

15 Id. 16 For instance, the UNAMA representative in Jalalabad, the provincial capital of Nangahar Province, attends regular 

meetings hosted by the U.S. BCT Rule of Law Coordinator who is stationed at Jalalabad. This greatly assists the 

planning and coordination of rule of law efforts in Nanagahar Province.

17 See http://www.undp.org/governance/focus_justice_law.shtml (last visited Aug. 23, 2011). 18Department of State and the Broadcasting Board of Governors, Office of Inspector General, Rep. No. ISP-I-08-09, 

Rule-of-Law Programs in Afghanistan 7 (2008), available at http://oig.state.gov/documents/organization/106946.pdf
 

(last visited Aug. 23, 2011) “[T]he inspection team found that since 2002 the different civilian and military agencies 

engaged in aspects of ROL development have approached their tasks with different goals, methodologies, and timelines, 

and have often been unaware of each other’s efforts.” Id. At 7. Moreover, “[a]t the embassy in Kabul, . . . by late 2005, 

internal U.S. coordination meetings on ROL were best characterized as shouting matches between representatives of
 

different agencies.” Id. at 8. 

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The U.S. Government has reorganized the structure for ROL operations in Afghanistan in order to create a 

more unified approach to civil-military and interagency ROL efforts. The new structure resulted from an 

agreement between the U.S. Ambassador and the COMUSFOR-A / COMISAF. The Ambassador created a 

Coordinating Director for Rule of Law and Law Enforcement.19 This position is of Ambassadorial rank and 

oversees unified military and Embassy efforts through existing agencies and commands, as well as through 

new structures and military commands. The new Coordinating Director oversees a decision-making process 

modeled after the U.S. National Security Council structure involving a policy-making body known as the 

“Deputies Committee.” Another body created in this restructuring was the “Interagency Planning and 

Implementation Team (IPIT),” a civil-military team that analyzes, plans, tracks progress of projects and 

programs, and that develops concepts for consideration by the Deputies Committee. On the other side of the 

coin, Joint Task Force-435 became a Combined Joint Interagency Task Force.20 It created a one-star military 

command known as the Rule of Law Field Force-Afghanistan (ROLFF-A) that fields ROLFF-A Teams 

dedicated to implement interagency projects at selected Provincial Justice Centers and to control Field 

Support Teams and Officers working at the district level. 

The U.S. Embassy has recently reorganized these elements by merging the existing U.S. Embassy Rule of 

Law Coordinator’s office with the Interagency Planning and Implementation Team (IPIT). This new 

organization is renamed “Interagency Rule of Law (IROL)” and maintains its two separate offices in the 

Embassy and at a facility in Camp Phoenix (on the northeastern edge of Kabul city). The IROL serves as a 

special staff under the Coordinating Director for Rule of Law and Law Enforcement. Judge advocates are 

assigned to both portions of the IROL. The Deputy to the Coordinating Director for Rule of Law and Law 

Enforcement is a one-star judge advocate.21 

Corruption is a grave threat to the development of the ROL in Afghanistan. The Coordinating Director for 

Rule of Law and Law Enforcement also supervises U.S. Government civil and military counter corruption 

efforts. A major and long-awaited development has been the establishment of an Afghan Anti-Corruption 

Tribunal. The U.S. Embassy, and other coalition partners, have devoted significant resources to supporting 

the new Tribunal. The Anti-Corruption Tribunal is closely modeled on the successful Anti-Narcotics 

Tribunal.22 It receives special support and protection, and employs vetted judges and staff to minimize 

opportunities for corruption. It is hoped the Anti-Corruption Tribunal will go some way to reducing the 

impression that corrupt officials are unlikely to be caught. ISAF has also created Combined Joint 

Interagency Task Force Shafafiyat that oversees all counter corruption efforts of the military coalition. 

It should be noted that the U.S. Department of State and USAID have become more aggressive in deploying 

their ROL staffs into new areas as part of the new “civilian surge” strategy. Thus, military practitioners are 

likely to find “governance” or “rule of law” specialists at regional platforms of the U.S. Embassy (normally 

co-located with a Regional Command headquarters), at a Brigade Task Force Senior Civilian Representative 

(SCR) office, at a Provincial Reconstruction Team (PRT), or at a District Support Team (DST) working with 

Afghan district government officials. In addition, the Bureau of International Narcotics and Law 

Enforcement Affairs (INL) and USAID have an extensive network of U.S. and Afghan staff and contractors 

working at regional centers and in other locations at provincial level throughout the country. Many of these 

ROL specialists are working closely with military counterparts. This is a very positive development for the 

ROL in Afghanistan. 

19 See http://kabul.usembassy.gov/klemm.html. 20 HEADQUARTERS, UNITED STATES FORCES – AFGHANISTAN, FRAGMENTARY ORDER 10-279, ANNOUNCES THE 

TRANSITION OF JOINT TASK FORCE (JTF)-435 TO COMBINED JOINT INTERAGENCY TASK FORCE (CJIATF)-435 (311839Z 

Aug. 10) (SECRET//REL to USA, NATO//MR). 

21 Currently Brigadier General Daniel Fincher. See http://www.af.mil/information/bios/bio.asp?bioID=13170. 22 See: http://kabul.usembassy.gov/media/inl-ap-factsheet-8-27-08.pdf (last visited Aug. 23, 2011). 

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In addition to DOD, prominent USG agency participants in Afghanistan include: 

•	 Department of State – Bureau of International Narcotics and Law Enforcement Affairs (DOS/ 

INL): INL works in Afghanistan through two separate programs: the Justice Sector Support Program 

(JSSP) and the Corrections Systems Support Program (CSSP). Their specific responsibilities: 

•	 JSSP: Supports the Afghan Attorney General’s Office and the MOJ, provides regional training 

programs, and supports the Independent National Legal Training Center (INLTC) in Kabul.23 

•	 CSSP: Supports the prison system, develops corrections infrastructure, and provides training. 

•	 USAID: Supports the Supreme Court, law reform and legislative drafting, law schools, and informal 

dispute resolution. It produces a range of useful legal reference materials. It also provides a link to the 

informal justice system and supports legal aid.24 

•	 Department of Justice: DOJ has the lead with certain specialized investigative and prosecutorial efforts 

in Kabul, such as the Counter Narcotics Justice Center, the Criminal Justice Task Force (the specialist 

counternarcotics task force), the Anti-Corruption Unit in the Attorney General’s Office, and the U.S. 

Marshals Service efforts to build an Afghan Judicial Security Unit and support ROLFF-A with judicial 

security and investigative expertise. In addition, the Drug Enforcement Agency has had a longstanding 

presence supporting Afghan counter narcotics units and other law enforcement investigative activities. 

•	 U.S. Institute of Peace: Governmentally funded but staffed by international experts, the USIP studies 

ROL issues such as informal dispute resolution. 

1.	 CJIATF-435 

On September 18, 2009, the Secretary of Defense established Joint Task Force-435 (JTF-435) to assume 

command, control, oversight and responsibility for all U.S. detainee operations in Afghanistan. 

JTF-435 assumed responsibility for U.S. detention operations from Combined Joint Task Force-82, including 

the care and custody of detainees at the Detention Facility in Parwan (DFIP), oversight of detainee review 

processes, programs for the peaceful reintegration of detainees into society, and coordination with other 

agencies for the promotion of the ROL in Afghanistan. 

JTF-435 focused its efforts on: 

•	 Safe, secure, humane care and custody of detainees consistent with law 

•	 Detainee Review Board (DRB) procedures 

•	 Reintegration and Rehabilitation of detainees 

•	 Education and vocational training for eligible detainees 

•	 Rule of law 

As part of the restructuring described above, JTF-435 became a Combined Joint Interagency Task Force on 3 

September 2010. 

Besides overseeing U.S. detention operations, CJIATF-435 is preparing to have other partners join the 

command. Instead of being comprised of only U.S. military members, the goal is for the task force to 

include officials from Afghan and U.S. organizations, such as the Afghan Ministry of Defense and Ministry 

of Justice, the U.S. State Department, and the U.S. Department of Justice as well as military and civilians 

from other coalition nations. 

23 See http://www.inltc.af/home.htm (last visited Aug. 23, 2011). 24 See http://afghanistan.usaid.gov/en/USAID/Activity/85/Afghanistan_Rule_of_Law_Project_ARoLP (last visited Aug. 

23, 2011). 

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2.	 Rule of Law Field Force - Afghanistan (ROLFF-A) and NATO Rule of Law Field 

Support Mission – Afghanistan (NROLFSM-A) 

The Rule of Law Field Force-Afghanistan (ROLFF-A) was established on 3 September 2010 as a 

subordinate command to USFOR-A and CJIATF-435. On 4 July 2011, the command assumed an additional 

role as the NATO Rule of Law Field Support Mission-Afghanistan (NROLFSM-A) under direct command of 

the International Security Assistance Force (ISAF).25 

The mission of NROLFSM-A is to provide essential field capabilities, liaison, and security to Afghan and 

international civilian providers of technical assistance supporting the building of Afghan criminal justice 

capacity, increase access to dispute resolution services, fight corruption, and promote the legitimacy of the 

Afghan government. Headquarters, NROLFSM-A is at Kandahar Airfield in Kandahar Province. The 

command has deployed its subordinate Rule of Law Field Support Teams to provincial capitals around the 

country in order to strengthen selected Provincial Justice Centers in Kandahar, Khost, and Jalalabad. In 

addition, the command has deployed Field Support Officers and teams to the district level in these provinces 

and other key locations around the country. 

The command employs a “hub and spoke” approach in which it helps the Afghan legal institutions at the 

provincial capital to create a strong hub of governance and to project government officials and services to 

Districts (the “spokes”). This sometimes entails helping Afghan officials to establish secure facilities that 

enable inter-ministerial functionality and cooperation. These facilities also allow international mentors to 

live on-site and provide around the clock support to their Afghan counterparts. General Petraeus often 

referred to these as “Rule of Law Green Zones.” Simultaneously, Field Support Officers work with District 

officials to assist them to perform their constitutional and statutory duties. Rule of Law Field Support Teams 

and Field Support Officers are multi-functional and bring capabilities such as engineering, contracting, 

financial, law enforcement, investigative, and legal expertise to bear on complex problems. NROLFSM-A 

personnel help Afghan officials to identify capability gaps, resource requirements, and other challenges. 

Then they help to facilitate USG and international experts in their efforts to mentor, train, and advise 

Afghans at the provincial and district level. 

3.	 Combined Security Transition Command – Afghanistan (CSTC-A) / NATO Training 

Mission – Afghanistan (NTM-A) 

The North Atlantic Treaty Organization Training Mission-Afghanistan (NTM-A) and its U.S.-led companion 

command Combined Security Transition Command-Afghanistan (CSTC-A) have historically been engaged 

in limited ROL efforts. The Office of the Staff Judge Advocate (OSJA) focused its work on building the 

legal advisor capacity of the Ministry of Interior and Ministry of Defense. In addition, they ensured that the 

Afghanistan National Army (ANA) had its own corps of legal advisors, prosecutors, and judges to administer 

the military justice system within the ANA. Finally, the SJA served as the proponent for legal blocks of 

instruction in the institutional training systems for both the ANA and the Afghanistan National Police (ANP). 

Recently, NTM-A’s Deputy Commander for Police Development has taken a strong interest in ROL. As a 

result, a Senior Executive Service level position was created to advise the command on ROL matters. As 

mentioned above, this has resulted in incorporating ROL as a major element in the command’s long term 

strategic plan for transition of the Afghan security forces over the next few years. Given the need to 

strengthen the ANP’s criminal investigative capacity and law enforcement capability as a whole, this 

development will be crucial to coalition efforts to build credible and effective law enforcement institutions in 

Afghanistan. 

25 The current Commander, ROLFF-A and NROLFSM-A, is Rear Admiral James W. Crawford III. See 

Judge Advocate Named Commander, Rule of Law Field Force-Afghanistan, FROM THE FLAGS (The Judge 

Advocate General and Deputy Judge Advocate General of the Navy), Aug. 4, 2011. 

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E. Provincial Reconstruction Teams 

Provincial Reconstruction Teams in Afghanistan play an important role in reconstruction.26 They have 

matured since November 2002 from a single U.S.-led pilot project in Gardez to an international effort 

involving 25 teams in most of Afghanistan’s 34 provinces.27 Twelve of the Afghanistan PRTs are led by the 

United States, and 13 by coalition partners throughout the country.28 All fall under the broad authority of 

ISAF. All PRTs receive general guidance through the ANDS process described above. “For the 

International Security and Assistance Force, the PRT is now the principal vehicle to leverage the 

international community and Afghan government reconstruction and development programs.”29 Provincial 

Reconstruction Teams operate under tactical control to their battlespace task force, which is usually a BCT. 

In practice, this means that the PRT’s ROL efforts are often directed by the staff of the Brigade Legal 

Section. 

United States PRTs in Afghanistan are commanded by an Army lieutenant colonel or Navy commander and 

composed almost entirely of military personnel. As described above, DOS is now starting to send civilian 

ROL specialists to U.S. PRTs as part of the “civilian surge,” a welcome development. The “PRTs typically 

consist of 50-100 personnel, of which only 3 or 4 members are USG civilians or contractors;” however, the 

civilian representation is starting to increase.30 Civilian PRT staff may be from the State Department, 

USAID, or the Agriculture Department. The PRT’s military commander does not command the non-DOD 

civilians.31 

In addition, PRTs have two Army civil affairs teams with four soldiers each. The U.S. 

model also typically includes a military police unit, a psychological operations unit, an 

explosive ordnance/demining unit, an intelligence team, medics, a force protection unit, and 

administrative and support personnel. An Afghan representing the Ministry of Interior may 

also be part of the team. These PRTs should include a single representative from each of the 

U.S. Department of State (DOS), the U.S. Agency for International Development (USAID), 

26 As described in ch. 2, there are a number of other programs at the provincial level. For example, Regional Training 

Centers (RTC) are built and managed by INL to support the Afghanistan Police Program and other provincial activities. 

These seven RTCs, located in Herat, Balkh, Konduz, Nangarhar, Paktia, Kandahar, and Bamiyan, serve as important 

regional centers for USG police, justice and corrections assistance. In particular, INL supports 24 U.S. justice and 

corrections advisors deployed at the Herat, Balkh, Konduz, Nangarhar and Paktia RTCs. Advisors at these RTCs are 

part of the INL Justice Sector Support Program (JSSP) or the INL Corrections System Support Program (CSSP) 

contracts. Each of these programs has around 70 contracted U.S. advisors, along with around 40 Afghan Legal 

Consultants (ALCs). United States advisors are selected and trained in Washington, and reflect a variety of identified 

skill sets and backgrounds, including line-prosecution work as state and local attorneys; criminal defense work, both 

private and public; civil law and sharia law expertise; legal training experience; and State corrections systems. JSSP 

and CSSP advisors based at RTCs report to their respective program directors in Kabul, who report to the INL Narcotics 

Affairs Section (NAS) Program Manager at the U.S. Embassy. 

27 Donna Miles, PRTs Showing Progress in Afghanistan, Iraq; Civilian Reserve Needed, U.S. DEP’T OF DEF. (Oct. 5, 

2007), http://www.defense.gov/news/newsarticle.aspx?id=47700. 28 Id. 

29 Id. General Wilkes also told the Subcommittee, “The activities of the PRTs are setting the conditions that bring more 

local support to the central government, further separating the local population from the insurgency, and continuing to 

transform the lives of the Afghan people ... . The PRT is an entity to facilitate progress and ensure both the 

counterinsurgency and national development efforts are complementary and ultimately successful.” 30 STAFF OF HOUSE ARMED SERVICES SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS, 110TH CONG., AGENCY 

STOVEPIPES VERSUS STRATEGIC AGILITY: LESSONS WE NEED TO LEARN FROM PROVINCIAL RECONSTRUCTION TEAMS IN 

IRAQ AND AFGHANISTAN 13 (Comm. Print 2008) [hereinafter Subcommitee Report] , available at 

http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA480736&Location=U2&doc=GetTRDoc.pdf (last visited Aug. 23, 

2011). 

31 Id. 

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and the U.S. Department of Agriculture (USDA). . . . PRTs are usually co-located on a 

military base with combat maneuver units operating in the same area or battlespace.32 

The Kunar PRT: 

A Case Study in Elegant and Effective Support for Rule of Law 

The PRT in Kunar Province has enjoyed particular success in developing ROL. The PRT 

has a dedicated civilian Department of State Rule of Law Coordinator. This individual 

reached out to the Afghan prosecutors and judges at the provincial level in a process of 

mentoring and encouraging the local officials. The fruits of this engagement were three 

trials involving allegations of corruption and murder. The first trial attracted relatively little 

public interest, but this changed over the course of the trials. The third trial was conducted 

before a packed public gallery and was televised. Even the Provincial Governor attended 

and—very significantly as an acknowledgement of the independent status of the judiciary 

and the trial—observed from the body of the courthouse. We can draw a number of 

conclusions from the Kunar PRT experience in ROL. The first is that infrastructure 

improvements, while often important, are not essential: people matter more than structures. 

The second is that personal relationships; the building of trust and some encouragement, can 

go a long way. There is, of course, a converse side: if there are no local officials with 

potential who can be mentored and brought on, then the prospects for improvement are 

moot. Finally, we can see from the increasing interest from the Afghan public an acceptance 

of, and support for, trials in the formal justice system. This is an encouraging precedent for 

the future. 

The PRTs are often divided into teams, with one team responsible for building small, quick-impact 

development projects using local contractors and the other for running the PRT civil military operations 

center (CMOC), which coordinates activities with the UN and NGOs. 

Even though a PRT might not have a civilian ROL coordinator assigned to it (and this is starting to change), 

there are still ways in which PRTs can contribute to justice reform in Afghanistan: 

•	 Building judicial infrastructure; 

•	 Facilitating information-sharing (PRTs are popular with Afghan nationals, which gives them strong local 

connections and good situational awareness); 

•	 Advising on best use of donor funds; 

•	 Helping to coordinate reconstruction efforts with the UNAMA PJCM. 

32 Id. at 13-14. 

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Preparing for “Whole of Government” Counterinsurgency and Stability Operations: 

The Interagency Afghanistan Integrated Civilian-Military Pre-Deployment Training 

Course
 

Recognizing the need to improve interagency training for personnel being deployed to 

Afghanistan, an Interagency Working Group made up of representatives from the 

Departments of Defense, State—including the U.S. Agency for International Development 

(USAID)—and Agriculture developed the Interagency Afghanistan Integrated CivilianMilitary Pre-Deployment Training Course. This course supports the comprehensive new 

strategy designed by President Obama, the former Special Representative for Afghanistan 

and Pakistan, Ambassador Richard Holbrooke, and the former Commander of U.S. Central 

Command, General David Petraeus, that seeks to increase civilian capabilities—the “civilian 

uplift”—and improve coordination among U.S. government agencies in promoting a more 

capable, accountable, and effective government and economy in Afghanistan. The course 

also answers the call from Congress that civilian personnel assigned to serve in Afghanistan 

receive civilian-military coordination training that focuses on counterinsurgency and 

stability operations. Representatives of the Departments of Defense, State, Agriculture, and 

USAID implement the training in collaboration with the Indiana National Guard and its 

partners, including Indiana University and Purdue University. The course is conducted at 

the Muscatatuck Urban Training Center, the premier interagency training facility associated 

with the Camp Atterbury/Muscatatuck Center for Complex Operations in Indiana. This 

training course began in July 2009 and will run monthly for Afghanistan-bound USG 

civilians and military members. 

The one-week course provides U.S. civilian government personnel from DOD, DOS, 

USAID, and USDA with training on working within the civilian-military interagency 

contexts of Provincial Reconstructions Teams (PRTs) and District Support Teams (DSTs) 

deployed in Afghanistan. The training simulates interagency coordination tasks civilian and 

military personnel face in Afghanistan, including taking convoys to meetings with Afghan 

officials, responding to security threats against forward operating bases, and sharing 

information and ideas on how to make progress on the lines of operation and effort that 

guide counterinsurgency and stability operations. The course also provides trainees with 

numerous role-playing scenarios with Afghan role-players and interpreters that simulate the 

tasks the trainees will face once deployed in Afghanistan. These scenarios include missions 

related to improving the ROL, such as visiting a district court and district prison to assess 

challenges facing central and provincial efforts to improve the ROL.33 

F. The Legal System of Afghanistan 

For centuries, Afghan history has been dominated by internal political and religious conflict, foreign 

invasion, and civil war. These circumstances have contributed to an overall lack of a single coherent, 

functioning, and generally recognized legal system in Afghanistan. 

The 2004 Afghan Constitution formally created a modern Islamic state with a tripartite structure familiar to 

western lawyers: an executive central government with extensive regulatory authority,34 a bi-cameral 

33 See http://www.mutc.in.ng.mil/OPERATIONS/CivilianMilitaryTraining/tabid/864/Default.aspx (last visited Aug. 23, 

2011). 

34 See Ramin Moschtaghi, Organisation and Jurisdiction of the Newly Established Afghan Courts – the Compliance of
 

the Formal System of Justice with the Bonn Agreement, 10 Max Planck Y.B. of U.N. L. 531, 584, available at
 

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legislature and an independent judiciary.35 Presidential as well as parliamentarian elections have been held. 

A substantial number of new statutes have been passed.36 The rebuilding of the legal infrastructure (e.g., 

courthouses, prisons, and law schools) has begun. Significant funds have been spent on the buildup of the 

Afghan National Army and Afghan National Police.37 

In spite of the hard work exerted to bring the ROL to Afghanistan,38 the results have generally been seen as 

falling far short of the initial hopes and expectations: a dramatic discrepancy persists between the formal 

legal provisions and the present de facto order. In spite of improvement in some areas, the security situation 

in large parts of the country is volatile, corruption is rampant, there is a continuing lack of professionally 

trained government personnel39 and the legal infrastructure is basic at best and non-existent in some parts of 

the country.40 Furthermore, there is a widespread lack of respect for the ROL as set by the central 

government and the legitimacy of Afghan national law continues to be challenged by alternate power 

structures, such as tribal and militia leaders. 

In practice, Afghanistan’s legal system is characterized by the co-existence of two separate judicial systems: 

•	 A formal system of law practiced by state authorities41 relying on a mixture between the civil law system 

and elements of Islamic law; and 

•	 An informal customary legal system based on customary tribal law and local interpretations of Islamic 

law. 

The “dual nature” of the Afghan legal system stems to some degree from the limited reach of state authority 

in Afghanistan. However, it is also emblematic of the historic and continuing tensions inherent to an 

ethnically diverse Afghan society.42 

The three sources of law formal and informal institutions rely on—positive secular law, Islamic law, and 

customary law—overlap in subject matter and can provide contradictory guidance. Tribal law and Sharia 

http://www.mpil.de/shared/data/pdf/moschtaghi_organisation_and_juristiction_of_newly_established_afghan_courts1.p 

df (last visited Aug. 23, 2011). 35 Article 97 of the 1964 Constitution and the Bonn Agreement guarantee the independence of the judiciary. 

36 For more information, see the Ministry of Justice’s website at http://www.moj.gov.af/en (last visited Aug. 23, 2011). 37 See U.S. DEP’T OF DEF., REPORT ON PROGRESS TOWARD SECURITY AND STABILITY IN AFGHANISTAN, at 16-29 (June 

2008), available at 

http://www.defenselink.mil/pubs/Report_on_Progress_toward_Security_and_Stability_in_Afghanistan_1230.pdf (last 

visited Aug. 23, 2011). 

38 See JOINT COORDINATION MONITORING BOARD SECRETARIAT, BENCHMARK STATUS REPORT MARCH 2007 – MARCH 

2008, at paras. 2.7.1. - 2.7.4 (Apr. 2008), available at 

http://www.motca.gov.af/uploads/media/Benchmarks_Status_Report-Eng.pdf (last visited Aug. 23, 2011). 

39According to a recent Human Development Report, little more than half of the judges have the relevant formal higher 

education and have completed the required one-year period of judicial training. The remaining judges have graduate 

from madrassas or have a non-legal academic education, with 20 percent having no university training at all. See 

CENTER FOR POLICY AND HUMAN DEVELOPMENT, AFGHANISTAN HUMAN DEVELOPMENT REPORT 2007, at 43 (2007) 

[hereinafter HUMAN DEVELOPMENT REPORT], available at 

http://hdr.undp.org/en/reports/nationalreports/asiathepacific/afghanistan/nhdr2007.pdf (last visited Aug. 23, 2011). 40 Some court facilities lack even the most basic physical requirements. In addition, according to the Human 

Development Report 2007, 36 percent of judges have no access to statutes, 54 percent have no access to legal textbooks, 

and 82 percent have no access to decisions of the Afghan Supreme Court. Prisons are often overcrowded and do not 

met international standards. Id. at 71. 41 It should be noted that official courts often apply positive law as well as customary and Islamic law. 

42 According to Art. 4 of the 2004 Afghan constitution, the nation of Afghanistan is comprised of the following ethnic 

groups: Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, 

Brahwui and others, of which the Pashtun with approximately 42% and the Tajik with approximately 27% are the 

largest groups. See Constitution, supra note 12, art. 4. 

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often seem to contradict the provisions of the 2004 constitution and Afghanistan’s international human rights 

obligations, particularly with regard to women’s rights and freedom of religion.43 

Because 99% of the country is Muslim, the Sharia plays a major role as the common denominator between 

the formal and the informal system,44 but its interpretation varies widely both by location and among 

different schools of Islamic jurisprudence. Islamic legal scholars play an important role as custodians of 

Islamic law, and their importance within the legal system should not be underestimated. Frequently, 

Afghans see little difference between a mullah and a judge; religious training is considered equivalent to 

studying law at a university.45 There exists neither a single, generally accepted supreme authority on the 

content of Islamic law in Afghanistan nor a coherent and complete system to resolve competing 

interpretations.46 

1. The Formal Legal System 

Until 1964, Afghanistan’s state-administered court system had essentially a dual structure, in which clergyled religious courts applying Sharia co-existed with state courts handling secular law.47 Under the liberal 

1964 constitution, and similarly under the 2004 constitution, the state court system is united under a 

hierarchical structure of secular courts. The formal relationship between state law and Sharia however is less 

clear. The 2004 constitution states that only measures that pass the legislative process can be considered 

law48 and that courts may only refer to the Hanafi jurisprudence of Islamic law49 when there is no provision 

of the Afghan Constitution or other laws applicable.50 However, it also states that no law shall contravene 

Islam51 and prohibits amendment of this principle,52 leaving the relationship between positive state law, 

international obligations, and Islamic law uncertain. 

a. Court System53 

The Afghan court system is a three-tiered system consisting of a Supreme Court located in Kabul, Courts of 

Appeal in each of the thirty-four provinces, and Primary Courts in the districts. 

43 Afghanistan is party to a number of human rights treaties, including the ICCPR, ICESCR, CAT, CRC, CEDAW, and 

the Rome Statute. Notably, under Islamic Law blasphemy and apostasy are punishable by death while Art. 18 of the 

ICCPR guarantees freedom of religion. 

44 See J. Alexander Their, Reestablishing the Judicial System in Afghanistan 5 (Stanford Inst. for Int’l Studies Center on
 

Democracy, Development and the Rule of Law Working Paper No. 19 2004), available at http://iisdb.stanford.edu/pubs/20714/Reestablishing_the_Judiciary_in_Afghanistan.pdf (last visited Aug. 23, 2011). 45 See infra note 60. 46 See Chapter 4 of this Handbook for a more complete account of Islam and Islamism in Afghanistan. See also Kristin
 

Mendoza, Islam and Islamism in Afghanistan (unpublished paper) (on file with the Harvard Law School Afghan Legal
 

History Project), available at http://www.law.harvard.edu/programs/ilsp/research/mendoza.pdf (last visited Aug. 23, 

2011). 

47 Islamic Law was introduced in Afghanistan as a consequence of the Islamic conquest in the 9th century. With regard 

to the development of the Afghan State and its legal system from Kingdom to its present status, see Moschtaghi, supra
 

note 34, at535.

48 Constitution, supra note 12, art. 97. 

49 The Hanafi school is the oldest of the four schools of thought (Madhhabs) or jurisprudence (Fiqh) within Sunni Islam.
 50 Constitution, supra note 12, art. 130.
 51 Constitution, supra note 12, art. 3.
 52 Constitution, supra note 12, art. 149.
 53 The Court System is regulated by the Constitution and the 2005 Law of the Organization and Authority of the Courts 

of Islamic Republic of Afghanistan [hereinafter Law of the Courts], see
 

http://supremecourt.gov.af/Content/Media/Documents/Law_on_Org_juris_courts_English112011121448474.pdf (last 

visited Aug. 23, 2011). Note that up to 2005, a four-tiered system was prescribed by law even though not functioning in
 

practice.
 

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The Supreme Court is the formal head of the judiciary.54 Headed by the Chief Justice, it is constitutionally 

responsible for the organization and administration of the lower courts55 and has as many managerial 

functions as it has judicial responsibilities.56 Besides its appellate functions, the Supreme Court has the 

significant power of judicial review of the laws, legislative decrees, international treaties, and international 

covenants for their compliance with the Afghan Constitution,57 and has reserved itself the right to review 

their consistency with Sharia.58 

At the second level of this hierarchy are the Courts of Appeal based in each of the thirty-four provinces.59 

Each of the Courts of Appeal is headed by a Chief Judge and divided into different divisions.60 The Courts 

of Appeal review the decisions of the Primary Courts. 

The official courts of first instance are the Primary Courts, which consist of a central provincial primary 

court and various district primary courts as well as certain specialized courts, such as the Family Issues 

Primary Courts, Commercial Primary Court and the Juvenile Court.61 A number of other national 

specialized courts also exist, among them the Courts for Offences against National Security, and the Central 

Narcotics Tribunal. 

The President appoints Afghan judges based upon the recommendation of the Chief Justice of the Supreme 

Court. According to the 2005 Law on the Organization and Authority of the Courts, an individual must hold 

a degree from either a Faculty of Law or a Faculty of Sharia, must have completed the practical stage of legal 

professional training and must be older than 25 years in order to be appointed as a judge.62 Only a minority 

of sitting judges presently satisfy these requirements. The 2005 law also allows holders of diplomas on 

religious studies from an officially recognized center to serve as judges on the Primary Courts.63 

Afghan court hearings usually consist of three-judge benches. Judges often convene trials in their offices due 

not only to limited infrastructure, but also custom—the notion of justice being done in open court is foreign 

to many Afghans. 

b. Sources of Law 

The Afghan legal system is a mixed one. Under the 2004 constitution, the official courts shall apply, in 

principle, only positive law—law that has passed the formal legislative process—however, they also may 

consider Sharia. The Afghan Government is passing an increasing body of law.64 Constitutionally, only in 

situations where no formal law is applicable can decisions be based on the Hanafi interpretation of Islamic 

law,65 or, in cases where all parties involved are Shia, the Shiite interpretation.66 If neither formal law nor 

Sharia is applicable in a particular dispute then customary law may be consulted. 

54 Constitution, supra note 12, art. 116.
 55 Law of the Courts, supra note 53, art. 29. 56 See Their, supra note 44, at 10. 57 Constitution, supra note 12, art. 121; Law of the Courts, supra note 53, art. 24. 58 Notably, the Supreme Court has created within its administrative structure a council composed of clerics that reviews 

questions of Islamic law, and has, on its own initiative, issued rulings even in matters not actually brought to the 

Supreme Court by any parties.

59 The “Courts of Appeal” prior to 2005 were known as “Provincial Courts.” 

60 These courts are designed to have six “dewans” -- General Criminal, Public or National Security, Civil and Family, 

Public Rights, Commercial, and Juvenile. Law of the Courts, supra note 53, art. 32.
 61 See Law of the Courts, supra note 53, art. 40. 62 See Law of the Courts, supra note 53, art. 58 para. 1.
 63 See Law of the Courts, supra note 53, art. 59, para. 2.
 64 According to the Afghan Ministry of Justice, close to 200 legislative documents including laws, regulations and 

charters have been enacted in the past 5 years with a significant additional number currently being drafted. 65 Constitution, supra note 12, art. 130.
 66 Constitution, supra note 12, art. 131.
 

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There is currently a major Afghan-international effort underway to rewrite the Interim Criminal Procedure 

Code of Afghanistan. 

c. Problems in the Formal System 

In practice, court activity is largely limited to the urban centers. Courts of Appeal and Primary Courts have 

taken up work in some, but not yet all, provinces, partly due to the security situation but also because of a 

lack of resources and international community support. Respect for the government’s judicial institutions in 

rural areas remains very limited.67 Indeed a 2010 survey notes “many Afghans continue to view traditional 

dispute resolution mechanisms such as jirga and shura more positively than they do the modern formal 

justice system such as state courts.”68 

In some provinces (Ghazni is one example) it is too dangerous for the District Courts to operate in their 

districts and so they sit in the provincial capital, with obvious repercussions for the ability of residents of 

those districts to access justice. In other districts, the Supreme Court is unable to hire judges who are willing 

to be appointed to the districts, so courts are unable to conduct trials.69 

The court system struggles against logistical constraints as well as a lack of qualified personnel, intimidation, 

corruption, and threats to the livelihood of judges.70 These deficiencies are linked to the security situation, 

the salary level of judges, and a lack of professionalism, integrity, and qualification in some of the judicial 

personnel. Similar problems exist with regard to other government actors involved in the administration of 

justice such as the police, prosecutors, and the correctional services. All of these factors impede the ability 

of the court system to work in a fair and effective manner. 

Many judges do not have access to legal texts or simply lack any appropriate legal training on constitutional 

or positive law. Instead they apply their own version of Sharia or customary law to cases, even though the 

Afghan Constitution has effectively limited the application of Islamic law and does not recognize customary 

law as law at all.71 

Even where sufficiently trained judges have access to legal resources, problems persist due to the numerous 

regime changes since 1964, making it difficult for courts to determine which positive law to apply. Courts 

do not have internet access, and mail service is non-existent in many areas, hindering both legal research and 

regular communication with the national legal infrastructure. Many local courts must rely on often 

incomplete or out of date printed legal texts. The Bonn Agreement establishing the Afghan government 

recognized all existing law and regulations “to the extent that they are not inconsistent with this agreement or 

with international legal obligations.” Some laws, especially from the Taliban era, are obviously inconsistent. 

However, many of the laws passed over the years may not be inconsistent with the Afghan Constitution, 

international law, or the Bonn Agreement, but nonetheless are inconsistent with each other. This situation is 

bound to cause confusion. It is often unclear to what extent old laws can still be relied upon or enforced. 

Moreover, the lack of trained prosecutors, defense attorneys, and justice administrators (such as those who 

run MOJ offices in the provinces) inhibits the work of the courts. Indeed, there are only between 600 and 

1000 defense attorneys for the entire country.72 

67 See THE ASIA FOUNDATION, AFGHANISTAN IN 2010: A SURVEY OF THE AFGHAN PEOPLE (2010), available at
 

http://asiafoundation.org/resources/pdfs/Afghanistanin2010survey.pdf (last visited Aug. 23, 2011).
 68 Id. at 134. 69 International and U.S. Government experts have been assisting the court with hiring efforts to fill these critical 

vacancies. 

70 A number of judges have been murdered, and many have received death threats.
 71 See Constitution, supra note 12, art. 97. 72 Many of whom work in Kabul or other major cities. 

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The Afghan government continues to implement the Afghanistan Compact’s Rule of Law benchmarks and to 

alleviate justice sector problems under the framework of the ANDS and the more specific National Justice 

Sector Strategy.73 However, the level of success of these efforts remains uncertain. 

2. The Informal Legal System 

Due to the tribal structure of Afghan society, customary methods of conflict resolution continue to play a 

significant role, particularly in rural areas. It has been claimed that more than 80 percent of social conflicts 

in Afghanistan are resolved through the non-governmental system.74 This reliance on the informal system is 

due to the loyalty of Afghans toward their family, village, or ethnic group, which traditionally exceeds that to 

the distant central government in Kabul. There are also strong cultural incentives in keeping disputes within 

the informal system. However, there are also practical reasons for Afghans to prefer the informal system: it 

is accessible, fast and unburdened by legalistic process; and it resolves disputes while keeping the mutual 

honor of the litigants intact. Furthermore, it does not have the same reputation for corruption that mires the 

state system. 

The defining features of the informal system are its goals of restitution, collective reconciliation, and 

restoration of the victim’s honor and social harmony. This can be contrasted with the more retributive 

system common to western justice. The primary means of conflict resolution are forgiveness and 

compensation (“Poar” or blood money) in order to forego blood feuds, even though other forms of 

punishment do exist. The best known of these customary rules is pashtunwali, the traditional honor code of 

the Pashtun people. In pashtunwali compensation can include cash, services, animals, or even the transfer of 

75 women.

The informal system generally depends on a consensus of the parties involved, and the decisions are selfenforcing. Social pressure or punishment for those failing to abide by decisions of the peer community 

ensures reasonably effective enforcement. 

a. The Councils: Shuras and Jirgas 

The customary legal system is exercised through jirgas (“circle” or “council” in Pashto) and shuras 

(“consultation” in Arabic). These institutions are local mediation or arbitration panels that resolve day-today disputes in their communities. Their members are recruited from community members or respected 

outsiders and most commonly consist of older, respected men. Cases are discussed and decided orally. 

Council gatherings may occur in private chambers, common gathering places, or a local mosque. While the 

public is often free to attend, women and children are commonly excluded. There is also an appellate 

structure. A plaintiff dissatisfied with the decision of a jirga may request a review of the case by a new jirga. 

73See THE LONDON CONFERENCE ON AFGHANISTAN, THE AFGHANISTAN COMPACT (Feb. 2006), available at 

http://www.nato.int/isaf/docu/epub/pdf/afghanistan_compact.pdf (last visited Aug. 23, 2011). 74 See HUMAN DEVELOPMENT REPORT, supra note 39, at p. 9. It should be noted that accurate statistics are difficult to 

collect in Afghanistan. It is possible that litigants are pursuing cases concurrently through both the formal and informal 

systems, a type of forum shopping. 

75 For additional information on Pashtunwali, see generally Thomas H. Johnson & Chris M. Mason, No Sign until the 

Burst of Fire: Understanding the Pakistan-Afghanistan Frontier, 32 INT’L SEC’Y, no. 4, pp. 41–77 (Spring 2008), 

available at http://belfercenter.ksg.harvard.edu/publication/18241/no_sign_until_the_burst_of_fire.html (last visited 

Aug. 23, 2011). “The very concept of justice is wrapped up in a Pashtun’s maintenance of his honor and his 

independence from external authority. Action that must be taken to preserve honor but that breaks the laws of a state 

would seem perfectly acceptable to a Pashtun. In fact, his honor would demand it.” Id. at 62. 

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b. Sources of Law 

Each local council will apply its own historically evolved, non-codified canons of tribal law, often combining 

arguments from local customary law (urf) with aspects of Sharia. As Afghanistan is home to about 55 

distinct ethnic groups, customary legal rules and the interpretation of the Sharia vary by tribe and location. 

c. Problems, Strengths and Opportunities in the Informal System 

The decisions of the informal justice system cannot be accepted uncritically. There are significant problems 

with it: women and children are often barred from attending jirgas, effectively cutting them off from access 

to justice. Jirga settlements might include marrying a female from an offender’s family to a close relative of 

the victim, with anecdotal evidence suggesting that this can sometimes include the forcible transfer of girls as 

young as six years old. Similarly there has been a habitual denial of women’s property rights, including 

rights to inheritance. Decisions inconsistent with the guarantees given under the Afghan Constitution, state 

laws, or Afghanistan’s human rights obligations, undermine state authority and contradict the goal of 

elevating human rights to the international standard. Further, non-governmental law enforcement challenges 

the state’s monopoly on the use of force. 

Despite these very significant problems, the informal system enjoys certain key strengths, and it is widely 

accepted, respected, and used by the Afghan people. It has legitimacy in the eyes of the majority of Afghans. 

Most commentators on the ROL in Afghanistan (a wide and disparate community) accept that the informal 

system will continue to play some part in the future Afghan justice system.76 But there is less agreement as 

to how this will work in practice. The U.S. Government has not yet reached a conclusive policy position 

regarding the informal justice system.77 Meanwhile, ROL practitioners recognize the existence of this dual 

system and are trying to mitigate its problems. Most troubling are attempts to use the informal system in 

response to serious crimes. Land disputes are also a major issue. They might seem trivial when compared to 

serious violence but unresolved, they are a significant cause of violence. Even where land disputes are 

amicably resolved within the informal system, there is no mechanism for recording the outcome. This can 

result in future disputes, especially among non-resident family members who may be refugees in Pakistan or 

Iran. Education and awareness training will broadcast the message that crimes against the person must be 

dealt with by the state acting through the formal justice system and not through informal tribunals. At the 

other end of the spectrum most people accept that the informal system will continue to play a role in 

resolving minor legal disputes, such as access to grazing and water rights. In those cases the quality of the 

decision-making by informal tribunals can be improved if the informal decision-makers have received some 

legal training. 

In short, the current approach is to educate people as to which cases are not suitable for informal dealing and 

to improve the standard of decision-making in those cases that can remain in the informal system. The place 

of the informal justice system is an interesting and far from straightforward issue. The practitioner is advised 

to keep an eye on the developing policy debate. 

One of the key formal government institutions that engages the informal dispute resolution systems in the 

communities is the Ministry of Justice Huqooq. The Huqooq has officers at national, provincial, and district 

levels of government. These officials help private citizens to seek redress through statutory mechanisms in 

Afghan law, and are often seen to be a critical bridge between the informal and formal legal systems. The 

76 Indeed the Huqooq officials of the MOJ have encouraged parties to take their disputes to the informal system before 

resorting to formal litigation.

77 That being said, the U.S. Agency for International Development has contracted for a “Rule of Law Stabilization 

Program – Informal” with the stated goal of re-establishing “traditional dispute-resolution councils (shuras) . . ., while
 

familiarizing them with Afghan law, . . . . and connecting them in a more formalized manner with the district courts.” 

Rule of Law Stabilization Program – Informal Component, USAID.COM, 

http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component (last 

visited Aug. 23, 2011). 

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Rule of Law Field Force-Afghanistan and other commands have been actively supporting efforts to staff and 

assist the Huqooq in critical regions of the country. 

Another area in which ROL practitioners interact with the informal system is through community 

engagement and training opportunities. Some Brigade Judge Advocates (BJAs) have deliberately sought 

opportunities to work with community leaders who lead jirgas and shuras, serve in tribal or community elder 

positions, and otherwise have positive and influential status within the community. For example, Task Force 

Red Bulls in Regional Command East has developed a training program called “District Leader Training.” 

The program seeks to acquaint local district leaders with their country’s laws and Sharia in order to improve 

the quality of decisions by local decision-making bodies. It is hoped that the human rights laws, 

Constitutional protections for minority and gender groups, and even the protection of minorities and women 

in Sharia can help to reduce the application of draconian custom in local informal decision-making bodies. 

The Task Force hires local national attorneys to present the training using curricula developed in consultation 

with Afghan university faculties. Initial indications are that this is both well received and having a positive 

effect on the attitudes of local leaders toward the treatment of parties in community disputes. 

Bridging the Gap between the Formal and Informal Systems:
 

Not as Easy as it Looks 

Pragmatists claim that the informal and formal justice systems can be grafted together. In 

fact, this is a leading tenet of the U.S. Government Strategy for Rule of Law. However, this 

claim must always be approached with caution. For instance, there is currently a proposal 

that shuras review detention cases. Instinctively this feels correct: it appears to be an 

appropriate Afghan solution to a difficult problem. Also, since surveys indicate that more 

than 80% of disputes are resolved through informal systems it seems like a much larger 

opportunity to address concerns about human rights and due process issues. However, there 

is currently nothing in the Afghan Criminal Code or Constitution to support such 

proceedings. In fact, a draft statute that would recognize and regulate traditional dispute 

resolution bodies has not gained sufficient consensus to be presented to the legislature. As 

such, these informal justice system bodies operate without statutory recognition and thus, 

without anything more, they are outside the formal system for ROL. The ROL practitioner 

must always keep the first principles of the ROL in view and ensure that new proposals 

accord with the fundamental principles. 

Despite the widespread popular support for informal dispute resolution systems, these 

community based fora often misapply legal standards and Sharia law in a way that 

victimizes minority groups and women. The U.S. Agency for International Development, 

the U.S. Institute of Peace, the French government, and military ROL practitioners have 

sought to train local leaders who serve in these jirga and shuras about Afghan law and 

human rights. They have also sought to strengthen the Ministry of Justice office of the 

Huqooq, a legal aid official who can serve as a link between the informal system and the 

government and courts. The challenge is that it will be difficult to determine the 

effectiveness of these efforts. Anecdotal reports indicate that local leaders are receptive to 

them. The question is whether positive engagement with the informal sector offers hope or 

whether it is better to distance ourselves from this community and allow it to carry on as it 

already does because of the potential for human rights abuses. 

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G. Successful Rule of Law Practices in Afghanistan 

Successful Practices: 

•	 Strive to understand the culture and the law, both in theory and in practice. 

•	 Seek to build simultaneously formal sector institutional capacity at the provincial and district levels in 

order to ensure that the political and budgetary power remains connected to the needs of the people. 

•	 Establish and maintain strong, open, and trusting relationships with all actors (Afghan, U.S. and 

International). 

•	 Employ Afghan attorneys to gain information, coordinate, train and put an Afghan face on your efforts. 

Many Afghan attorneys are very brave and highly dedicated. They can frequently go places where 

foreigners cannot and they will find out things that foreigners (especially members of a foreign military) 

would not. They understandably see themselves as working for the good of Afghanistan, not the U.S. 

Government. 

•	 Keep it simple. Pursue simple and practical schemes for building infrastructure, training, and raising 

legal awareness in accordance with the NJP and more detailed direction from higher headquarters. 

•	 Focus on people. Infrastructure and process are important, but educating, developing, mentoring and 

empowering Afghans is always best. 

•	 Understand how to leverage your ROL efforts with the resources of other U.S. and international 

agencies. 

•	 Understand CERP, Afghanistan Infrastructure Fund, ASFF, and how they may be used in supporting 

ROL projects. 

•	 Ensure coordination of ROL operations with other actors, such as civil affairs and civilian agencies as 

part of the larger governance strategy. 

Unsuccessful practices include a “go it alone” mentality that disregards the expertise and experience of 

others. Remember that many have come before you and are working alongside you albeit outside of your 

immediate view, including civilian agencies and, most importantly, the Afghans themselves. It is the Afghan 

peoples’ country, administered by their government and ministries. There simply is no purely local ROL 

problem in a country with a national government developing as quickly as Afghanistan’s. Any project that 

ignores the necessary relationships among foreign and host nation stakeholders is bound to fail in the long 

run, if for no other reason that there will be no national support to sustain it. Finally, analyze justice sector 

problems from a “system of systems” approach, do not just try to cultivate one justice actor, try to get him or 

her to work with others from different agencies (attorney generals, defense attorneys, criminal or national 

security investigators, or the huqooq). 

H. References and Further Reading 

1.	 Afghanistan Development Efforts 

•	 Afghan National Development Strategy, including JCMB reports: 

http://www.embassyofafghanistan.org/documents/Afghanistan_National_Development_Strategy_eng.pd 

f 

•	 ACBAR Guide to ANDS: http://www.crc-afghanistan.org/documents/acbar-s-guide-to-the-ands 

•	 Benchmark Status Report: http://www.tpc.org/reports/status/default.asp 

•	 International Crisis Group, Afghanistan’s Endangered Compact: 

http://www.crisisgroup.org/en/regions/asia/south-asia/afghanistan/B059-afghanistans-endangeredcompact.aspx 

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• Status Report on Provincial Justice Coordination Mechanism: 

http://www.undp.org.af/Projects/Q1.ProgRep.2010/PJCM_Q1_2010.pdf 

• National Justice Program Rome Conference Follow-Up: 

http://www.undp.org.af/whoweare/undpinafghanistan/Projects/dcse/prj_just.htm 

• Ashraf Haidari, Paris Conference: http://www.iaforum.org/Content/ViewInternalDocument.cfm?ContentID=6295 

• Report on Progress toward Security and Stability in Afghanistan: 

http://www.defenselink.mil/pubs/Report_on_Progress_toward_Security_and_Stability_in_Afghanistan_1 

230.pdf 

• Special Inspector General for Afghan Reconstruction Quarterly Report on Governance (July 2011): 

http://www.sigar.mil/pdf/quarterlyreports/Jul2011/LoresPDF/Governance.pdf 

• Secretary General’s Reports 2011: http://www.un.org/Docs/sc/sgrep11.htm 

• For a number of reports on Afghanistan: http://milnewstbay.pbwiki.com/CANinKandahar-Bkgnd 

2. The Afghan Legal System 

• A Guide to Researching the Law of Afghanistan at the University of Michigan Law Library (2003) 

http://www.law.umich.edu/library/students/research/Documents/afghanistan.pdf 

• Omar Sial, Islamic Republic of Afghanistan Legal System and Research (2006), available at 

http://www.nyulawglobal.org/globalex/afghanistan.htm 

• Hossein Gholami, Basics of Afghan Law and Criminal Justice, available at 

https://cac.tkeportal.army.mil/sites/jagkm/clamo/repository/whatshot/OEF%20%20Training%20%20Edu 

cation/Basics%20of%20Afghan%20Law%20and%20Criminal%20Justice.pdf (AKO or CAC 

authentication required) 

• The Clash of Two Goods—State and Non-State Dispute Resolution in Afghanistan (2006) 

http://www.usip.org/files/file/clash_two_goods.pdf 

• The Customary Laws of Afghanistan—A Report by the International Legal Foundation (2004) 

http://www.usip.org/files/file/ilf_customary_law_afghanistan.pdf 

• Justice in Afghanistan, Rebuilding Judicial Competence After the Generation of War (2007) 

http://www.mpil.de/shared/data/pdf/armytage-justice_in_afghanistan.pdf 

• Afghan Legal History Project of Harvard Law School’s Islamic Legal Studies Program 

http://www.law.harvard.edu/programs/ilsp/research/alhp.php 

• Afghanistan’s Legal System and its Compatibility with International Human Rights Standards 

http://www.unhcr.org/refworld/pdfid/48a3f02c0.pdf 

• Official Site of the Afghan Ministry of Justice http://www.moj.gov.af/en 

• Official Site of the Afghan Supreme Court http://www.supremecourt.gov.af/en 

• Organisation and Jurisdiction of the Newly Established Afghan Courts—The Compliance of the Formal 

System of Justice with the Bonn Agreement 

http://www.mpil.de/shared/data/pdf/moschtaghi_organisation_and_juristiction_of_newly_established_af 

ghan_courts1.pdf 

• Informal Dispute Resolution and the Formal Legal System in Contemporary Northern Afghanistan 

(2006) http://www.usip.org/files/file/barfield_report.pdf 

• Development Report, Bridging Modernity and Tradition: Rule of Law and the Search for Justice (2007) 

http://hdr.undp.org/en/reports/nationalreports/asiathepacific/afghanistan/name,3408,en.html 

• Afghan Customary Law and its relationship to Formal Judicial Institutions. 

http://www.usip.org/files/file/barfield2.pdf 

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II. Iraq 

A. International Framework 

Initially after the liberation of Iraq, unlike Afghanistan, there was no overarching UN-organized coordination 

of ROL tasks among lead nations. Given the initial absence of UN assistance and other substantial 

international presence, the task of post-conflict operations, including ROL, fell almost exclusively to the 

United States. However, as of 2010, international presence and assistance in ROL has increased 

substantially. The UN maintains a specific operation for Iraq (the United Nations Assistance Mission for 

Iraq), as do the European Union and several NGOs.78 In 2010, international partners, including U.S. 

representatives from the Chief of Mission-Iraq formed the Rule of Law International Policy Committee 

(RIPC) to coordinate ROL efforts in Iraq. In 2011, leadership of the RIPC was assumed by the UN, with 

several issue-oriented working groups created to provide more detailed coordination in areas such as 

extraditions, mutual legal assistance, juvenile justice, and trafficking in persons. 

B. U.S. Rule of Law Efforts: Transition from Military to Civilian Lead 

After the fall of Saddam Hussein’s regime, the U.S. Government formed the Coalition Provisional Authority 

(CPA) for Iraq until a formal indigenous government could be stood up. The CPA maintained authority over 

all legal, political, practical, economic, and security activities in Iraq. Initially, the U.S. military performed 

the large majority of ROL efforts. U.S. JAs helped plan for ROL reforms, and in the early stages of 

reconstruction in Iraq, they had to oversee the Iraqi justice system.79 Division SJAs and JAs serving in civil 

affairs brigades and battalions conducted a large majority of this early ROL effort.80 Over the years, the 

Iraqi justice system gained capacity and independence of operations and no longer needs heavy support from 

U.S. forces. 

The 1968 Iraqi Constitution was annulled in 2003. An interim Iraqi Constitution was promulgated in 2004 

which was followed, after a transitional period, in 2005 by the current Iraq Constitution. That document 

established and laid the foundation for the current government and disestablishment of the CPA. By this 

point, the State Department and Multi-National Forces-Iraq were fully engaged in ROL efforts. Initially, 

according to a 2005 assessment by the State Department Inspector General, “A fully integrated approach to 

ROL programs in Iraq is essential and does not exist at present.”81 

The ROL coordination structure for Iraq has varied during the course of operations.82 The U.S. Embassy in 

Baghdad is currently the largest in the world, having more personnel and more agencies represented than any 

78 MNF-I (OSJA) Rule-of-Law Programs in Iraq: March 2006 Inventory 5-7 (2006) [hereinafter MNF-I Rule-of-Law 

Inventory].

79 CENTER FOR LAW AND MILITARY OPERATIONS, LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ, VOLUME 

II, 253 (2005). 

80 Id. at 254–55. 81 OFFICE OF THE INSPECTOR GENERAL, INSPECTION OF RULE-OF-LAW PROGRAMS, EMBASSY BAGHDAD 1 (2005), 

available at http://oig.state.gov/documents/organization/103473.pdf (last visited August 16, 2011). 82 Several NSPDs have been adopted pertaining to Iraq, which set policy and allocated responsibilities among the 

various USG agencies. NSPD-24, adopted in 2003, which is no longer in effect, set forth the framework for post-war 

Iraq reconstruction. It remains classified. In May 2004, NSPD-36 set forth inter-agency responsibilities that would 

control subsequent to the Coalition Provisional Authority (which ceased operations on June 28, 2004). National 

Security Presidential Directive/NSPD-36, United States Government Operations in Iraq, May 11, 2004, available at 

http://www.fas.org/irp/offdocs/nspd/nspd051104.pdf (last visited August 14, 2011). It provides that the Chief of 

Mission in Iraq is “responsible for direction, coordination and supervision of all United States Government employees, 

policies, and activities in country, except those under the command of an area military commander, and employees 

seconded to an International Organization.” It states that the Secretary of State “shall be responsible for the continuous 

supervision and general direction of all assistance for Iraq,” but, it reserves the authority for the Commander, 

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other U.S. Embassy—even more so than in Afghanistan. As a result, the efforts vary widely based on the 

needs of individual locations, from judicial education programs to improving the security infrastructure of 

local courts and police. 

To improve the oversight and coordination of ROL programs in Iraq, the Chief of Mission established the 

Rule of Law Coordinator’s (RoLC) office (see organization chart below). The RoLC provides direction, 

oversight and support to the approximately 200 Embassy personnel engaged in promoting justice in Iraq, 

ensuring that they design and implement ROL programs consistent with the Embassy’s overall plan. The 

RoLC office attempts to establish a fully integrated approach that works in partnership with the USF-I Office 

of the Staff Judge Advocate (OSJA) Rule of Law section and personnel from the Bureau of International 

Narcotics and Law Enforcement Affairs (INL). 

By 2009, the lead for ROL efforts in Iraq began to slowly transform from a DOD lead implemented by JAs at 

various Brigade, Division, Corps, and Force Headquarters levels to a DOS lead through the RoLC 

implemented by Resident Legal Advisors (DOJ AUSAs) and Rule of Law Advisors (DOS-hired legal 

practitioners). Several members in the RoLC are personnel from DOJ that contribute to DOS’ ROL mission. 

In August 2010, USF-I successfully transitioned the ROL Line of Operation under the JCP to the U.S. 

Embassy’s RoLC office. In mid-2011 the Chief of Mission created a new position, Assistant Chief of 

Mission for Law Enforcement Assistance. Although the primary objective of this new position is to oversee 

the INL-run Police Development Program (PDP), the Assistant Chief of Mission for Law Enforcement 

Assistance will also coordinate law enforcement and ROL assistance programs, which were responsibilities 

originally assigned to the RoLC. Accordingly, in late 2011 the office of the RoLC was ended, and 

supervision of DOJ personnel in Iraq was assumed by the Justice Attaché. 

Editor’s Note: If the above description of the historic ROL work in Iraq appears complex and confusing, 

imagine how it must have appeared to Iraqi personnel who were on the receiving end of the programs? 

Conversations with a Ministry of Interior Iraqi lawyer indicate that they felt overwhelmed and confused by 

the myriad of programs and foreign personnel that they were required to deal with. And interestingly, 

notwithstanding the interagency nature of these personnel, he and his colleagues tended to view all those 

foreign personnel, including PRT members, as being in some way linked to the U.S. military. 

C. Current U.S. Rule of Law Strategy – Implemented Through Interagency Rule 

of Law Coordination Center (IRoCC) 

The governing strategy for ROL efforts in Iraq is contained within the U.S. Embassy Baghdad and United 

States Forces-Iraq co-signed Joint Campaign Plan (JCP). The JCP includes a ROL annex. By early 2010, 

the newly issued JCP shifted the lead for ROL efforts from the military to the RoLC with substantial support 

by USF-I JAs and JAs at the division and brigade levels, working in support of ROL personnel at the 

Embassy and PRTs. Thus, the RoLC took lead while USF-I’s Rule of Law section was fully integrated 

within the RoLC. 

USCENTCOM, coupled with the policy guidance from the Chief of Mission, to direct all USG efforts and coordinate 

international efforts in support of organizing, equipping, and training all Iraqi security forces. It notes that “[a]t the 

appropriate time, the Secretary of State and the Secretary of Defense shall jointly decide when these functions shall 

transfer to a security assistance organization and other appropriate organizations under the authority of the Secretary of 

State and the Chief of Mission....” NSPD-37, also adopted in 2004, directed the Attorney General to establish an office 

to provide support to the GOI efforts to investigate and try former regime officials. Its charge was limited to assisting 

the Iraqi Higher Tribunal. See NSPD-37, Relating to Support of Iraqi Government, May 13, 2004. It is not publically 

available. See index of NSPDs at http://www.fas.org/irp/offdocs/nspd/index.html (last visited August 16, 2011). 

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US Embassy Iraq – Rule of Law Organization 

Flowing from the JCP, all USG ROL efforts are succinctly organized into subject matters broken down into 

six categories: (1) Judiciary; (2) Law Enforcement; (3) Corrections and Detentions; (4) Commercial and 

Property Law; (5) Anti-Corruption; and (6) Access to Justice and Enhancement of the Legal Profession. 

Because multiple U.S. agencies are involved in these efforts, achieving unity of command or control of these 

agencies’ ROL efforts is not mandated. Historically, these agencies’ efforts were coordinated through the 

Interagency Rule of Law Coordination Center (IRoCC). The IRoCC was comprised of working groups 

geared to various subject matters, which mirrored the JCP Lines of Operations, including Judiciary, Law 

Enforcement, Corrections/Detentions, Anti-Corruption, Commercial and Property Law, Access to 

Justice/Enhancing the Legal Profession, and Information Technology. In July 2011, with the transfer of the 

IRoCC’s Law Enforcement working group from military to civilian control, the transfer of the IRoCC was 

completed. 

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Currently, the six categories mentioned in the previous paragraph are headed by the Department of State, 

which focuses on categories: 2 (Law Enforcement); 5 (Anti-Corruption); and 6 (Access to Justice and 

Enhancing the Legal Profession), and the Department of Justice, which focuses on categories: 1 (Judiciary); 

3 (Corrections and Detentions); and 4 (Commercial and Property Law). As stated above, the efforts of the 

Department of State are overseen by the Assistant Chief of Mission for Law Enforcement Assistance, and the 

Department of Justice efforts are overseen by the Justice Attaché. The two agency heads coordinate their 

respective efforts through the Law Enforcement Working Group, which is chaired by the Deputy Chief of 

Mission. 

1. Provincial Reconstruction Teams 

Iraq’s Provincial Reconstruction Team program concluded operations during the late summer of 2011 when 

the last PRTs closed. The robust physical presence that the PRTs provided in Iraq’s provinces was an 

unusual arrangement for the United States, which normally only maintains a diplomatic presence in the 

capitals of countries where it has an embassy. Below is a brief narrative of the history and structure of Iraq’s 

PRTs followed by a description of the current plan for USG provincial engagement in Iraq after the PRTs 

cease operations. 

Secretary of State Condoleezza Rice inaugurated the first PRT in Iraq in November 2005 by saying that these 

new entities would “marry our economic, military, and political people in teams to help local and provincial 

governments get the job done.”83 PRTs existed to “assist Iraq’s provincial governments with developing a 

transparent and sustained capacity to govern, promoting increased security and ROL, promoting political and 

economic development, and providing provincial administration necessary to meet the basic needs of the 

population.”84 

U.S.-led PRTs in Iraq differed significantly from their counterparts operating in Afghanistan. The PRTs 

were composed primarily of civilians and led by a senior State Department official, as opposed to the 

military-led Afghanistan PRTs. Moreover, the PRTs in Iraq emphasized shaping the political environment 

rather than building infrastructure as in Afghanistan.85 

The initial PRTs included representatives from the Departments of State, Justice, and Agriculture, as well as 

USAID, Army Civil Affairs teams and other military units. U.S. military forces or commercial contractors 

provided security and force protection for the PRTs, which resided at either a Regional Embassy Office or a 

military FOB. 

PRTs were expected to build the capacity of Iraqi government officials, foster development, promote the 

ROL, and promote reconciliation among different factions of the provincial populations. The goal was to 

create areas where provincial governments would have political space to operate and violent extremists could 

be brought under control. 

In 2007, the PRT program in Iraq created embedded PRTs (ePRTs) – PRTs working alongside Brigade 

Combat Teams (“BCTs”). The idea behind the new ePRTs was to allow for more unity of effort between the 

BCT and the PRT. The new ePRTs focused on Iraq’s lower-level district governments, while the original 

PRTs worked predominately with provincial governments. 

83 Robert Perito, Provincial Reconstruction Teams in Iraq, USIP Special Report 185, March 2007, available at 

http://www.usip.org/resources/provincial-reconstruction-teams-iraq (last visited July 22, 2010). 84 Id.
 85 See Miles, supra note 27, Statement of Mark Kimmitt, Deputy Assistant Secretary of Defense, Near Eastern and 

South Asian Affairs, pointing out that PRTs in Iraq have a different function and role than those in Afghanistan “and are 

achieving different effects.” Their mission is to help Iraq’s provincial and local governments by promoting security, 

rule of law, and political and economic development. Meanwhile, they also help the government provide provincial 

administration necessary to meet the people’s basic needs. Id.
 

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In this configuration, the BCT and PRT worked cooperatively as a team, receiving guidance from both the 

Ambassador and the USF-I Commander. The BCT commander took the lead on issues related to security 

and movement. The PRT team leader bore primary responsibility for engaging with the provincial 

government, particularly with respect to political, economic, and development issues. The BCTs provided 

the PRTs with security, life support, and operational support. PRT members traveled outside their forward 

operating bases with military movement teams. This arrangement made it easier for civilian PRT members 

to work “outside the wire” and increased PRT contact with their Iraqi counterparts. 

Each PRT was led by a senior State Department Foreign Service Officer. The team’s composition varied 

depending on the province’s circumstances and the team leader’s vision. Each team generally included 

several State Department FSOs in addition to State-contracted experts (3161s) in subject matters such as 

business development, city management, ROL, and governance. The PRT usually included a USAID 

representative. The Departments of Justice and Agriculture provided subject matter experts to serve on many 

provincial teams. Additionally, DOD service members filled select PRT billets (e.g., Deputy Team leaders), 

as well as contracted bilingual-bicultural advisors (BBAs). Military civil affairs units also worked closely 

with PRTs throughout Iraq. 

Initially, the goals of the PRT program were vague.86 As the House Armed Services Committee put it in a 

2008 report, “Nor are there agreed objectives, delineation of authority and responsibility between the civilian 

and military personnel plans, or job descriptions.”87 However, progress towards addressing some of these 

problems occurred on 19 August 2008, when DOS and MNF-I issued a joint strategy titled Strategic 

Framework to Build Capacity and Sustainability in Iraq’s Provincial Governments, which replaced the 

original cable establishing the PRT program.88 

Multi-National Force-Iraq and the Embassy agreed to a Joint Campaign Plan to build Iraq’s civil capacity in 

governance, economics, ROL, and political reconciliation. The Embassy’s Office of Provincial Affairs 

(OPA) managed the PRTs in Iraq. OPA coordinated PRT activities and provided administrative support for 

all PRT civilians, whereas USF-I provided military personnel and supported PRTs operating from U.S. 

military bases. 

At the beginning of 2011, there were 16 PRTs still in operation. The Iraqi Kurdistan Region had a regional 

reconstruction team that operated like a PRT. Iraq’s fifteen other provinces each had a PRT. Karbala’s PRT 

was the first to close down on May 1, 2011. The final PRTs in Anbar, Diyala, and Ninewa are scheduled to 

begin closing down in early September 2011. 

D. The Way Forward 

The United States has expended vast resources since 2003 towards developing the capacities of Iraq’s 

provincial governments. Valuable knowledge and relationships have resulted from this unprecedented level 

of engagement with officials in Iraq’s 18 provinces. The U.S. Embassy is committed to maintaining 

provincial engagement going forward, while recognizing that the robust presence provided by the PRTs will 

no longer be a reality. 

86 See Perito, supra note 83. 87 Id. See also House Armed Services Committee, Sub-Committee on Oversight and Investigations, Agency Stovepipes 

vs. Strategic Agility: Lessons We Need to Learn from Provincial Reconstruction Teams in Iraq and Afghanistan (April 

2008) 18. 

88 The Strategic Framework Agreement provided that : 

The framework identifies, at the PRT level, three separate elements that are linked in the coordinated assessment and 

planning process: the quarterly maturity modeling assessments, the Unified Common Plans which are developed in 

partnership by PRTs and their partnered military units, and actionable PRT work plans linked to the Unified Common 

Plans and assessments. These three documents are critical to achieving the events that will trigger the drawdown and 

close out of PRTs. 

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The Embassy’s plan going forward includes hiring a number of Iraqi nationals as cultural advisors (CAs), in 

order to provide the Embassy with situational awareness of the provinces. Each of these Iraqis has served as 

a linguist for their respective PRT and comes well-recommended by the PRT for character, loyalty and 

initiative. The official job requirements for the CA include: 

•	 Serving as a liaison with provincial leadership, political parties, and other leaders; 

•	 Arranging and attending meetings between Embassy representatives and local officials, NGOs and other 

individuals and organizations; 

•	 Being cognizant of political, educational, and economic developments; and 

•	 Being aware of provincial media, particularly of news stories that impact U.S. policy. 

The CA will submit weekly reports describing his work and observations to a Virtual Principal Officer 

(VPO) at the Embassy. The VPO is responsible for monitoring both the substance of the CA’s reports and 

his weekly work schedule. The nine provinces nearest to Baghdad (Ninewa, Diyala, Salah ad Din, Anbar, 

Karbala, Najaf, Wasit, Babil, and Diwaniyah) will each have one CA and one VPO assigned. Therefore, the 

PRT, with its numerous civilians and military support, will be replaced by one CA and one VPO. Clearly the 

level of provincial engagement will be much reduced, but this program will allow the USG to maintain some 

level of awareness of and influence in Iraq’s provinces. Similar provincial engagement plans have been 

executed successfully in other countries, but under different conditions than the United States will face in 

Iraq. 

As Iraq’s political and commercial capital, Baghdad province will be treated differently. There will be five 

CAs assigned to Iraq’s most populous province. The Embassy’s Economics, Political, Rule of Law, Public 

Affairs and Refugee Coordination Sections will each supervise one CA, who will focus his efforts upon that 

particular subject matter (e.g., Rule of Law will supervise a CA who will focus on ROL issues). 

The Provincial Coordination Cell will direct policy for the nine provinces outside Baghdad. Each Embassy 

section will have a representative on this team that will provide direction for the Cultural Advisors and their 

Virtual Principal Officers. For Baghdad, similar functions will be directed by the Baghdad Provincial Team. 

The Provincial Engagement Working Group, chaired by the Embassy’s Deputy Chief of Mission, will serve 

as higher headquarters for both the Provincial Coordination Cell and the Baghdad Provincial Team. 

In July 2011, the Embassy opened Consulates General (CG) in Erbil and Basrah. The Erbil Consulate 

General has responsibility for the northern provinces of Dohuk, Erbil, and Sulamaniyah, and it will oversee 

the CAs assigned to those provinces. CG Basrah will supervise the CAs in Dhi Qar, Muthanna, Maysan, and 

Basrah. Kirkuk will open as a consulate in the Fall of 2011 and will have three CAs assigned to that 

province and consulate. 

E. Iraqi Criminal Law and Criminal Procedure 

1.	 Legal History 

Iraq has a long and complex history as the center of Islamic jurisprudence. Practice developed initially from 

laws promulgated by city-states,89 and multiple conquerors brought their respective legal customs and 

traditions. 

Following the Mongol invasion in the thirteenth century, the Ottoman Empire controlled much of the region 

(including Basra, Baghdad, and Mosul) from the fourteenth to the twentieth century. The legal system 

89 By the 18th Century BC, rulers from the city of Babylon had created a detailed unifying code, covering all aspects of 

the law, in a language (“cuneiform”) broadly understood by the people of the region. The carving of the laws into stone 

monuments ensured they were publically available and understood. 

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included aspects of both the Sharia and an Ottoman Code.90 As Ottoman influence over the region decreased 

in the nineteenth century, however, significant reforms based on the European civil law system took place. 

These reforms included the establishment of secular (non-religious) legal schools (which were originally 

known as a “College of Rights”) and led to the generation of legal codes91 with heavy influence from the 

European civil law system. 

The creation of a British Mandate during the early twentieth century saw the establishment of a governing 

elite of state officials and officers. The British formed a government to administer Iraq, adopting a 

constitutional monarchy with a parliament and a king.92 The British introduced, with some success, a Tribal 

Civil and Criminal Disputes Regulation modeled after a similar law in India. This gave certain selected 

sheiks the authority to settle all disputes within their tribes and to collect taxes for the government. In 1932, 

the British Government supported Iraq’s membership in the League of Nations, which led to Iraq becoming 

an independent state. 

Several attempts at legal reform followed. A quest for codification began in 1933, and after several 

interruptions, codification was completed in the early 1950s. Abdul al-Razzar Al-Sanhuri, a Frencheducated Egyptian legal scholar who had drafted the Egyptian legal code, oversaw the process.93 Although 

based on the European civil law model, the Iraqi legal code still referenced Islamic law. For example, in 

cases not provided for by the code, the Iraqi Courts could turn to the Islamic Sharia to decide the merits of 

the dispute. 

Following a series of coups d’etat, the Iraqi arm of the Arab Ba’ath party, led by Hassan al-Bakr,94 came to 

power in 1968. The Ba’athists introduced a new constitution in 1970. Subordinate to it were five major 

codes legal codes forming the main legal pillars. These governed civil law, civil procedure, commercial law, 

criminal law, and criminal procedure.95 During the Ba’ath party rule, there was, effectively, no independent 

judiciary. Instead, the judiciary fell under the Ministry of Justice, which was itself under the control of the 

Prime Minister, who was also the President (of the Revolutionary Council). The Revolutionary Council had 

the constitutional power to issue orders that had the force of law. To further weaken the ROL, the 

Legislature, which in theory made the law, was itself widely viewed as a puppet of the Executive. 

Furthermore, all judges were required to be members of the Ba’ath Party. The impact of this requirement, 

had, unsurprisingly, far reaching effects on the Iraqi judiciary when CPA Order 1 (De-Ba’athification of Iraqi 

Society) was promulgated. 

2. Judicial Structure and Division of Powers - Penal System96 

The Iraqi Criminal Courts operate on a hierarchical system from the highest appellate court97 (the Court of 

Cassation) to lower appellate courts and the courts of first instance. All are nationally controlled and the 

90 The “majele al akhaam al-’adliyyah”. Editor’s Note: This “code” has also been described as being more akin to a 

set of judicial procedural rules than a “Code” proper.

91 A Penal Code introduced in 1858 used the French Penal Code of 1808 as a model, followed by a Commercial 

Procedures Law of 1861 and a Civil Code of 1876. 

92 The British appointed as the first monarch Prince Faisal Hussein, a Sunni member of an influential family in the Arab 

world, but not an Iraqi.

93 The Egyptian code was the model for the legal systems of Libya, Qatar, Sudan, Somalia, Algeria, Jordan, and Kuwait. 

94 Al-Bakr was the head of the Revolutionary Command Council. Saddam Hussein was al-Bakr’s vice president. The 

Arab Ba’ath party was led, at this time, by the Syrian born Michel Aflaq. 

95 The Civil Code law No. 40 of 1952 (as amended). Civil Procedures law No. 83 of 1969. Law of Commerce No. 30 of 

1984. Law of Criminal Proceedings with amendments No 23 of 1971. 

96 This summary concentrates solely on the criminal law system. Judge advocates wishing to research aspects of the 

Iraqi Civil and Commercial Laws may wish to study the summary produced by the Office of the General Counsel at the 

U.S. Department of Commerce, available at http://trade.gov/iraq/ (last visited July 22, 2010). 97 The Court of Cassation is the highest appellate court for criminal and civil cases. This is not to be confused with the 

Federal Supreme Court which is a separate court designated by the Iraqi Constitution. The Federal Supreme Court 

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former has jurisdiction over all Iraqi territory. The appellate and courts of first instance are organized 

provincially and have jurisdiction over offenses committed within their own provinces. 

The criminal trial courts are subdivided into felony courts, which deal with cases where the maximum 

penalty is more than 5 years imprisonment, and misdemeanor courts, which have jurisdiction over offenses 

where the maximum penalty is 5 years or less. 

There are 18 appellate regions nationwide, largely based on the geographic provincial boundaries. These 

serve as courts of appeal for lower courts.98 Moreover, the Federal Court of Cassation hears appeals from 

Courts of Appeal and the Central Criminal Court of Iraq (CCCI).99 

Special Juvenile Courts deal with offenses committed by minors, defined as those under 18. The minimum 

age of criminal responsibility under Iraqi law is 7 years. Limitations exist on the sentencing of juveniles: 

offenders aged between 9 and 14 may be sentenced to a maximum of 12 months detention. Offenders ages 

14–18 may receive a maximum of 5 years. 

As in most civil code (criminal) systems, investigative judges collect and review all evidence during the 

investigative phase of proceedings and determine whether to transfer the case for trial. They exist within 

most, if not all, of Iraq’s courthouses. 

3. Sources of Iraqi Criminal Law 

Following the establishment of the Coalition Provisional Authority (CPA) (after the U.S.-led invasion in 

2003), the CPA took steps to reintroduce the Iraqi Law in existence before Saddam Hussein became head of 

state in 1979. As far as the criminal code and procedure were concerned, this was the result of two CPA 

Orders. CPA Order No 7100 reintroduced the Penal Code of 1969, and CPA Memo No 3101 reintroduced the 

Law of Criminal Procedure of 1971. 

The following is a working summary of both codes aimed at JAs working within the ROL arena. 

4. Iraqi Criminal Procedure102 

On paper, the Iraqi law of criminal procedure is one of the most advanced secular systems in the region. As 

with most civil law systems, there are two distinct limbs: the investigative phase and the trial process. 

Unlike their common law counterparts, however, both phases have significant judicial involvement. 

does not serve a traditional appellate function. Under the Constitution, the Federal Supreme Court is empowered to 

interpret the Constitution, settle matters related to application of legislation, and certify election results among other 

matters. See Iraqi Constitution, Articles 92–94. 

98 See generally Book Four and Para 177 Law on Criminal Proceedings No 23 of 1971. 

99 On 22 April 2004, CPA Order 13 created the CCCI. The intent was for CCCI to serve as a complementary court to 

assist the existing misdemeanor and felony courts. Originally based in Baghdad, the CCCI expanded to other provinces 

before being reduced to the original Baghdad location. The CCCI has jurisdiction over all offenses that felony and 

misdemeanor courts may hear. By design, it concentrates on serious crimes, terrorism, organized crime, and 

government corruption. Since its creation in 2004, the CCCI has heard over 10,000 cases (Y ‘06- 2,620 cases, Y ‘07­

2,875 cases Y ‘08- 2,193 cases, Y ‘09- 3,172 cases, and Y ‘10- 2,016 cases). This includes many cases referred by TF 

134. As of 2010, the size of the staff and judges of CCCI has shrunk considerably within Baghdad. 100 See http://www.iraqcoalition.org/regulations/20030610_CPAORD_7_Penal_Code.pdf (last visited Aug 9, 2011). 101 See http://www.iraqcoalition.org/regulations/20040627_CPAMEMO_3_Criminal_Procedures__Rev_.pdf (last 

visited Aug 9, 2011).

102 See http://law.case.edu/saddamtrial/documents/Iraqi_Criminal_Procedure_Code.pdf (last visited Aug 9, 2011). 

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a. The Investigation 

Initiation of criminal proceedings occurs through an oral or written complaint to an investigative judge (IJ), 

police investigator or official, or member of the judicial system. IJs103 or investigators acting under their 

supervision,104 often called Judicial Investigators, conduct the criminal investigation. This includes 

examining the scene and noting evidence of the offense and injuries sustained. 

Police who receive allegations about an offense have a requirement to immediately record the informant’s 

statement and immediately inform the IJ, further emphasizing the IJ’s role at the heart of a case. 

The respective roles undertaken by IJs and the police vary tremendously in Iraq today. Some units report 

that the police play a dominant role in the investigative process. Others suggest the IJ is the driving force 

behind the investigation. Whatever the practical reality is, as a matter of law, the IJ must be involved in the 

process as it is the IJ who sends the case forward to the trial court. It is likely that the enormous disparity in 

resources between the police and judiciary is producing a systemic change in the dynamics of the 

investigatory process, with the police increasingly leading that effort. 

The basic obligations of the investigators commences with the recording of the deposition of the person 

making the allegation. This is followed by testimony from the victim and other witnesses or persons whom 

the parties or IJ wish to hear.105 Witnesses who are over fifteen years old give evidence under oath.106 

The IJ will supervise the police investigators throughout the investigation phase.107 The defendant has the 

right to present his own evidence, and make comments on the evidence. Additionally, subject to the consent 

of the IJ, the defendant can put questions to the witness.108 Indeed, the investigator can compel the 

complainant or defendant to co-operate in a physical examination, or in the taking of photographs or 

samples.109 

Routine searches require a warrant issued by an IJ,110 except in cases of necessity.111 There are also 

provisions for the preservation of evidential integrity. 

b. Arrest and Pre-trial Custody112 

For offenses subject to a sentence of one year imprisonment or less, the IJ invites (by way of a summons) the 

accused to appear before him. If the accused fails to attend, the IJ will issue an order requiring the accused to 

attend. If the accused still fails to attend, the IJ will issue an arrest warrant which the police will then 

execute. For offenses subject to a sentence of more than one year imprisonment or the death penalty, an 

arrest warrant will be immediately issued by the IJ.113 The police have a duty to arrest those carrying arms 

openly in violation of the law. Moreover, any person may arrest someone who is accused of a felony or 

misdemeanor where they have personally witnessed the commission of a crime.114 

103 Art. 51 Law on Criminal Proceedings No 23 of 1971. 104 Art. 52 Law on Criminal Proceedings No 23 of 1971. 105 Art. 58 Law on Criminal Proceedings No 23 of 1971. 106 Art. 60 B Law on Criminal Proceedings No 23 of 1971. 107 Art. 51 Law on Criminal Proceedings No 23 of 1971 108 Art. 63 B Law on Criminal Proceedings No 23 of 1971. 

109 Art. 70 Law on Criminal Proceedings No 23 of 1971. 110 Arts. 72–86 Law on Criminal Proceedings No 23 of 1971. 111 This includes searches of a location to undertaken to locate someone who has sought assistance from authorities and 

in cases of fire or suspected drowning. 

112 Art. 92s–120 Law on Criminal Proceedings No 23 of 1971. 113 The warrant, which is valid in all provinces and remains current until executed or cancelled, should include details of
 

the accused, the type of offense, and be signed and stamped by the court. Art. 99 Law on Criminal Proceedings No 23 

of 1971. 

114 Art. 102 Law on Criminal Proceedings No 23 of 1971. 

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If the suspected offense carries imprisonment as a possible sentence, the IJ may initially order the detention 

of the accused for a period of up to 15 days. If the offense carries a maximum sentence of 3 or more years, 

or the death penalty, the IJ must order custody. The IJ may renew this order at the termination of the period 

for up to an additional 15 days. This process of renewed police custody authorization is subject to a 

maximum period that is determined by the length of the potential maximum sentence, but which in any event 

cannot exceed 6 months.115 Where the IJ considers that more than 6 months custody is necessary, a decision 

on further custody will be taken by a panel of judges sitting (Heiah) in the felony court. If the panel of 

judges orders continued custody, the accused will be transferred from MOI police custody into Ministry of 

Justice (MOJ) prison custody. This control over pre-trial detention should place the case of any detainee 

within both the knowledge and control of the judiciary. In theory, it provides an important check and 

balance to instances of police wrongdoing. In practice, detention within the Iraqi criminal justice system has 

garnered much criticism in recent years.116 

Release on bail is possible if the IJ, or felony court panel of judges, determine that the release will not lead to 

escape or prejudice the investigation. As previously mentioned, theory does not equate to practice in many 

respects. The large numbers held in by the Iraqi criminal justice system and the speed with which Iraqi 

courts are able to dispose of cases has hampered efforts to adhere to these strict time limits. 

c. Questioning the Accused 

The IJ or investigator is required to question the accused within 24 hours of arrest and record the statement of 

the accused. If the statement includes a confession, the IJ must record the statement personally, read it back 

to the accused, and then both the IJ and the accused must sign it. CPA Memo 3 incorporated into Iraqi Law 

the right to silence and the right to legal representation (which can be waived).117. However, in some 

circumstances the IJ can conduct a “closed” investigation where no legal representation is permitted. 

The law does not permit the use of illegal methods to influence the accused or extract a confession. These 

methods include: mistreatment, threats, injury, enticement, promises, psychological influence, and the use of 

drugs or intoxicants.118 

d. Trial 

At the end of the investigation, the IJ decides if there is an offense over which he has authority to act, and if 

there is sufficient evidence for a trial. If there is sufficient evidence, the IJ transfers the case to the 

appropriate court.119 If the evidence does not meet the requisite standard, the authorities must release the 

accused or return the accused to confinement and order further investigation. In practice, many detainees are 

not released because the releasing orders often have contained the qualifier that release is conditional on 

there being no other charges pending. The lack of an easily searched database of such other charges often 

means the detainee remains in custody for a prolonged time. 

115 Art. 109 Law on Criminal Proceedings No 23 of 1971. 116 Various reports have documented the abuse and torture of those in police detention. See United Nations Assistance 

Mission for Iraq, Human Rights Report, 1 July – 31 December 2008, available at
 

http://www.uniraq.org/documents/UNAMI_Human_Rights_Report_July_December_2008_EN.pdf (last visited Aug 9,
 

2011); and US Department of State, 2008 Human Rights Report: Iraq available at
 

http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm (last visited Aug 9, 2011). Unfortunately, these reports 

continue. See Human Right’s Watch Iraq – Secret Jail Uncovered in Baghdad, 

http://www.hrw.org/news/2011/02/01/iraq-secret-jail-uncovered-baghdad.
 117 CPA Memo 3, Section 4c. 118 Art. 127 Law on Criminal Proceedings No 23 of 1971. 

119 Art. 130 Law on Criminal Proceedings No 23 of 1971. 

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If the court determines that a trial should take place, the court prosecutor is appointed.120 The prosecutor, or 

the trial court, may refer the file back to the IJ if they deem it necessary to collect additional evidence. 

Additionally, the trial court may summon a witness to attend at the court hearing. The charge is presented to 

the accused by the trial court.121 

The burdens and standards of proof are similar to common law systems. The Iraqi Law requires a 

“sufficiency of evidence” for conviction.122 In practice, this is similar to a “beyond a reasonable doubt” 

standard. 

When compared to criminal trial under a common law system, the significant judicial involvement in the 

investigative phase often reduces the extent to which evidence requires testing at trial. It is common for the 

trial judge to be satisfied with the IJ’s investigation of the evidence. Rather, the trial judge tends to focus on 

certain aspects of the evidence with which he or she wishes to take issue.123 

The role of counsel at trial also differs significantly when compared to the common law system. Again, as 

characterized by an inquisitorial process, the trial judge will undertake much of the questioning. Indeed, in 

some trials, the role of the advocates may be effectively limited to making opening and closing addresses. 

The court may ask the defendant any questions he or she deems relevant.124 While the right to counsel is 

enshrined in Article 19 of Iraq’s new Constitution and the criminal code, counsel will often not have had 

time to take effective instructions from their client. Indeed, some may only meet their client for the first time 

on the morning of trial—even for capital offenses. 

In order to secure a conviction, the court must have evidence from at least two sources.125 This may include 

individual witness testimony supported by physical evidence, forensic evidence, etc. 

If a confession obtained by the police is before the court, this may end the trial process—akin to a guilty 

plea. However, the court will often examine the validity of the confession before accepting it. Iraqi Courts 

provide written reasoning along with their findings as well as, if appropriate, reasons for the sentence. 

5. The Substantive Criminal Law: Iraqi Penal Code – No 111 of 1969126 

In 1918, the Supreme Commander of British Forces of Occupation in Iraq created “The Baghdad Penal 

Code.” As the title suggests, it was initially limited to the capital. However, it later had national application. 

Although a new draft code was produced in 1957, it was not until 1969 that the Iraqi Penal Code No 111 

replaced the Baghdad Penal Code. 

The Code, which in translation runs some 139 pages, was the result of jurisprudential study, scholarly 

research, and judicial pronouncements, as well as findings of Arab, regional, and international committees. 

A detailed study of the individual offenses it contains is beyond the scope of this Handbook, but it contains a 

two-part structure. Part One provides detailed guidance on matters such as jurisdiction, elements of crimes, 

defenses, secondary participation, penalties, and amnesties. Part Two contains the full catalog of criminal 

offenses including offenses against person, property, state, against the due process of law, offenses that 

endanger the public, drunkenness, sexual offenses, trespass, and defamation. 

120 Art. 143 Law on Criminal Proceedings No 23 of 1971. 121 Art. 181 Law on Criminal Proceedings No 23 of 1971. 122 Art. 182 Law on Criminal Proceedings No 23 of 1971. 123 Art. 170 Law on Criminal Proceedings No 23 of 1971. 124 Art. 179 Law on Criminal Proceedings No 23 of 1971. 125 Art. 213B Law on Criminal Proceedings No 23 of 1971. 126 See http://www.worldlii.org/catalog/54829.html (last visited Aug 9, 2011). 

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a. Recent Amendments 

Of the more recent amendments to the substantive criminal law, perhaps two are worthy of detailed 

comment. 

(1) Terrorism Law 

In November 2005, the Transitional Government enacted the Terrorism Law. The offense is widely defined 

as “any criminal activity ... aiming to disturb the national security and to society and cause riot and 

disturbance among people.”127 The sanctions for such offenses are understandably draconian. Article 4 

stipulates that anyone convicted of terrorist activity may receive a death sentence. Those who hide 

information about a terror activity or information that could lead to the arrest of terrorists can be sentenced to 

a maximum of 20 years imprisonment.128 

(2) Amnesty Law129 

An amnesty law, passed on February 27, 2008, allows for those under investigation for or convicted of the 

majority130 of offenses under the Iraqi Criminal code to be eligible to apply for amnesty. The decision as to 

whether an applicant receives amnesty rests with a committee made up of judges and public prosecutors. It 

should be noted, however, that that this only applies to offenses committed prior to February 27, 2008. 

Offenses not covered by the amnesty, include, terrorist activity that caused death or permanent disability, 

drug related offenses, and homosexuality. Within recent history, the allegations against a large percentage of 

detainees have tended to include charges under the Terrorism Law. While the detainee may receive amnesty 

for a minor charge, the detainee will remain in custody and investigation for the terrorism charge. 

The amnesty law also provides for procedure-related amnesty. Individuals detained for 6 months and not 

brought before the IJ must receive amnesty, as must those who have been detained for 12 months without 

their case being transferring to an appropriate court. These safeguards apply regardless of the suspected 

crime. By January 2009, amnesty review committees had granted amnesty to 23,500 Iraqis in detention, of 

whom 6,300 had been ordered released.131 

F. Security Agreement 

Commencing in 2004, MNF-1 activities were authorized in accordance with UN Security Council 

Resolutions (UNSCRs).132 However, UNSCR 1790, the most recent UNSCR to authorize MNF-1 activities, 

was due to expire on 31 December 2008. Consequently, the United States and Iraq entered into a bilateral 

Security Agreement on 18 November 2008. This agreement became effective on 1 January 2009, it 

127 See Art. 1 Terrorism Law 2005.
 128 Editor’s Note: Although the Iraqi penal code 111-1969 refers a sentence of “forever,” in practice, this equates to a 

sentence of 20 years. The concept of life imprisonment does not exist in Iraqi law. 

129 Law No 19 of 2008. 130 The law specifies that those sentenced to death or convicted of thirteen listed offenses are NOT eligible to apply 

under the amnesty law.

131 See DOD Report to Congress, Measuring Security and Stability in Iraq 3 (March 2009), available at
 

http://www.defenselink.mil/pubs/pdfs/Measuring_Stability_and_Security_in_Iraq_March_2009.pdf (last visited Aug 9, 

2011). 

132 UNSCR 1546, 8 June 2004 (authorizing internment where necessary for “imperative reasons of security”), available 

at http://www.iamb.info/pdf/unsc1546.pdf (last visited August 19, 2011); UNSCR 1790, 18 December 2007 (renewing 

MNF-I mandate until 31 December 2008). 

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authorized continued U.S. military activities in Iraq, and it required the redeployment of all U.S. Forces from 

Iraq by 31 December 2011.133 

In contrast with previous authorizing UNSCRs, the Security Agreement requires U.S. forces to arrest, search, 

and detain in accordance with Iraqi law.134 In most cases, this requires U.S. forces conducting such 

operations to obtain Iraqi arrest and search warrants. The exceptions to this rule include the ability to arrest 

without a warrant upon witnessing a crime, and to arrest or search during combat operations.135 

The Security Agreement also requires U.S. operations to be “fully coordinated” with Iraqi authorities.136 In 

most cases, this requirement is met by U.S. forces conducting combined operations with their Iraqi Security 

Force (ISF) counterparts. Ideally, those counterparts will obtain any necessary warrants from a local IJ. 

Exceptionally, U.S. JAs may be required to assist in obtaining warrants from local or CCCI IJs. Similarly, 

ISF partners rather than U.S. forces will normally be responsible for any detainees. U.S. forces who do 

detain Iraqis must obtain the consent of a competent Iraqi authority (a “CIZA”) to do so.137 

G. Engaging Iraqi Judges 

U.S. ROL practitioners’ ability to effectively conduct ROL operations largely depends on the degree of 

influence they have with the Iraqi judiciary. This influence is often derived from the level of respect the 

Iraqi judges have for their USG partners and advisors. The vast majority of the Iraqi judiciary are intelligent, 

educated and dedicated. As a result, coalition capacity building efforts with the judiciary have been 

tremendously successful, and the judiciary far exceeds most other Iraqi Government organizations in terms 

of transition, growth, and independence since 2003. In order to understand the dynamic relationship between 

the Iraqi judiciary and other branches of the Iraqi government, the ROL practitioner must understand that 

“judicial independence” is a relatively new concept in Iraq. While Iraqi judges have made great strides 

towards exercising more judicial independence, those working with them must always remain sensitive to the 

cultural and historical norms that tend to hinder judicial independence in Iraq. 

Relationships start with respect, dignity, and hospitality. Just as in the United States, Iraqi judges expect a 

level of respect and honor. A failure by ROL practitioners to engage with the requisite amount of respect 

will result in weaker relationships and limited accomplishments. Conversely, the willingness of ROL 

practitioners to be sensitive to Iraqi and Arab cultural mores makes all the difference in the development of 

the relationship.138 The educated Iraqi judiciary has upfront expectations and assumes that coalition forces 

are educated and sophisticated enough to engage properly. These expectations must be met. 

The perception of a judge that he is being shown respect commensurate with his position is by far the most 

significant area to leverage. Respect is shown in many ways. First it is shown in the consistency of the 

engagements, their length, and their tone. Judges should be engaged regularly. To establish the relationship 

consider more frequent engagements at the beginning. Respect is also shown in the use of proper Arabic 

phrases and acknowledgement of basic Iraqi culture. Addressing judges in honorific terms, in Arabic, shows 

a judge that you have made the effort to show respect. This will help achieve reciprocal treatment and 

further the goals of the engagement. 

133 Agreement Between the United States and the Republic of Iraq On the Withdrawal of United States Forces from Iraq 

and the Organization of Their Activities during Their Temporary Presence in Iraq, (Nov. 17, 2008), available at
 

http://www.usf-iraq.com/images/CGs_Messages/security_agreement.pdf (last visited Aug 9, 2011).
 134 Id. Art. 22; see also Commander Trevor A. Rush, Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security 

Agreement, May Army Lawyer, 34 (2009). 135 Rush, supra note 134, at 43–44. 136 Security Agreement, Art. 4(2). 137 Security Agreement, Art. 22(2). 138 See Arab Culture Awareness: 58 Fact Sheets, TRADOC DCSINT Handbook No.2, January 2006. 

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While Iraqi relationships and government structures are dominated by Islamic tradition, most judges are 

secular in their professional roles. Moreover, they are sophisticated enough to realize that many coalition 

engagement “blunders” are due to ignorance, with no offense intended. Judges may overlook insensitive and 

disrespectful behavior if it is believed to be unintentional. However, if the goal is to build an effective 

professional relationship, the coalition engager must take the time to learn things the “Iraqi way.” 

It is important to engage the right personnel. The Iraqi legal system is hierarchical; the local investigative 

judge answers to his court’s chief judge. That judge answers to the chief provincial judge. That judge alone 

has access to the Higher Juridical Council, the body that governs judges in Iraq. Iraqi judges adhere to this 

chain of command. Not following it is a sign not just of ignorance but of disrespect. At the division level, 

the focus of engagement will frequently be on chief provincial and chief appellate court judges. 

Local judges cannot make important administrative or logistical decisions without the concurrence of their 

superior judges, regardless of their own seeming agreement or enthusiasm, and so it is necessary to gain the 

concurrence of that superior for most projects. This dynamic also matters at the brigade level. BCT ROL 

personnel can be included in engagements with the chief appellate and chief provincial judges involving their 

local courts, enhancing the credibility of the BCT personnel with their respective local court judges. 

With status-conscious Iraqis, the more senior the engager, the better the results will be. In general, the 

servicing Provincial Reconstruction Team DOJ Resident Legal Adviser (RLA) or, in those areas without an 

RLA, the Rule of Law Advisor will take the lead. As of 2010, almost all PRTs had a Resident Legal Advisor 

(AUSA) or Rule of Law Advisor assigned. Generally, this senior civilian legal presence serves as the lead 

engager to the Judiciary for the USG, accompanied primarily by the BCT JA counterpart. On other 

occasions, BCT commanders and other U.S. Forces leadership will engage with the Judiciary in conjunction 

with the PRT RLA. Lower court judges are required to report to their superiors about administrative matters 

affecting the operation of their courts. 

Iraqi judges are proud of their legal heritage and will routinely have prints or tapestries of Hammurabi on 

their walls.139 They may also have a framed Qur’anic verse relating to a judge’s duty to be fair and 

impartial. Respectfully acknowledging the same is a small but important aspect of initial engagement. The 

Qur’an is typically on the judge’s desk and covered to keep it dust-free. Do not ask to peruse it; the request 

would probably be granted out of politeness, but it would likely be seen as inappropriate. 

Judges in Iraq have not historically had significant relationships with the military (Iraqi Army and National 

Police). The need for security in postwar Iraq has required judges to form new relationships with the army 

and police. Both entities have varying levels of trust of the judiciary and vice versa.140 U.S. forces need to 

be sensitive to this dynamic and realize that army and police issues will typically require more finesse. Do 

not expect rapid trust from a judge. 

Agree to meet judges at their courts. It supports the perception of security. One of the recurring problems 

for judges is lack of adequate personal security. U.S. presence at the courthouse helps demonstrate that the 

courthouse environment has an acceptable level of security. Finally, it is the best way to gauge the status of 

the court. 

139 Hammurabi was the sixth King of Babylon and is known for the set of laws called Hammurabi’s Code, one of the 

first written codes of law. 

140 The relationship between Iraqi security forces and the judiciary is critical for local security and the functioning of the 

prosecution of terror suspects. Attention and time by coalition forces is needed to nurture these relationships. Senior 

Iraqi army officers reported to the author that prior to the 2003 invasion and the subsequent disbanding of the Iraqi 

army, the army enjoyed a higher standing with the judiciary than the police. 

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Coordinating Local RoL Events with the Higher Judicial Council (HJC) through the 

ROLC and USF-I OSJA 

Lower court Iraqi judges fully brief to their superiors all contact with USG personnel. It is 

respectful and advisable for the U.S. engager to request permission of the chief appellate or 

chief provincial judge before setting an engagement with a lower court in the jurisdiction. 

This technique can be very helpful in showing judges that their system was understood and 

followed. Furthermore, lower court personnel will be much more amenable to developing 

positive relationships with collation forces with the permission, or at the direction, of their 

chief judge. If this courtesy is ignored, the chief judge will eventually still find out about the 

engagement, and it may cause unneeded pressure on the lower court judges and ultimately 

strain or irreparably harm your relationship. 

Iraqi judges are smart and educated. Many speak formal Arabic in addition to their Iraqi 

dialect. They know their law, which has changed little substantively since 2003. Even if 

there is some indication that local judges are not similarly competent, the wise ROL 

practitioner should not suggest anything except respect for the tradition and competence of 

the judiciary. Shame and honor can easily converge when working on issues requiring the 

cooperation of the judiciary. One should avoid statements that may be construed as 

accusations of error, lack of diligence, or incompetence. The judge will typically protect and 

defend his and the court’s honor at all costs. Criticisms are taken very seriously and can 

cause unintended consequences. 

While U.S. forces have become a normal fixture in Iraq, courts may still be uncomfortable with the presence 

of servicemembers and weapons. If the security situation is permissive, remove all protective gear as soon as 

practicable and conduct the engagement without holding weapons. Keep personal security details out of the 

meeting room, if possible. Civilians engaging with judges should wear appropriate attire. Ties and sport 

coats suggest respect to the judge. Women should always dress professionally and conservatively. Remove 

headgear, sunglasses, and gloves as soon as possible and before shaking hands. Be sensitive to the fact that 

you are in a court. 

Spend plenty of time greeting. Always greet the senior person first. Work your way around and shake 

hands141 with each person as practicable. Putting one’s hand over the heart connotes respect and sincerity. 

After taking one’s place, be prepared to spend plenty of time on extended greetings and initial discussion. 

Do not go right into business as it is contrary to the Iraqi way. Spend time asking the judge about current 

events but don’t expect to engage on such issues until your relationship is well-developed. Similarly, expect 

the first meetings to be more cordial than substantive. As the relationship develops, judges will gradually 

engage on more substantive issues and work towards resolving coalition issues of interest. 

Do not ask questions about a judge’s female family members including his spouse. Openness and 

friendliness, while sincere, may offend. Sensitivity to this Islamic tradition shows respect. Iraqis do, 

however, greatly appreciate your interest in their culture, language, and history and welcome appropriate 

questions. Expressed interest in Iraqi history can demonstrate respect for both the judiciary and legal system. 

When engaging Iraqi officials both male and female, remember to maintain eye contact; not looking at 

someone suggests they are unimportant. 

Engage in friendly discussion and do it leisurely. Engagements with judges should typically last one to three 

hours. “Drive-bys” should be avoided and suggest lack of respect. Judges will not rush and will make a 

great effort to be hospitable, attempting to show respect. An Arabic word, “karamah,” partially captures the 

approach: it suggests granting others respect, honor and dignity, and treating others with generosity. Doing 

141 However, in Iraqi culture a male should never shake hands with a female. 

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so is part of the “righteous path” and consistent with the Qur’an’s teachings.142 Judges may take phone calls 

during the engagement. This is not a sign of disrespect. Also, interruptions by other court personnel may 

occur, very often this will be to offer tea and other assorted desserts. When offered such items of hospitality, 

you should graciously accept the first round. 

Use the same coalition interpreter or advisor whenever possible. The judge will form a concurrent 

relationship with this person. A savvy and motivated advisor can make a tremendous difference in the 

growth of the relationship with the judge. Uneducated or otherwise unsophisticated interpreters hamper 

engagements. As relationships mature, the level of privacy and trust accorded to the ROL practitioner will 

increase. Having the same Arabic speaker at each engagement will hasten this process. Furthermore, much 

of the contact with the judge will occur over the phone. If the judge trusts and likes the interpreter, he will be 

more willing to engage remotely. Be cognizant of ethnic and tribal affiliations.143 Work in advance with 

your interpreters to prepare them for engagements. The judges will be able to quickly discern if the 

interpreters are aware of the agenda. It indicates respect that preparation occurred. 

Strive to avoid uncertainty. The strict rules and laws in Iraqi culture reduce the tolerance for ambiguity.144 

Judges will seek to avoid risk and the chance of the unexpected occurring. They will invariably become 

uncomfortable and resistant if coalition personnel advocate situations with uncertain outcomes. In general, 

they will not accept risk. Decisions are typically made gradually. The dynamic changes that occur with 

shifting coalition personnel and issues, battlespace boundaries, and Iraqi government development are all 

contrary to traditional Iraqi thought. With judges, be sensitive to questions that may force an “I don’t know” 

response, as this is distasteful for Arabs. 

Build your relationship by following through on “promises.” Be careful what you agree to do. If you agree 

or promise to do something and fail to follow through, you risk reinforcing the common Arab perception that 

“America never keeps its promises.” Iraqi judges are very conscious of USF-I efforts, whether they are 

sustained engagement efforts or tangible ROL initiatives. Do not risk a loss of credibility early on by 

promising the unobtainable. Rather, indicate that you will “look into it.” 

Engaging key judges can be the most significant of any ROL initiatives. The dividends from consistent 

judicial engagement can range from security solidification, increased judicial capacity, and the growing 

confidence of court personnel and host nation citizens. Investing time and effort in judicial relationships is 

likely to remain one of the most critical parts of reinforcing the ROL. 

H. References and Further Reading 

•	 Law Library of Congress – Iraq - www.loc.gov/law/help/guide/nations/iraq.html 

•	 World Legal Information Institute Country Studies Iraq - www.worldlii.org/iq/ 

•	 Iraqi Corporate Law – www.gulf-law.com/iraq_law.html 

•	 CHIBLI MALLAT, INTRODUCTION TO MIDDLE EASTERN LAW (2007). 

•	 Zuhair E. Jwaideh, The New Civil Code of Iraq, 22 GEO. WASH. L. REV. 176 (1953). 

•	 Dan E. Stigall, Iraqi Civil Law: Its Sources, Substance, and Sundering, 16 J. TRANSNAT'L L. & POL’Y 1 

(2006). 

•	 Haider Ala Hamoudi, Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and Man: 

Legal Pluralism and the Contemporary Muslim Experience, 1 BERK. J. MIDDLE EASTERN AND ISLAMIC 

L. (2008). 

•	 Dan E. Stigall, A Closer Look at Iraqi Property and Tort Law, 68 LA. L. REV. 765 (2008). 

142 See “Understanding Islam” at www.understanding-islam.com (last visited August 19, 2011). 143 Some USF personnel believe that non-Iraqi Arabs (e.g., Egyptian, Moroccan) are more effective with Iraqi judges 

due to continued issues of sectarian mistrust. 

144 JODIE R. GORRILL, DOING BUSINESS IN IRAQ: IRAQI SOCIAL AND BUSINESS CULTURE (2007). 

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•	 Global Justice Project: Iraq (English translations of some Iraqi legislation) -

http://www.gjpi.org/library/primary/iraqi-legislation/ 

•	 Global Justice Project: Iraq (criminal law and procedure resources) - http://www.gjpi.org/centralactivities/criminal-law/ 

•	 United Nations Development Programme Iraqi Legal Database (in Arabic) - http://www.iraqild.org/AboutEn.htm 

•	 US Department of State, 2010 Human Rights Report: Iraq -

http://www.state.gov/g/drl/rls/hrrpt/2010/nea/154462.htm 

•	 Human Rights Watch, “The Quality of Justice, Failings of Iraq’s Central Criminal Court” - 

http://www.hrw.org/sites/default/files/reports/iraq1208webwcover.pdf 

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CHAPTER 8 

HUMAN TERRAIN TEAMS: AN ENABLER FOR RULE OF LAW 

JUDGE ADVOCATES AND PARALEGALS1 

There can be no government without an army, no army without money, no money without prosperity, and 

no prosperity without justice and good administration. 

Abu Muhammad Abdullaah Ibn Qutaybah Ad-Dinawaree2 

I. Introduction 

The Human Terrain System (HTS) Project is an initiative to provide socio-cultural teams to commanders and 

staffs to improve the understanding of the local population. Its mission is to “[r]ecruit, train, deploy, and 

support an embedded, operationally focused socio-cultural capability; conduct operationally relevant, sociocultural research and analysis; develop and maintain a socio-cultural knowledge base.”3 

Human Terrain Teams (HTTs) are typically composed of “one team leader, one-two social scientists, one 

research manager, and one-two human terrain analysts with specific local knowledge.”4

 The members of a 

HTT are recruited and trained as a team for a specific region, then embedded with their supported unit, which 

normally is a brigade combat team (BCT).5 

The team leader could be an active or reserve component officer, possibly even a retired military officer with 

a primary duty of ensuring the integration of human terrain analysis with the Military Decision Making 

Process.6

 The team will probably have at least two social scientists, one with an emphasis on 

ethnographic/social science research and analysis and the other with a fluency in the indigenous language to 

facilitate focus groups with the local population.7

 Other team members will be military human terrain 

analysts trained in debriefings and data research and military terrain researchers that integrate the human 

terrain research plan with the intelligence collection plan.8 

1 Editorial Note: CLAMO After Action Reports (AAR) for the 09/10 year recorded only one HTT related comment, 

regarding concerns of criminal jurisdiction with the recent implementation of The Security Agreement between the U.S. 

and Iraq. Inferring that the silence concerning HTTs in so many AARs reflected a knowledge gap between HHTs and 

BCT judge advocates and paralegals, this Chapter was included in the 2009 Handbook to encourage JAs and 

paralegals to “think outside of the box” and employ their adaptive thinking skill-set to take advantage of the HTT 

enabler. The number of HTT capability AAR references has increased significantly since the original chapter was 

published. The original text for this chapter was written by LTC Dan Tanabe, former Deputy Director, Future 

Concepts Directorate, TJAGLCS,, Charlottesville, Virginia. It has been modified and updated for the 2011 edition of 

the Handbook. 

2

 This quotation is historically attributed to this Ninth century Islamic scholar. See, e.g. Malik Qasim Mustafa, “The 

Responsibility to Protect a Fragile State: A Case Study of Post-Intervention Afghanistan,” 

http://catalogo.casd.difesa.it/GEIDEFile/THE_RESPONSIBILITY_TO_PROTECT_A_FRAGILE_STATE%C3%8A_ 

A_CASE_STUDY_OF_POST-INTERVENTION_AFGHANISTAN.HTM?Archive=191548091972& 

File=THE+RESPONSIBILITY+TO+PROTECT+A+FRAGILE+STATE%A0+A+C (last visited June 14, 2011). 3

 U.S. Army, Welcome to the HTS Home Page, http://humanterrainsystem.army.mil (last visited Aug. 22, 2011). 4

 U.S. Army, HTS Components, http://humanterrainsystem.army.mil/htsComponentsDeployed.aspx (last visited August 

22, 2011).

5 Id. 

6

 Human Terrain System Information Briefing presented to the Brigade Judge Advocate Mission Primer, Rosslyn, 

Virginia, December 16, 2009. 

7 Id. 8 Id. 

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Once embedded, “HTTs conduct field research among the local population and represent the ‘human terrain’ 

in planning, preparation, execution, and assessment of operations.”9 The HTT can be sub task organized into 

smaller teams to support subordinate units based on mission requirements.10 Human Terrain Teams are 

formed and deployed only as needed and are not a permanent structure.11 

II. Background 

The collective experiences of recent special operations forces deployments to Iraq tasked to conduct foreign 

internal defense (FID) shows that navigating the socio-cultural landmines between the Iraqi security force 

apparatus and the Iraqi judiciary is time and resource intensive. Successfully discerning the finer aspects of 

social science armed only with a law degree was probably more a function of luck than of deliberate 

planning. As noted elsewhere, but for the comparable HTT-like capabilities of the Operational Detachment 

Alphas (ODA), the odds of success of many initiatives would have been very low.12 

This practice note is neither doctrine nor “rocket science” but rather evolved from an attendance at an 

interdisciplinary conference where an anthropologist presented a narrative entitled “Judicial Practices and 

Rhetoric of Memory in Gaza Strip.”13 This narrative provided an in-depth comparative analysis between the 

formal judicial system of the Palestinian Authority, and informal tribal judicial systems in Gaza. The final 

determination was that the informal judicial system was actually undermining the formal judicial system 

rather than complementing it.14 While the means by which this determination was reached are beyond the 

scope of this note and most JAs’ expertise, for purposes of context this practice note will try to describe the 

methodology used. 

The anthropological approach initially established a context through a historical analysis of social/political 

disruptions as well as physical/geographical migration and relocation. Data was then collected across 

generational lines on specific topics concerning individual values and national identity, as well as data 

concerning case adjudications for similar type cases in both the formal and informal judicial systems. The 

analysis of this data within this historical context demonstrated that the tribal values associated with the 

informal judicial system, which presumably complemented the formal judicial system, had been significantly 

altered and politicized. In effect, the informal judicial system had become a subterfuge to circumvent the 

formal judicial system. Specifically, the pre-1948 generation’s norms and values associated with tribal social 

construct were strikingly different from those of the younger generation of post-1948 Gaza. Further, the pre1948 norms and values that were assumed to exist in the informal judicial system had since been replaced by 

the politicized post-1948 norms and values as reflected in the polling comparisons and backstopped by the 

case adjudication analysis. The faulty assumption regarding the tribal informal judicial system allowed the 

legitimization of a means to circumvent the formal judicial system and undermine public trust in the formal 

judicial system and, ultimately, the Palestinian Authority.15 This interesting narrative leads one to think that 

9 Id. 

10 Afghan Commander AAR Book, Currahee Edition at 30 (electronic version available at http://cc.army.mil) (last 

visited June 14, 2011). 

11 U.S. Army, HTS Components (Aug. 22, 2011), http://humanterrainsystem.army.mil/htsComponentsDeployed.aspx 

(last visited Aug. 22, 2011). 

12 See LTC Dan Tanabe & MAJ Joe Orenstein, Integrating The Rule of Law with FID in Iraq, Special Warfare 

Magazine, Nov.- Dec. 2009, at 7-11. Since 2003, ODAs have deployed more frequently on shorter deployments than 

conventional units, but usually returned to the same deployed location with the same enduring partnered FID force 

creating a practical equivalent for that specific location to the academic expertise of a social scientist. 

13 Christine Pirinoli, Universite de Lausanne – Institute d’Anthropologie et Sociologie, Narrative at the Franklin College 

Intersections of Law and Culture Conference (October 4, 2009), this is part of a larger book entitled, Jeux et enjeux de 

memoire a Gaza [Collective Memory and National Identity: Gaza] (May 2009), see 

http://www.lcdpu.fr/livre/?GCOI=27000100250790 (last visited Aug. 22, 2011). 14 Id. 15 Id. 

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an anthropological approach could be useful in many of our legal support mission-sets, since in many 

instances we are attempting to work “by, with, and through” a partnered force through their system. 

III. Why Use a Human Terrain Team? 

Training and Doctrine Command (TRADOC) recently published the Operational Environment (OE) 2009­

2025.16 This publication identifies trends to help describe the current and foreseeable OE in which the Army 

will conduct missions. While some identified trends may be new, they are largely restatements of a reality 

with which JAs and paralegals are all too familiar. However, they do build the context that can illustrate the 

enabling capability of an HTT. 

One trend identified in the OE is a notion of “cultural standoff” whereby an adversary will employ 

asymmetric tactics that seek to alienate the local population from U.S. forces through perceptions that U.S. 

forces are violating cultural norms.17 Likewise, the OE identifies a competition of “cultures, civilizations, 

and associated ideologies” that raises the concept of “human terrain” on a level equal to, if not higher in 

importance to, mission accomplishment than physical terrain, for “[c]ulture and ideology may be the center 

of gravity in future conflict.”18 

The Australian Army has identified similar trends in their Army’s Future Land Operating Concept.19 In the 

chapter that discusses “Indigenous Capacity Building,” the Australians note the significance of cultural 

sensitivities and how this knowledge could help identify and empower those indigenous leaders and 

traditional structures that will deliver effective outcomes for the local population.20 On the other end of the 

spectrum, moving towards lethal effects, the Australians identify a concept of “Discrimination Threshold.”21 

This concept relies heavily on human terrain to define culturally where the boundary is between acceptable 

and undesirable outcomes when prosecuting targets.22 

The Army Capstone Concept23 (ACC) broadly describes the capabilities the Army will require to meet the 

threats and adversaries envisioned in the OE. The ACC prioritizes “operational adaptability,” requiring 

flexible leaders “who are comfortable with collaborative planning and decentralized execution, have a 

tolerance for ambiguity, and possess the ability and willingness to make rapid adjustments according to the 

situation” while “[developing] the situation through action.”24 This methodology’s implied task is to 

understand the particular OE to a degree of familiarity that will allow operators to set conditions, if necessary 

shape, then assess for further adaptation. If, while you are attempting to accomplish this implied task, the 

adversary is employing the previously mentioned asymmetric tactic of “cultural standoff” then it is critical to 

gather as many available tools for your Operational Law kit bag in order to assist your commander in 

disrupting your adversary’s decision making cycle and overwhelm his operational tempo. 

One such available tool is the HTT. What better tool to employ and leverage social and anthropological 

understandings of your particular OE, especially if the local population is the center of gravity? Just as 

commanders and other members of the battlestaff will generally defer legal issues to their JAs as the legal 

subject matter expert (SME), cultural issues should also be deferred to the relevant SME. However, JAs 

need to bring the SMEs to the table and one cannot do this if one does not know who they are or where to 

16 TRADOC, Operational Environment 2009-2025(v6). 

17 Id. at 8. 18 Id. at 19. 

19 Director Future Land Warfare and Strategy – Australian Army Headquarters, Adaptive Campaigning 09 (Sep. 2009). 20 Id. at 54. 21 Id. at 8. 22 Id. at 19-20. 23 TRADOC Pamphlet 525-3-0, The Army Capstone Concept (21 December 2009) [hereinafter Army Capstone 

Concept]. 

24 Id. at i.
 

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find them. Once found, effective employment of an HTT could enable the unit to defend against and even 

counter the “cultural standoff” tactic, isolating the enemy from the population. This capability would allow 

the unit’s targeting methodology to remain below the “Discrimination Threshold” as it applies lethal and 

non-lethal means and effects in prosecuting targets and accomplishing the mission. 

As one “peels back the onion” with an HTT enabler, like the Palestinian judicial system study mentioned 

earlier, current reporting from Afghanistan also shows some possible false assumptions. In particular, the 

emerging orientation towards tribal engagement is drawing warnings from the HTS. Social scientists 

familiar with Afghanistan are presenting data that aligning a new strategy along tribal affiliations “is 

deceptive” for “[m]aybe those groups were once tightly-knit. But decades of war with the Soviets and with 

the Taliban has changed all that.”25 

Recently, an HTT was able to provide a company commander tribal mapping and market flow for the 

specific area of operation which allowed the company commander to understand how the different tribes 

were interrelated.26 HTTs as part of the HTS also have direct links to the Department of State (DOS) via the 

HTT liaison officer embedded in the DOS Humanitarian Information Unit.27 As pointed out recently by the 

British Military, “[a] little knowledge can be dangerous, masking important nuances and 

subtleties...[f]requent reference to subject matter experts may be necessary.”28 

IV. How a Human Terrain Team Might Be Employed 

After the evening commander’s update brief, the battle captain hands you a daily FRAGO that tasks your 

BCT to develop a plan to integrate the informal tribal court system in your province with the formal court 

system. The battle captain is giving you a heads up since he is pretty sure the S3 is going to “pin the rose on 

you” to brief the BCT commander on how the BCT plans to accomplish this specified task. 

As you begin to think about all the possible implied tasks, you recall the numerous reports that identified the 

lack of communication between the informal court leaders and the formal court judges, similar to the 

communication problems between the police and the investigative judges on your last deployment. 

Your figurative light bulb flickers towards illumination and a viable solution, as your thoughts focus on how 

to get these two groups to communicate with one another. Immediately you begin to write yourself notes on 

coordinating a time and place, coordinating security for the meeting, coordinating the logistics for the 

meeting, etc...and so goes your initial plan towards holding this “grand meeting of the minds” between the 

informal tribal court leaders and the formal court judges. As you begin to conceptualize how to set the 

conditions for success or to avoid disaster, the data you pull from your predecessor’s legal database begins to 

show a troubling picture. You realize that neither group, the tribal judges or the formal judges, have ever 

been extensively targeted by the insurgents—so fear is not a factor, and even more troubling, all sets of 

individuals appear to reside in close proximity of each other—so logistics is not a factor. You begin to 

wonder if there is something else that is preventing these sets of individuals from communicating with each 

other. 

As you dwell on this thought, you walk into Ms. Preston, one of the anthropologists on the BCT HTT, while 

exiting your office. As a matter of courtesy, you ask Ms. Preston how her trip went today, knowing that she 

was apprehensive of doing focused polling since the recent death of a fellow HTT member from an IED 

attack last month. Ms. Preston tells you that the focused polling went well and that they were able to 

25 Noah Shachtman, Army Researchers Warn Against Tribal War in Afghanistan, Danger Room, November 30, 2009, 

available at http://www.wired.com/dangerroom/2009/11/army-researchers-warn-against-tribal-war-inafghanistan/#more-19988 (last visited Aug. 21, 2011). 26 Afghan Commander AAR Book, Currahee Edition at 30 (electronic version available at http://cc.army.mil) (last 

visited June 14, 2011). 

27 Humanitarian Information Unit, Welcome to HIU, http://hiu.state.gov (last visited July 12, 2011). 28 Ministry of Defense Joint Doctrine Note 1-09, The Significance of Culture to The Military, at I-7 (Jan. 2009). 

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determine that future CERP projects given in “the name of the mosque” would be acceptable to the tribal 

elders since such “gifts” are considered “gifts to god” and would not put the villagers at risk from the 

insurgents. Her response triggers a synaptic event and you quickly relay to her your current thoughts on your 

recent tasking. After a few seconds, Ms. Preston tells you that there might be something else, along tribal 

lines, that is preventing these two groups from talking with one another. 

Immediately after exchanging best regards, you walk to the BCT commander and explain to him that in order 

for you to accomplish this tasking, you will need assistance from the HTT. After the “old man” blesses off 

on your request, you set the wheels in motion. 

As you reach out to the HTT to sit down and explain the tasking and desired endstate, you also work with 

your S2 to see if the operational management team that runs the BCT’s human intelligence teams has any 

background information on the potential host nation participants. Taking the unclassified information 

provided to you by your S2 and giving it to the HTT, the HTT begins to analyze this information along with 

the tribal mapping. Based on this initial analysis, the HTT establishes focus areas for near-future local 

population polling to assess and backstop their initial thesis. 

Over the next week, the HTT travels to the towns in which the tribal judges and formal judges either reside 

or operate and conducts the focused polling. After the analysis of the local population polling, the HTT 

advises that key members of the informal and formal court systems are of tribes that are currently undergoing 

a tribal mediation over a very lucrative patch of land that is being used to canalize water to multiple towns. 

Armed with this information, you begin to conceptualize how you might leverage it to set the conditions for 

mission accomplishment. Maybe you can meet separately with each group first and offer to them the BCT’s 

assistance towards a solution on the land/water dispute in exchange for worthwhile discussions between the 

two groups? Maybe you can bring the two groups together along with the tribal mediators and in the 

presence of all the stakeholders offer them the BCT’s assistance on the land/water issue if they can agree to 

earnestly discuss the informal/formal court issues? Then it dawns on you that one course of action may be 

more culturally acceptable than the other, so you depart your office to find Ms. Preston for more HTT 

expertise. 

This hypothetical illustrates how an HTT could facilitate the accomplishment of an operational law mission. 

This possibility takes on a significance when faced with the realization that our “egocentric thinking—our 

unrealistic sense that we have fundamentally figured out the way things actually are” can be our biggest 

hindrance.29 

Editor’s Note: Since this FCD thought piece was written, it is still not clear that we have, “fundamentally 

figured out” HTTs. As the Nov 2010 Congressionally directed assessment of the US Army’s Human Terrain 

System indicates, while the HTS concept is, generally, validated, its execution to date appears to have some 

significant flaws.30 Those flaws should not, in themselves, rule out the use of HTTs in ROL work. However, 

like any enablers, they should be used with a clear understanding of their potential limitations. 

29 Foreign Internal Defense Joint Integrating Concept (FIDJIC)(v9) at 29. FIDJIC recognizes that the ability to 

effectively expand the capabilities of FID, leaders will need to exercise the ability to “think critically” enabling them to 

momentarily step back and determine if the identified problem/challenge has been accurately or fully articulated within 

the specific operating environment. 

30 Clinton, McQuaid et al, Congressionally Directed Assessment of the Human Terrain System (CRM D0024031 

A1/Final), CAN, (Nov 2010) available at http://openanthropology.files.wordpress.com/2011/02/gettrdoc.pdf (last 

visited Aug 9, 2011). 

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CHAPTER 9 

RULE OF LAW NARRATIVES 

Editor’s Note: This Edition of the Handbook has a somewhat reduced narratives chapter than in previous 

years.1

 “Reduced”, that is, in terms of numbers, not quality. Further breaking with tradition, it also 

features two “think pieces” that are less the ground level, theatre specific, personal experiences of deployed 

personnel, and more a (hopefully) thought-provoking discussion about the conduct of ROL operations 

generally. None of the narratives in this chapter should be taken to necessarily represent any official 

position of the units, organizations, or countries the authors work for or are affiliated with. 

I. Justice – A Centre of Gravity Analysis2 

Editor’s Note: The following article suggests that it is time to take the insurgents’ ability to provide 

“justice”, albeit not necessarily of a form to our, or the local population’s liking, seriously. Although the 

justice situation in, for example, Lashkar Gah may have improved somewhat since this article was written, 

its underlying premise remains sound – the provision of justice, or the rule of law, is often an insurgent’s 

centre of gravity, and one that we ignore at our peril. In deference to the author’s (and the Editor’s) 

nationality, English spellings have been used throughout. 

Missing a trick – Justice and Insurgency3 

“And most difficult of all they came armed with laws and regulations which had not necessarily any 

relevance whatever to the standards by which a Pathan society lived.”4 

The Ken Loach film “The Wind that shakes the Barley” did not attract the approval of the establishment. It 

was a one-sided picture of the IRA campaign against the British between 1919 and 1921. That may well be 

so. It is also a picture of an insurgency from the insurgent’s perspective, a point of view all too often 

dismissed as “giving aid and comfort to the enemy.” One scene in the film presents a key element to 

insurgency that has been and remains almost ignored. In this scene, set in what appears to be a village hall or 

school, a court has been set up. Its function is not to decide the fate of traitors or collaborators, as insurgent 

courts are regularly thought to do. What is being decided is whether a particular debt should be paid. 

Putting aside the political aspect of this particular debt, (it is owed to a loan shark who bankrolls the local 

IRA unit that is are trying to ensure it is paid) this kind of case is the meat and bread of courts all over the 

world every day. The court portrayed is a Dail (pronounced “Daul”) Court, run by officials of Sinn Fein on 

legal principles adapted from the English system. By the end of the so-called Irish War of Independence 

there was a national network of working “parish courts” arbitrated by IRA members, parish clergy, 

republican lawyers, or Sinn Fein figures. Their decisions were enforced. And more than that, they were 

1 Editor’s Comment: Readers who feel short changed by the reduced number of theatre specific narratives in this 

edition of the Handbook, could do no better than refer to the seven, in depth, case specific studies articulated in 

CUSTOMARY JUSTICE AND THE RULE OF LAW IN WAR TORN SOCIETIES (Deborah Isser ed.) (U.S. Institute of Peace 

Press, 2011).

2

 Article by Frank Ledwidge, an English Barrister. He was the first Justice Advisor to the U.K. PRT in Helmand 

Province, Afghanistan. He has also served as a reservist military intelligence officer in the Balkan Wars and Iraq. He is 

the author of “Losing Small Wars” (Yale University Press 2011). 3

 Originally published in the British Army Review, Number 150, at 38 - 42 (2010/11) 4

 OLAF CAROE, THE PATHANS, at 347 (Oxford 1958) [hereinafter Pathans]. This is the “must read” on Pashtun history 

and culture. Caroe can be heard talking about his work at length at the UK’s Imperial War Museum tape number IWM 

4909/07. 

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respected. They succeeded in marginalizing the British state in the key area of justice and had in doing this 

entrenched their own shadow state’s legitimacy. 

“So what?” you might be thinking. What has this to do with the wars we are fighting today? It is the thesis 

of this article that justice, by which I mean the mechanism of dispute resolution, is central to the war in 

Afghanistan and indeed almost any counterinsurgency. The “so what?” here is that the Dail Courts, once 

established, provided a visible manifestation of the legitimacy of the IRA’s cause. They were not simply 

“terrorist courts” or another example of what we are pleased to call “the shadow state.” Whether consciously 

or not, Loach and his scriptwriters realised that once you have an accepted court system, with its hinterland 

of enforcement and popular acceptance, once you have a working system of justice set up, relying on a body 

of law and most importantly with the consent of its “customers,” you are a very great distance along the road 

to what the “US Army / Marine Corps Manual of Counterinsurgency” -hereafter FM 3-24 - calls 

“legitimacy.” Unfortunately neither FM 3-24 or the British Army’s own glossy Field Manual challenger 

“Countering Insurgency” see the centrality or implications of “justice” both in its abstract or its physical 

manifestations to success in a resistance war. 

To illustrate my point I will, for a moment, come home. There may be some readers who have at one time or 

another found themselves in a British Court. The fact of being in such a place has deep implications beyond 

the fate of one’s personal liberty or driving licence. For a start there is an implicit acceptance of the court’s 

authority. The presumption of legitimacy is so deep it is almost never articulated. One will sit in English 

courts for many years without hearing the phrase “I deny the right of this court to decide my case.” There 

may be those who find its rulings misconceived or plain wrong. Arguments are often made about 

jurisdiction but few outside the small “insurgent” community of this country deny the right of the court to 

make those rulings. Facing everyone in the UK courts except the judge or magistrate is a large Royal Crest, 

sitting above the judge’s seat. For those who care to consider it the implication is clear. Here resides 

authority based around common acceptance. There are no rivals to the courts here. Any proposed or indeed 

existing Sharia or Beth Din courts (largely dealing with family cases with the consent of the litigants) will 

derive their authority, and more importantly the enforceability of their decisions, from United Kingdom law. 

When something goes wrong, whether this is government misfeasance or private crime, we rely on courts to 

sort it out. 

For a system of “justice” is where the rubber of government meets the road of the people. The ability and 

acceptance of the right to adjudicate disputes is the ultimate expression of the right to rule – indeed of 

“legitimacy.” Once that sense is lost, as it was in early 1920s Ireland or indeed early 21st Century 

Afghanistan, it is a slogging uphill struggle to get it back. Complex insurgencies are powered by injustice, 

corruption, and a sense of illegitimacy. They are not generally, contrary to received governmental wisdom, 

driven by a desire to see free and fair elections. Most ordinary right-thinking people have the provenance of 

their government well down their list of priorities. What is important is knowing that if you have a dispute 

with your neighbour over land, or with an individual over whether he stole your television set, it will be 

resolved fairly. Your livelihood may depend on that. In the absence of provision of such a service, 

insurgents will happily and gratefully provide it themselves. 

Justice is a doubly dangerous weapon in the hands of an information-literate indigenous insurgent operation 

like the Taliban. “Sometimes the best weapons are those which do not shoot” as the U.S. Counterinsurgency 

Manual5

 puts it, not only does the insurgent’s ability to adjudicate disputes in an accepted and purportedly 

fair fashion reinforce his claims to legitimacy, it bleeds that legitimacy away from the government. As one 

commentator has put it, the setting up of separate courts is the ultimate “non serviam.”6 

5

 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY (15 Dec. 2006) [hereinafter FM 3-24], para. 1-197. 6

 Mary Kotonouris. Lecture on Dail Courts RTE 27th February 2009, Dublin, available at 

http://www.rte.ie/radio1/thomasdavis/1251899.html. 

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The Formal System in Afghanistan 

Even in relatively well-developed countries in the region such as (sic) Kyrgyzstan, Tajikistan, and 

Kazakhstan, all with the benefit of decades of Soviet influence, it will take decades to create a system that is 

not besmirched in what we would call, and in fact what Central Asians call, corruption, inefficiency, and 

incompetence. The point about Soviet influence is not meant to be facetious. The importance of Soviet 

control for those decades is threefold. First and most basically, there is a relatively sound and accepted legal 

basis upon which the justice system can operate. There are accepted laws. Second, there is physical 

infrastructure – courts, and so on. Finally and equally importantly, there is a well-trained and prepared 

professional base. In other words there are lawyers. None of these factors apply in Afghanistan. There is no 

agreed legal basis. There is of course the latest of six constitutions.7

 Even if the constitution were clear, few 

judges could read or interpret it. There remains a fundamental problem from the structural perspective. Each 

region operates on very different legal foundations. The questions remain: Does Islamic law apply? Is it the 

law applicable before 1979? Or is it customary law (about which more later)? 

Court buildings are a relatively simple problem to crack, although this itself has often proven difficult. 

Buildings can be built, prosecutors supplied with computers, and case-management systems installed. The 

final question, personnel, is a serious problem. There are very few trained lawyers outside Kabul. Anyone 

in any doubt as to the value of defence lawyers might be inclined to modify their views after a few hours in 

the prison in Lashkar Gah – the capital of a province without a single lawyer. Such legal expertise as there is 

in Helmand is confined to the prosecutor’s office where the Soviet trained Chief Prosecutor holds sway.8 

There is little reason to believe that the situation is substantially better in other Pashtun provinces of the 

South East. 

Nationally, the justice reform programme [in Afghanistan], set up by the “international community,” has 

totally failed. This is due to a complex series of factors ranging from a poor to non-existent appreciation of 

the culture and background against which the planned reform was to take place, to a lamentable lack of 

appreciation of this area as a priority. Great efforts were made to support an excessive focus on largely 

pointless, and often counterproductive, human rights measures which might begin to work in Ukraine or 

Albania but which were not appropriate for Afghanistan. The fact that the entire programme was placed 

largely in the hands of foreign “experts” who were neither equipped nor resourced for the task did not help. 

Here is not the place to go into detail about the shambolic state of legal and justice reform in Afghanistan as 

a whole. 

Even in more favourable environments the results of such efforts take many years, even decades to appear, if 

they appear at all. Kabul was not a favourable environment. The overriding consequence was that in much 

of the country a justice vacuum appeared alongside poor governance in other sectors. In the Pashtun lands 

this was compounded by the fraying of social and tribal structures which have been very damaging to 

traditional methods of dispute resolution – Afghan customary law. The Taliban were well-equipped to fill 

this space. 

Taliban Justice 

The central importance of justice continues, as we shall see, to evade the theorists and, to a lamentable 

degree, practitioners of “counterinsurgency.” Successful insurgents place it at or near the top of their 

objectives. All successful insurgents know the implications of providing fair fora for dispute resolution; not 

necessarily the same as courts. None know this better than the Islamic Emirate of Afghanistan – the Taliban. 

It is common knowledge that they were founded and grew on a manifesto, if one can call it that, of justice. 

In 1994, goes the legend – a legend that in its essence appears to be true – Kandahar was beset by gangs of 

7

 The latest Afghan Constitution was established in 2004. Previous versions were promulgated in 1923, 1964, 1976, 

1987, and 1990. 

8 Most NDS prosecutors are also Soviet trained. 

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mini warlords and thugs. The rape of two boys impelled Mullah Omar to action. Two of these criminals 

were hung from a tank, to the resounding approval of local folk. One senior Taliban official, a former antiSoviet Mujahedeen recalls “we would prosecute vice and promote virtue, and would stop those who were 

bleeding the land . . . we immediately began to implement Sharia in the surrounding area.”9 The group Omar 

led, supported of course by the Pakistani Inter-Services Intelligence, went on to take control of most of the 

country. What is less well known is that as a movement the Taliban are much older than that. They certainly 

existed in the Soviet period, “Many people talked about the Taliban, even then. They were respected by 

other mujahedeen. Some of them even consulted the Taliban Courts to settle their disputes or came to seek 

advice.”10 Whatever the history of the movement, its achievements, or lack of them in most respects, are 

well known. In only one area did it provide a service that had never been available from the state before and 

certainly is not available now. It provided a system of resolving disputes that was generally regarded as fair 

– if rather more robust than most human rights enthusiasts (I include myself in their number) would approve. 

Matters have not significantly changed. The “motorcycle courts” operating in Kandahar, Helmand and other 

provinces are testament to this. 

In an environment where 90% of the land is under insurgent control, like the old IRA in the West of Ireland, 

they have established a system of working courts as the only effective and above all trusted tribunals of 

justice.11 Above all although they are reputed to charge fees for their work, as indeed do English courts, their 

decisions are not dependent on the ability to pay bribes. When I was working in Helmand there was said to 

be a cadre of four Taliban judges “learned in the law” (Sharia in this instance) travelling the area dispensing 

justice in cases referred to them by elders or individuals. Three or four itinerant judges are reported to travel 

Maiwand District, not far from Gereshk. They are reported to “deal with a number of cases: land disputes, 

family disputes, loan disputes, robbery, killing, fighting . . . and the people are happy with them.”12 In 

Kandahar itself it is said to be well-known that there are at least two static established courts where cases can 

be heard and settled. They have established a reputation, allegedly fiercely guarded, for propriety and 

incorruptibility. These tribunals are sanctioned by a leadership keenly aware of the social and indeed 

political importance of being seen to excel in this area. They are said to have the power to issue what we 

would call witness summons and warrants for arrest.13 Such courts are common throughout the Pashtun 

South. They deal with all manner of cases, ranging from land disputes to what we call criminal cases. Over 

the last thirty years, land has passed through various hands, where people have been driven from their lands 

by foreign or indeed government action, replaced perhaps by those internally displaced who have taken on 

land as their own. This, as it would anywhere, has given rise to disputes that, if not resolved would certainly 

give rise to violence. The governmental system is far more part of this problem than the solution.14 I dealt 

with several cases in Helmand where government officials, and I am talking here of judges and prosecutors, 

used the power they had essentially to steal land. In one case in Gereshk, men were arrested and held for 

murders they almost certainly had not committed and sentenced to death. It was made very clear to me that 

once they had signed over a rather valuable parcel of land to a district Prosecutor - a man somewhat 

curiously described to me by a British officer as “well regarded and honest” - the sentence would be 

commuted and the men released. 

Whether this is true or not, and the evidence was overwhelming that this was indeed what had happened, this 

was in no way an isolated case. Not a single person of the dozens I met as Justice Advisor in Helmand 

would consider voluntarily handing a case to the state, formal courts for adjudication. The situation was so 

bad in 2007 that one female member of the Provincial council, someone who for very many reasons might be 

resumed to have no sympathy with Taliban aims or methods told me that there were times when she felt a 

9

 MULLAH ABDUL SALAM ZAEEF, MY LIFE WITH THE TALIBAN, 65 (Hurst) (2010). 10 Id, at 22. 11ANTONIO GIUSTOZZI, KORAN, KLASHNIKOV AND LAPTOP, at 111 (2007).
 12 Cited in http://www.understandingwar.org/files/QuettaShuraTaliban_1.pdf. 13 Id. 14 http://www.npr.org/templates/story/story.php?storyId=98261034. 

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certain nostalgia for Taliban times to the extent that in those days, if nothing else, you could be sure that 

criminals would be dealt with in a suitably condign fashion. 

One case I came across, illustrates the dilemma of Helmandis: 

In 2007, the District of Garmsir a man was killed over a land dispute. The killer was arrested, taken to court 

and given a short prison sentence of six months. There was a strong inference that his family had intervened 

with the judge to ensure a short sentence. This is highly likely to have happened. The victim’s family was 

not satisfied with the State’s response. They presented the case six months later, when the man had been 

released, to the Taliban in Garmsir. None of the four Taliban judges were in the district at that time, so the 

case was sent to Bahramshah, on the junction of the provincial border of Helmand and Pakistan. The Taliban 

judges of the relevant level were sitting there at that time. The case was heard, with the accused present. 

The judgment was that the victim’s brother should have the opportunity to kill the murderer. He did, and 

professed himself very satisfied with the outcome.15 

Undoubtedly such cases literally happen every day, and with every such decision the legitimacy of the 

insurgent courts is entrenched ever further and that of the government bled away. Clearly this is a highly 

dangerous blind-spot for the counterinsurgency effort. The opposition has identified a key centre of gravity 

of the state, attacked it and taken its ground. 

Customary Justice 

The sharia system of the Taliban itself has a rival. No one who has served or taken an interest in the Pashtun 

lands will be unfamiliar with the concept if not the practice of Pashtunwalli. Where, one might fairly ask, 

does that come in? The answer seems to be that over the last thirty years tribal systems have frayed so far 

that the social binding needed for the Pashtunwalli to function is seriously compromised. It is not however 

destroyed. Pastunwalli flourished in the so-called lawless areas of what is now Afghanistan and Pakistan for 

centuries. Historically this was, and to a great degree is, Yaghestan –variously translated as “land of the 

ungoverned/unruly” or more in accordance with Pashtun sensibility “land of the free.” The expression of 

that freedom, as distinct from lawlessness is the Pashtunwalli. It is the paradigm of law without a state. 

Codes such as the Pashtunwalli are to be found even today in the mountains of Albania, some remote parts of 

the Caucasus and the Sinai and Negev Deserts of Egypt and Israel. All of these tribal societies have “codes.” 

None of which rely in any way on the interference of the state. It is not a coincidence that all of them place 

the highest importance on notions of honour and what we call “revenge.” It is far more complex and rational 

than mere revenge. “The point to realise is this. Pathan custom requires the satisfaction of the aggrieved 

rather than the punishment of the aggressor.”16 None of this should be in any way confused with Islamic 

Law. The two are very different. 

In the absence of a state to impose “justice,” such complex and highly developed systems as the Pashtunwalli 

ensure that it is the duty of the individual to ensure that wrongs are righted. If necessary he can call upon the 

assistance of his tribe. There is no such thing as what we call crime. Crime is an offence against the state. 

“The Pathan in fact treats crime as a kind of tort”17 that is to say an essentially private matter between two 

individuals or tribal interests. The same is true of the other major surviving tribal legal systems. When one 

hears the old British Political Officers talk (unfortunately none are now alive and we must rely on recordings 

or their writings)18 one is struck by the stress they place on justice, echoing the importance all societies place 

on good and accepted dispute resolution. 

15 Frank Ledwidge, Justice in Helmand –The Challenge of Law Reform in a Society at War [hereinafter Justice in 

Helmand], Asian Affairs, 40: 1, 77 - 89 at 87 (2009).

16 Pathans, supra note 4, at 355.
 17 Id. at 357. 18 See OLAF CAROE, THE PATHANS, supra note 4. 

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“Abdul,” an employee of the PRT, found himself in a dispute with his mother in law who had formed the 

view that he had kidnapped his wife (her daughter) by virtue of having failed to pay the full bride price. She 

reported Abdul to the local police checkpoint. The checkpoint commander, Khan and several of his men 

apprehended Abdul and over several hours beat him, causing acute pain and some internal and external 

injury. He reported the matter to the police unit (part of the PRT). They considered that the matter would 

provide a good test case for a police complaints procedure they had instituted as part of their reform 

programme. 

Khan had requested the intervention of a group of elders from his own tribe and that of Abdul. The group, or 

“jirga,” met and discussed the case, suggesting that the police commander apologise. Abdul was told that the 

formal system he had been encouraged to consult was inappropriate. He was told that it had been agreed that 

he had to let the matter rest and withdrew his complaint. It was made very clear to him that if he elected to 

pursue this matter through formal channels his life would be threatened. In view of that, and not wishing to 

move to Pakistan as a refugee, Abdul did not proceed any further with his complaint. Abdul states that he 

would not have begun to consider reporting the matter to the police had he not been an employee of the PRT 

and supported by police mentors. 

As a postscript, the perpetrator of this beating, Khan, was killed along with two other policemen (he was the 

main target of the killing) three weeks later in a raid by Taliban. It is said that local people were supportive 

of this killing. The Taliban were seen as carrying out justice.19 

Counterinsurgency Response 

What then has been the response of COIN? As in any other area, it is important that any alternative to 

Taliban governance offers a better deal. In terms of health, road building, provision of water or electricity, 

security permitting, the government supported by ISAF and the international community will always be able 

to out-provide the Taliban. It may even, from time to time with well-selected and secured personnel, be able 

to provide some degree of governance allowing for communities to have some say in what happens in the 

area in which they live. It is however the ability to resolve disputes that essentially defines legitimacy. 

Unfortunately doctrine has yet to appreciate these realities. In setting out “legitimacy” as the underpinning 

of counterinsurgency, FM 3-24 is undoubtedly right. “An insurgency is an organised, protracted politicomilitary struggle designed to weaken the control and legitimacy of an established government.”20 The 

recently published British equivalent has a more questionable definition, reflective perhaps of the kinetic 

focus of UK forces (as distinct from traditional colonial civilian approach) – “an organised, violent 

subversion used to effect or prevent political control as a challenge to established authority.” The important 

element of any successful insurgency is of course the subversion rather than the supporting violence. The 

key point recognised implicitly in 3-24 is the struggle. Those “subversives” successful in today’s struggle 

will form tomorrow’s government. Success in the struggle is largely dependent on offering a better deal. 

With “legitimacy as the main objective”21 both doctrinal documents prescribe the usual nostrums for 

inculcating this elusive quality of legitimacy. FM 3-24 sets out six indicators of legitimacy including: the 

ability to provide security; selection of leaders in a just manner with public participation; acceptable rates of 

corruption and development; and a high level of regime acceptance. Nowhere amongst this list is the ability 

to solve disputes. All of those indicators are of little use if the host population turn to the insurgent to solve 

their problems. In addressing this difficulty, our counterinsurgency doctrine briefly adopts the solution of 

“building courts and training lawyers.”22 AFM 3-40 mandates military lawyers to undertake “rule of law 

19 See Justice in Helmand, supra note 15, at 86. 20 See FM3-24 supra note 5, ¶ 1-2, at 2.
 21 Id. para. 1-113, at 37.
 22 Id, para. 6, 101-106.
 

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activities.” These prescriptions are nothing more than afterthoughts representing the notion that justice is an 

easy fix. Doctrine has failed in this respect. 

Few have met a LEGAD who has the time for such matters on operations. In the short term, the formal 

courts installed as part of the “governments in a box” concept, may function if closely monitored. In normal 

circumstances, no Afghan would trust their land or freedom to the judges in what amount to Potempkin 

Courts. 

The importance of the “justice sector” is now beginning to dawn on counterinsurgents on the ground in 

Helmand and elsewhere. A more realistic approach is beginning to be taken with respect to the primacy in 

most Pashtun minds of customary justice. A series of shuras dealing with justice at provincial and district 

levels have been instituted in some districts of Helmand leading to a degree of improvement. The idea is that 

only what we would regard as very serious criminal cases are taken by formal courts. Even then, there have 

been reports of men accused of offences against ISAF forces being referred to local shuras for decision and 

disposal of their cases. Moves have been made to have decisions made in jirgas or shuras – the terms are 

interchangeable by the way – officially recognised. 

These are realistic solutions that the political officers of the North West Frontier of the Raj would have 

recognised and approved. They struggled for just under one hundred years with exactly the same problems. 

For them the administration of justice, in what was the longest insurgency fought by British Imperial Forces, 

was not peripheral. It was, if anything, the central problem. 

All of these questions are, or should be, of intimate concern to the military officer on the ground. Once 

ground is taken and held, a condition which may well be beginning to happen, the question as to how 

disputes are to be solved and who is to solve them becomes rather more immediate. The reality is that it will 

be some time before well-qualified and well-informed civilian justice advisors exist in sufficient numbers to 

advise competently on practical solutions. If the Afghan mission is realistically to continue for any length of 

time, consideration must be given to the selection and appointment of military justice officers. These 

officers and senior ranks could be briefed on policy and practice and ensure that when questions arise 

relating to dispute resolution they have the basic knowledge and appropriate and consistent policy guidance 

to provide answers, or have the contacts to reach back and find them. It may well be that this should, or 

could, be a role of the much-heralded “cultural officers”, whenever the relevant course and qualifications are 

nailed down. With justice and security having such vast importance, the area of provision of justice deserves 

dedicated military or civil/military personnel. 

Justice is vital if counterinsurgency is to be taken seriously. Whilst COIN treats this field as subsidiary, 

insurgents put it at, or near to, the top of their priorities. It is time for this to change. 

II. Finding Help in the Right Places for a Counterinsurgency Strategy23 

Editor’s Note: Although somewhat of an oxymoron, the author of this narrative (a USAID Country officer 

who conducted Rule of Law operations in Afghanistan while deployed there in his capacity as a National 

Guard officer) singlehandedly demonstrates the benefits that flow from and understanding of, and empathy 

for, interagency cooperation. On reading the narrative, one is struck by the importance the author placed on 

program sustainability and program design – two concepts that were, historically, more likely to be found in 

USAID development projects rather than military quick impact projects. Who would bet against a future 

edition of this Handbook, similarly, featuring the narrative of an active duty Judge Advocate, seconded to 

work for, say, the CRC or ICITAP? 

23 Article by CPT Adam Bushey, U.S. Army National Guard. He administered more than 20 USG governance 

programs totaling several million dollars. With a significant focus on anti-corruption measures, his team helped train 

and develop the justice sector skills of over 2,000 Afghan attorneys, judges, prosecutors, police, and local leaders during 

his 2010 tour. Based on evaluations, these events were both well designed and extremely well received. His full-time 

job is a Desk Officer for USAID. 

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Winning the hearts and minds is a challenging endeavor, particularly in a nation as impoverished as 

Afghanistan.24 In his 2009 Counterinsurgency (COIN) Guidance, General McChrystal stated that “we don’t 

have to be stupid or ineffective to fail – just misguided in our approach.” I believe the only way to 

effectively implement a COIN strategy is to employ and receive guidance from the best and brightest locals 

within the area in which we work. 

Local National Attorneys 

To assist and support our TF with the ROL and governance mission within our four-province AO, we hired 

ten Afghan attorneys and one afghan engineer, forming Teeme Mushawereen-e Hoqoqi (Legal Advisor 

Team), to interface with local government leaders.25 To be consistent with our Afghan-Lead-Afghan-Owned 

strategy, we emphasized capacity building of the legal advisor team by focusing on their training and largely 

entrusting our governance mission to them, while simultaneously decreasing brigade ROL mission travel.26 

The benefits of the decision to make Teeme Mushawereen-e Hoqoqi (TMH) the face of our governance 

mission were both vast and deep. These local experts had invaluable insight into the local area, people, and 

customs. They effectively represented the ROL Mission on our behalf, and as respected members of the 

community, they were able to contact almost any local leader at any time. Moreover, empowering local staff 

gave the mission credibility amongst the Afghan leaders, thereby strengthening our partnerships and 

improving implementation. 

Sustainability 

The success of our mission was sustainable on two fronts. First, our programs were properly tailored to their 

respective beneficiaries, thereby providing trainings and resources in critically needed areas. This is largely 

in part because as we created, contracted, implemented, monitored, and evaluated our more than 20 separate 

governance programs, the legal advisors regularly proposed programs or alterations to programs based on 

beneficiaries assessed needs, culture, and capabilities. For example, a vast majority of the programs outlined 

in our TF Governance Campaign Plan were designed strategically for our sub-national area by our legal 

advisor team.27 

Second, hiring local experts allows institutional knowledge to continue following the transfers of authority 

(TOA). Repetitive assessments are often performed by replacement brigades as detailed assessments die on 

an unknown share drive.28 Not only does this loss of knowledge slow down project implementation, but it 

appears suspicious and disorganized to our Afghan counterparts. Hiring Afghan attorneys remedies this 

negative cycle that inevitably occurs during TOAs. 

24 After ten years of U.S. presence in Afghanistan, the UNDP’s 2010 Human Development Report ranks Afghanistan as 

the 155 of 169 least-developed country in the world (it was second to last in 2009). Afghanistan has one of the lowest 

life expectancy and adult literacy rates, and it is in the top ten for women’s inequality in the world. Only 15% of the 

population has electricity.

25 I was often asked if I could trust our legal advisors. First, we made sure to hire the best and brightest. Second, we 

became a true team, interdependent on one another to succeed. We created a culture of hard work, honesty, and 

collaboration. The legal advisors cared deeply about the team and the mission. 

26 Coincidently, decreasing brigade travel provided us more time at HQ to formulate and shepherd programs through the 

chain of command approval process. 27 The TF Governance Campaign Plan focused on the Afghan justice sector holistically, including police, prosecutors, 

defense counsel, judges, law schools, the corrections system, civil society, and traditional and formal judicial 

mechanisms. It was written in strict adherence of: 1) USG strategy; 2) Afghan government priorities; 3) division 

guidance; and 4) the Commander’s priorities. 

28 A civil affairs officer in our operational environment was not permitted to participate in meetings by Afghan officials 

for this very reason. 

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The Proper Spotlight 

Every program was designed and evaluated based on how well the program increased the authority and 

capacity of the government in the eyes of the populace. As such, it was critical that local media and 

participant reports center on the Afghan government’s ability to govern and function, not on what the 

Americans provided. By having TMH monitor and evaluate our trainings, resource distributions, and other 

ROL programs, we effectively focused the attention of the program’s success on the Afghan government by 

keeping coalition participation absent and in the background.29 

Hiring Mechanism 

Local staff are hired through O&M, not CERP funding. The O&M hiring process is a simple six step 

process: 

•	 Step 1. Assemble a Joint Acquisition Review Board (JARB) packet, which typically requires a detailed 

Statement of Work (SOW), a Letter of Justification (LOJ), a Purchase Request & Commitment (PR&C) 

form, and a photocopy of your nomination letter and certificates designating you as a Contracting Officer 

Representative; 

•	 Step 2. Submit the packet to the S-8 (or whoever is collecting them at the Brigade level); 

•	 Step 3. S-8 sends it to the JARB for approval; 

•	 Step 4. The approved packet is forwarded to the financing office who certifies the funds and forwards 

the packet to the contracting office; 

•	 Step 5. The Contracting Officer publishes request for proposals/bids; 

•	 Step 6. You select the strongest bid. 

A JARB packet can be completed in about a day if you use an existing SOW as a model intended for hiring 

local nationals. 

One must pay careful attention to the cost section of the SOW. For example, fair payment for an Afghan 

attorney is approximately $2,000 USD/month.30 Fair pay is essential for a trustworthy team with high 

morale. Although a specific salary amount cannot be indicated in a SOW, you should explicitly state that the 

contractor must provide a sufficient salary, comparable to other organizations, to recruit and retain 

candidates with adequate experience. Attention to salary at the outset will decrease the likelihood of losing 

strong staff to higher paying jobs.31 

Reinventing the Wheel 

Given the turnover rate and distinct chains of command, there is an astounding amount of knowledge lost 

amongst ROL JAs. There were a dozen other JAs doing the same job in other parts of the country and some 

of us were creating and implementing similar projects from scratch every time. Do not let this happen; work 

with your higher command to get names of high-performing JAs so you can learn from their experiences and 

attain their project templates to use in your operational environment. 

29 However, coalition attendance at ribbon-cutting events (e.g. opening of a new courthouse or legal library) is both 

expected and encouraged. 

30 The bidding contractor will have to take his cut and pay his employment tax, so the contractor would need to receive 

more than $2,000 USD/month per attorney.

31 The decision on which contractor to hire should be based in part on the bidder’s cost estimates and not simply on who 

made the lowest bid. I found that contract bidders would low ball a bid proposal to win the contract, but then be unable 

to retain the most competent attorneys because the pay offered was not comparable to similar positions offered by the 

international community. 

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For example, I implemented a district leader training program with district-governors, other local officials, 

and a local Sharia science organization to train Mullahs, Maliks, and Shura leaders on: 1) the importance of 

registering Shura decisions with the formal government, 2) anti-corruption laws and how to report 

corruption; 3) the Afghan Constitution and its strong relationship to Islam; and 4) basic civil and human 

rights afforded by the law, including women's rights.32 I was then able to forward already approved project 

materials like the SOW, LOJ, and slide deck to other JAs. All they needed to do was work with their local 

officials, conform the documents to their particular AO, and the paperwork was already done. Similarly, I 

also shared the aforementioned documents needed for the JARB packet to hire local nationals; there was no 

need to reinvent the wheel. 

Conclusion 

My mission would not have been successful without the guidance I received from the top-performing JAs 

who came before me, and, more importantly the advice and counsel of Teeme Mushawereen-e Hoqoqi. By 

working with Afghan civic society organizations and Afghan government leadership, our legal advisors 

offered Afghans meaningful access to fair, efficient, and transparent justice based on the specific needs of 

our battle space through an Afghan-Led, Afghan-Owned COIN strategy. Only with the assistance of TMH 

were we able to increase the government’s legitimacy and public standing by promoting a culture that values 

governance. 

34 III. National Security Prosecutions in Afghanistan33 

Editor’s Note: The following narrative records the significant advances that can be made by engaging with, 

and learning from, host nation legal experts. Not so much a case of T.E Lawrence’s maxim about “Better 

[they] do it tolerably than that you do it perfectly,” but more a case of “they can probably do it better than 

us.” And in case we forget, footnote 47 reminds us that, by doing so, “they” put themselves as much at risk 

of violence as do coalition forces. 

Introduction 

In the spring of 2010 several Army Judge Advocates were deployed to Regional Command-East (RC-East) 

as dedicated Rule of Law Attorneys. As one of those attorneys I was embedded with Task Force Rakkasan 

(3BCT 101) whose area of operation was Khost, Paktya, and Paktika Provinces.35 I was very fortunate to 

have a readymade Rule of Law project just getting started when I arrived in April of 2010. The focus of this 

32 Additional governance projects completed by members of my team included: 1) providing resources (e.g. legal books, 

police investigative tool kits) and training to the police to improve their professionalism, understanding of the law, and 

ability to perform their duties; 2) collaboration with the Afghan government to build nine legal libraries to expand 

citizen knowledge of their rights; 3) the establishment of a partnership to create a legal defense clinic that protected the 

rights of prisoners; and 4) working with a local NGOs to train citizens on women's rights. 33 Article by MAJ Jeremy W. Steward, who was deployed to Khost, Afghanistan from April 2010 – April 2011 as a 

Rule of Attorney for TF Rakkasan, and later as the Team Chief, Team Khost – Rule of Law Field Force Afghanistan. 34 See MAJ Griffin P. Mealhow, Operation “Tombstone” and Summary of JAG Responsibilities in THE RULE OF 

LAW HANDBOOK: A PRACTITIONERS GUIDE 259-261 (Center for Law and Military Operations 2009 ed.) and 

MAJ Kiaesha N. Wright and CPT Stephen Patten, From The Battlefield To The Courtroom: “Prosecuting Insurgents In 

Afghanistan” in THE RULE OF LAW HANDBOOK: A PRACTITIONERS GUIDE 261-267 (Center for Law and 

Military Operations 2009 ed.). This narrative takes up at the point where operation “Tombstone” is up and running and 

provides the actual nuts and bolts of how cases are processed in Khost Province. 35 Very fortunate to have the leadership of Brigade Commander COL Viet Luong and Brigade Judge Advocate MAJ 

Anthony Adolph who had the patience to allow the embed program to work through its growing pains. 

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narrative will be on that project which was at the time termed the National Directorate of Security (NDS) 

Embed Pilot Program. 

NDS Embed Pilot Program 

A common problem that has plagued commanders in Afghanistan, and in particular those in RC-East, is the 

revolving door of insurgents from operational environment-detention-back to the operational environment. 

In an effort to slow down and close that door, an innovative program was proposed in Khost Province to 

embed an Afghan National Security Prosecutor on a FOB with Coalition Forces. The thinking was that if an 

Afghan prosecutor had the full security and support of coalition forces then he would be able to effectively 

perform his duties as a national security prosecutor and help slow, and eventually stop, the door from 

spinning. 

It was March 2010 when Colonel Fazel Habibi arrived on FOB Salerno as the assigned provincial level 

national security prosecutor for Khost Province. His positive impact was evident immediately.36 Colonel 

Habibi was able to investigate insurgent crimes in a manner that coalition forces simply could not. Within 

two months of his arrival COL Habibi had investigated nearly 30 cases and had obtained his first two 

convictions at the primary trial level.37 But this was simply the beginning of a program that would 

eventually spread throughout Afghanistan.38 

The Role of the Rule of Law Judge Advocate 

Perhaps one of the greatest aspects, but at the same time most frightening, of being the first dedicated rule of 

law attorney in a particular AO working on a project such as the NDS Embed Pilot Program was the freedom 

to create and mold a rule of law program from its inception. While the learning curve was steep, the 

knowledge of the inner workings of the Afghan Judicial System from COL Habibi and the brigade legal 

advisor were invaluable in being able to effectively help the Afghans bring to justice bad actors from the 

operational environment.39 

The one thing that all judge advocates should remember when working in the rule of law arena, particularly 

as in close quarters as our team with our embedded Afghan Attorneys, is that it is their system not ours. 

Many times avenues of thought on how to prosecute a particular case seemed very foreign to how I would 

approach a case as a trial counsel. In fact, in many ways I often felt as an apprentice to COL Habibi and our 

other Afghan attorneys and judicial officials as they tried to teach me how to best assist them. But one of the 

biggest lessons I learned was that the more effectively one is able to build the human relationship between 

his Afghan partners the more effective he will be in his rule of law endeavors. 

As a result, my role, and the role of my other coalition forces team members, of what became known as 

“Team Habibi,” was to help our Afghan partners effectively and legally prosecute bad actors from the 

36 Colonel Habibi has over 30 years experience in prosecuting national security crimes. 37 Joint cases of Ishaq and Noorudin who were convicted of transporting Ammonium Nitrate into Afghanistan from 

Pakistan and sentenced to three months in prison. Outraged by such a light sentence COL Habibi immediately called 

for a provincial level meeting with the governor and all Khost judicial officials to air his complaints with the judicial 

system. Interestingly enough, several months later in a meeting with a member of the Afghan Supreme Court an 

innovative solution was reached regarding light sentences at the primary trial court. Supreme Court justices were 

concerned for the safety of primary court trial judges who would impose severe punishments, as a result encouraged 

some primary court judges in volatile areas, such as Khost, to adjudge sentences only severe enough to ensure 

incarceration long enough for the accused to remain incarcerated through the appellate process. Then once at the 

Supreme Court, where the justice are in relative safety could the proper punishment be imposed. 38 In addition, Khost based judge advocates are working side by side with Afghan Prosecutors in Paktika and Khandahar 

Provinces as well as others. 

39 I cannot express my thanks enough to our Afghan Legal Advisor Mr. Ahmad. He was an incredibly gracious mentor 

and friend. 

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operational environment. That may seem very vague and broad, and that is because it is. My day to day 

duties could have included all of the following: intense legal discussions on proper case structure; arguments 

and charging decisions; drafting indictments and appellate documents; transporting evidence and detainees to 

Afghan pretrial confinement; and any number of miscellaneous tasks from office cleaning to B-Hut 

remodeling, to entertaining Afghan judicial officials. Essentially, anything that the team deemed would 

further our prosecution program was fair game as a daily tasking. 

Working as a Team – “Team Habibi” 

In a criminal law shop it takes many players to effectively ensure that justice is done through the courtsmartial process. The Afghan system is no different. There are different players with different roles. In order 

to effectively help COL Habibi and later our other Afghan Attorney Embeds perform their duties we had a 

dedicated team of coalition force players each with their own expertise in a particular area of case 

processing. I acted as the lead for legal issues, we had a CID insert as the lead on proper evidence collection 

and investigative techniques, a Law Enforcement Professional (LEP) who organized initial intake of 

detainees and evidence, a very experienced interpreter, but most importantly, an extremely gifted Afghan 

attorney legal advisor at the brigade level. Each team member had his own lane, and the process ran very 

smoothly once we were able to clear all the hurdles that the Afghan Justice System placed in our path on the 

way to successful prosecutions. 

Working Through a Case 

The Afghan judicial process is straightforward; the path to a successful conviction is not. Corruption, 

incompetence, laziness, and judicial officials fearing for their lives are outside factors that are present in 

most, if not all cases. What follows is a description of how cases are processed in Khost, the anatomy of a 

case file, and best practice tips learned from our Afghan partners. 

Arrest/Capture 

In most National Security Crimes cases there is little investigative work done before an individual is arrested 

or captured. This is especially true if the individual is caught in the act of a security crimes violation, such as 

on the operational environment or nearby when a roadside IED explodes. In most other cases, an individual 

is targeted as a known threat to national security, but the real investigation and exploitation of evidence does 

not begin until after the arrest of the individual. Because of this, national security crimes 

investigators/interrogators are forced to work at an accelerated pace to connect all the dots, exploit evidence, 

and conduct interviews with witnesses and the accused. 

Investigation – First 72 Hours 

The law in Afghanistan only provides investigators 72 hours from the time of capture/arrest to prepare a case 

file to present to the pursuing saranwal (prosecutor).40 With this compressed timeline it is imperative that 

the investigator gets the evidence and appropriate paperwork in line before presenting the case to the 

prosecutor for further action. In Khost, the practice is that if an individual is captured jointly by Afghan and 

Coalition Forces and brought to the Field Detention Site (FDS) on FOB Salerno the clock starts at time of 

capture, but is paused once Coalition Forces take control of the detainee to transport him to the FDS and 

remains paused until an Afghan Investigator/Prosecutor is afforded the opportunity to interview the detainee. 

Practically this will usually mean that the 72 hour clock is started for a very brief period perhaps for only an 

40 See Afghan Criminal Procedure Law, 1965, art. 29. “When the police finds lawful and well grounded evidence for 

the inculpation of the suspect, he shall propose the matter to the Saranwal within 72 hours.” 

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hour or so during the initial stages of the investigation at the point of capture and then immediately paused 

once CF have taken transport control. 

What if the Detainee is Brought to an FDS? 

If a detainee is captured and brought to the Salerno FDS the 72 hour clock is paused until an 

investigator/prosecutor is afforded the opportunity to interview the detainee. In these cases the investigators 

are under two timelines, their own under Afghan Law, and ISAF Detention Rules. The 

investigators/prosecutors who prepare cases on FOB Salerno are from the Attorney General’s Office. Since 

they are responsible for ultimately making the decision to prosecute, the investigators/prosecutors are 

afforded 15 days (with an option of an additional 15 days with judicial approval) to present a case to the 

court. 

First 15 Days and Court Authorized 15 Day Extension 

At the expiration of 72 hours, a case file must be turned over to the pursuing saranwal. At this point the 

saranwal has 15 days to prepare the case for court. Should the saranwal determine that he needs more time 

to properly develop a case for the court he may seek approval from the court for an additional 15 days to 

continue to work the case. This gives the prosecutor approximately one month to prepare a case and 

formally file the case with a claim paper/indictment with the court.41 

Primary Trial – 60 Days 

Once a saranwal has his case prepared he files it with the appropriate court, which, in the case of National 

Security Crimes, is the Public Security Division Primary Trial Court. The court has 60 days from the date of 

filing to hold the primary trial.42 During this time the court reviews the file, and in some cases may ask the 

saranwal to clarify certain points or provide additional evidence. It is not uncommon for the court in Khost 

to hold judicial meetings to discuss cases with the prosecutors and the evidence that is to be presented in 

court at trial. 

Provincial Appeal – 60 days 

Once the primary trial court has heard the case, it may reach the provincial appellate court. Only one of the 

two parties (either the saranwal or accused or both may appeal the case) has to appeal to the provincial 

appellate court in order to obligate the court to hear the appeal. The provincial appellate court has 60 days to 

hear the appeal. The case is reviewed de novo. Thus, an individual may be found guilty at an appeal if he 

was found not guilty at the primary trial. Further, the court may enhance or reduce punishment. As is the 

case at the primary court, the provincial appellate court in Khost will often hold judicial meetings with the 

pursuing saranwal to clarify certain points within the case file before formally hearing the appeal. 

41 See Afghan Interim Criminal Procedure Code for Courts, 2004 (hereinafter “ICPC”), art. 36, available at 

http://www.icrc.org/ihlnat.nsf/6fa4d35e5e3025394125673e00508143/2ee7715e48bfca37c1257114003633af/$FILE/Cri 

minal%20Procedure%20Code%20-%20Afghanistan%20-%20EN.pdf (last visited Aug 15, 2011) “When the arrest 

performed by the Judicial Police is sanctioned or when the arrest has been ordered by the Saranwal and it remains in 

force, the arrested person shall be released if the Saranwal has not presented the indictment to the court within 15 days 

from the moment of the arrest except when the court, at the timely request of the Saranwal, has authorized the extension 

of the term for not more than fifteen additional days.”

42 See ICPC, id., art. 6. “During the trial at the primary level, the Court can extend the detention for two additional 

months; during the trial at the appeal level the Court can extend the detention for another two months term; during the 

trial before the Supreme Court the detention can be further extended by the same Court for [an] additional five months.” 

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Supreme Court – 5 months 

If either or both the prosecutor or accused is still not satisfied with the result of the case after the provincial 

appellate court has ruled, an appeal may be made to the Afghan Supreme Court in Kabul. If a case is 

appealed to the Court it must take the case. The Afghan Constitution does not allow for the final publishing 

of a decision unless and until one of two events occurs; either both parties in the case are satisfied with the 

decision or the Supreme Court makes its ruling. In most instances the latter occurs. The Supreme Court has 

five months to hear a case and make its ruling from the time it receives the case from the provincial appellate 

court. Like the provincial appellate court the Supreme Court too may hear the case de novo; however, it may 

also limit its findings to errors of law.43 

Anatomy of a Case File 

While most National Security Crimes Cases Files that are created in Khost are handwritten by the 

investigators and prosecutors, and on their face appear rudimentary compared to what we might see in the 

United States; there is a very specific method that the Afghan investigators and prosecutors use when putting 

together a case file for presentation to the court. 

Arrest Form 

When an accused is arrested it is imperative that the proper Afghan Arrest Form is completed. In Khost 

Province COL Habibi created a standardized form based on forms he has used over his 30 plus year career. 

The form is straightforward and an English copy is available for joint CF and ANA missions. Some of the 

information included on the form is the “roster” of those who are conducting the arrest. The names and 

addresses of those being arrested, items seized, and most importantly the signature or thumbprint of the 

suspect being detained. This form is always the first page in a case file and builds the foundation for the 

case. Without proper documentation at the time of arrest an investigator, and later the prosecutors, will have 

a difficult time preparing the rest of the case. 

Search Report and List of Items from Search of Property and Person 

The next two pages of every case file are the Search Report and the List of Items from the Search of Property 

and Person. The information included on this form again is straightforward to include names of those 

conducting the search and names and addresses of persons and places searched. Additionally, witnesses to 

the search are listed and sign or thumbprint both documents as do those who conducted the search and the 

subject of the search. Accountability and transparency are the main reasons for this. A record must be kept 

as to who conducted the search and what items were seized from the person or his property so as to prevent 

corruption from seeping into the system. These two documents ensure that the intent of the Afghan 

Constitution is fulfilled when a search and subsequent seizure of personal property is conducted. 

Evidence From an Objective 

Without the above-mentioned foundational forms, a case may not make it off the ground. Likewise, without 

proper physical evidence a case will go nowhere fast. It is important that evidence is properly collected, 

preserved, and maintained during the course of the investigation, and properly presented to the prosecutors 

for inclusion in the indictment and claim papers. 

43 See ICPC, id., chs 9 and 10, discussing the Appellate Process. 

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Evidence Collection 

Just as important as properly completing the arrest and search report forms is the collection and recording of 

evidence found at an objective. The tactical site exploitation (TSE) of an operational environment or mission 

objective, is a vital part of case preparation. While an operational environment is not normally thought of as 

a crime scene, in relation to Afghan National Security Crimes, to the maximum extent possible, it should be 

treated as such. We have learned a great many lessons from our Afghan partners on how to properly collect 

evidence and record the scene. Chief among those lessons is the proper way to photograph evidence. COL 

Habibi instructed coalition force partners to take photographs of the evidence where it was found (from a 

distance to close-up), to include the suspect in pictures, but not to include coalition force personnel. Afghan 

National Army (ANA) and other Afghan National Security Force (ANSF) personnel were acceptable to 

include in photographs. It is worth noting that the “Money Shot”, where all the evidence is displayed and 

organized, will most likely not be used in court. When collecting evidence, especially from a complex 

qalat44 scene, ensure to properly identify what room the evidence came from, and keep the evidence from 

each room separated. Additionally, try to identify the individual who may be staying in the room, or most 

frequently uses the room. 

Evidence Brought to the FDS 

When a suspect is brought to the Salerno FDS all evidence collected at the scene of arrest is transported with 

him. While any weapons, explosive parts, etc. may not be brought into the FDS, a dedicated ROL Law 

Enforcement Professional (LEP) is present to take the evidence to the consolidated evidence room on FOB 

Salerno. It is during this time that for U.S. chain of custody requirements, and also for Afghan accountability, 

that the DA Form 4137 (chain of custody document) is properly completed and annotated with all the 

evidence associated with the detainee. A separate DA Form 4137 is completed by the FDS for all evidence 

that is on the person of the detainee at the time of presentation of the detainee to the FDS. It is important that 

both DA Form 4137s are included in the case file, and that when the detainee is transferred from the FDS to 

Afghan custody for prosecution that the Afghans sign the DA Form 4137 and take control of all physical 

evidence associated with the case. In many cases however, evidence is sent for exploitation to a laboratory. 

In those cases, perhaps only preliminary lab results are available for inclusion in the case file. In such cases, 

the prosecutor creates a memo for the file indicating this fact, and stating that as soon as the evidence is 

returned it will be placed with all the other physical evidence for that particular case. 

LEP Report/Photos/Detainee In-processing Packet 

The important coalition force documents that can help to build the foundation of a case are portions of LEP 

Reports, coalition-taken Photos, and the FDS Detainee In-processing Packet. After a detainee is brought to 

the FDS, the dedicated ROL LEP will create a case file on that detainee (or co-accused detainees). Included 

in that file is the “LEP Report” that provides the “who, what, where, why, and when” (5Ws) of the case. 

This information is a vital resource with which to gain an understanding of the case in order that our Afghan 

partners can be briefed effectively. Often, pictures are (and should always be taken at the scene of capture), 

part of a case. These become part of the file created by the ROL LEP, and provide a necessary visual 

background of a case. Additionally, laboratory reports and results will also be included in the case file 

created by the ROL LEP for presentation to Afghan Partners. The Detainee In-processing Packet, provided 

by the FDS, may include sworn statements from ANA, coalition forces, and others present at the scene of 

capture, and provides the first hand witness knowledge of a case that is essential for a prosecution. 

44 Qalat – Afghan for “home” or “house.” 

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CID Special Agent – Compiles Case Information for Presentation to Afghan Partners 

Once the ROL LEP has created a case file on the internal FOB Salerno NDS “Portal Page,” the ROL CID 

Special Agent (SA) prepares a briefing packet for the Afghan security crimes investigators/prosecutors.45 

This packet then becomes the basis for which the Afghan Partners formulate their case strategy to include, 

the formulation of interview questions. It is important that as much information as possible is presented at 

this time to ensure that a complete and accurate picture of the case is presented. In Khost great care is taken 

to make sure that new or conflicting information is not accidentally omitted from the case file, with the 

potential for it to create confusion further down the road on a case. Typically, the only new information that 

will become part of the case file will be lab results. Once he has been briefed by the ROL CID SA, the 

Afghan investigator/prosecutor begins his investigation. An interview time is set, and the Afghan timeline 

begins again once the interview commences. 

Afghan Investigator/Prosecutor Conducts an Interview 

Interviews are conducted on suspected national security crime violators by a proper Afghan authority, and 

can take place at any number of locations, to include special rooms in the Afghan detention facilities, 

investigative offices, or in the cases of detainees at FOB Salerno at the FDS. One important step Colonel 

Habibi has tried to take as the Chief and now Zone Chief for National Security Prosecutions in Khost, Paktya 

and Paktika is the use of standardized biographical background and interview forms. There are four forms 

that the investigator/prosecutors use during the course of an interview. All forms are signed or thumb printed 

by the accused. During the course of the interview, the first questions, aside from background information 

questions, are a series of “rights” statements and questions. The investigator, following ICPC Article 5, will 

ask about the health of the suspect, whether or not he would like an attorney, whether he would like to 

discuss the events, and whether he would like to write his own answers or would like the investigator to write 

and read the answers back to him.46 Depending on the type of case other forms may be used as well, but all 

cases will include the above-mentioned forms. 

Afghan Investigator/Prosecutor Makes a Prosecution Decision 

Once the interview is complete, a decision to prosecute or release the suspect is made. For cases originating 

on FOB Salerno the Afghan investigator/prosecutor consults with his ROL advisors to include a dedicated 

ROL JA to determine whether enough credible evidence exists to pursue a prosecution under the Law on 

Crimes Against Internal and External Security or the relevant Penal Code Articles. 

Release 

In some cases a decision is made to release the individual. This decision is usually reached for one of two 

reasons. First, there simply may not be enough evidence to prosecute the individual. Just like the U.S. 

system, hunches and innuendo do not count as evidence, and forcing “bad” cases through the system will 

only do more harm than good to the system. Second, during the course of the investigation it may become 

apparent that the suspect is not guilty. In both cases however, whatever file has been created on the suspect 

is kept for future reference, and the individual is released. When an individual is released he signs a form 

that states that he promises not to engage in activities against the government. This is important if, at some 

45 A web page was created specifically for the NDS Embed program to allow all “Team Habibi” members to view all 

case files and case documents at any time. Additionally, the portal page serves as an electronic back-up to all case files 

and judicial opinions. All information from the portal page was posted on Harmonie Web for all rule of law 

practitioners in Afghanistan to view. 

46 See ICPC, id., art. 5. “The police, the Saranwal, and the Court are duty bound to clearly inform the suspect and the 

accused before interrogation and at the time of arrest about his or he right to remain silent, right to representation at all 

times by defense counsel, and right to be present during searches, line-ups, expert examination and trial.” 

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stage in the future, he is captured again, but with more substantial evidence, as it may provide evidence of a 

pattern of behavior. 

Prosecute 

When an investigation yields convincing evidence that a national security crime occurred, it must be 

determined what type of crime occurred and what the charges will be. For cases originating from FOB 

Salerno, the Afghan investigators/prosecutors will consult with the ROL JA to determine what the proper 

charges should be. In no way does the ROL JA make the decision for the Afghan officials. The role is 

simply one of guidance, to find the crime that best fits the evidence discovered during the course of the 

investigation. A crime may be found in the Law on Crimes Against Internal and External Security, or 

Articles 173-253 of the Penal Code. From there an outline of the facts and evidence to the elements of the 

crime is created to make sure the crime can be proven in court. Once the crime/crimes of the case are settled 

on, the Afghan investigator/prosecutor prepares the formal case file. 

Afghan Investigator/Prosecutor Prepares the Formal Case File 

The case file is prepared and contains four distinct parts: arrest and search forms; a case preparation created 

by coalition forces; Afghan background and interview forms; and the claim paper and indictment. For cases 

originating out of FOB Salerno, three copies of the case file are made. One of the copies stays with the 

accused and is used by the court. One copy stays with the Khost security crimes prosecution office. The 

third stays on FOB Salerno. Each page of the file is numbered to ensure the integrity of the file. 

Transfer from FDS Salerno to Afghan Custody 

If a case originates from FOB Salerno, transfer to Afghan custody is an extra step in the process that must be 

accomplished. In Khost there are two Afghan options for moving suspects from the FDS to Afghan Custody: 

NDS Khost, or MOJ Khost – Provincial Prison Facility. In both cases coordination for the move is made 

through Afghan partner personnel embedded on FOB Salerno. 

NDS Khost 

While NDS has primary investigative and detention authority over national security/political crimes in 

Afghanistan, experience shows that the NDS Khost were reluctant at best, and at worst sometimes refused, to 

take detainees and their case files from FOB Salerno. It was often claimed that the detention facility located 

at the NDS Compound in Khost to house pre and post trial detainees was full. 

Ministry of Justice (MOJ) Khost Provincial Prison 

Khost is fortunate to have a very good provincial prison warden who takes detainees from the FDS when a 

case has been created. The detainee goes to the provincial prison while the evidence and case file stay in the 

prosecution office in downtown Khost until the court is ready to hear the case. Typically, ANP will come to 

the Entry Control Point at FOB Salerno and take custody of the detainees; from that point on, the detainee is 

fully in the Afghan system. 

Indictment and File Transfer to Court 

Once a file is completed with a claim paper by the investigators, the file is reviewed by the pursuing 

prosecutor (although in some cases the investigative file is actually completed by the pursuing prosecutor). 

The pursuing prosecutor is formally recorded as such via a letter to the court that accompanies the case file. 

In addition to this letter, a formal indictment is prepared and signed by the pursuing prosecutor. The 

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indictment recites the facts and circumstances of the case and the charges against the accused. The 

indictment will also request a guilty verdict from the court and the award of a punishment in accordance with 

statutory guidance. From this point forward the case is in the hands of the court, with the pursuing 

prosecutor presenting the case to the court at the appropriate time. 

Final Thoughts 

Great strides were made on the prosecution front during my time in Afghanistan. Colonel Habibi, with the 

help of some very courageous judges, was able to successfully bring to trial and convict over 50 insurgents.47 

The first ever open public trials were held in Khost Province.48 The Khost Justice Center is being utilized 

and the Rule of Law Field Force – Afghanistan, Team Khost has brought an incredible amount of manpower 

and energy to all rule of law endeavors. Needless to say, much further work is required. Maintaining current 

successes will be difficult as both Afghan and coalition force personnel rotate in and out of post. But the 

change in the rule of law landscape in Khost Province during this period was truly astounding and, by and 

large, can be credited to a small handful of dedicated Afghan Patriots who were determined to make the 

Afghan legal system work. 

IV. When Mars and Venus Align: The Next Step in Interagency Cooperation49 

Editor’s Note: While noting the progress that has been made to date, the following narrative considers, from 

an inter-planetary perspective, what remains to be done to enhance rule of law interagency unity of effort. 

The author also encourages a more effective use of Civil Affairs personnel in the rule of law environment, 

noting (correctly) that “rule of law” is not in the sole preserve of lawyers. 

Nearly ten years after the U.S.-led coalition went to war in Afghanistan and eight years after the invasion of 

Iraq, the Department of Defense (DOD) has made significant progress in developing, adapting, and executing 

rule of law operations. However major challenges remain with respect to integrating military efforts in rule 

of law with counterpart civilian agencies in order to ensure a truly effective and “comprehensive”50 approach 

to such operations. This essay briefly summarizes military rule of law efforts vis-à-vis the interagency 

process, recommends new policy to ensure that the appropriate civilian agencies are part of the strategic 

planning process in the future, and proposes that a serious option to bridge the civilian-military gap with 

respect to rule of law operations would be to make a more consistent and effective use of Civil Affairs (CA) 

personnel51 who are organized and trained for future rule of law deployments. 

U.S. military rule of law operations in conflict and post-conflict theaters is nothing new. As pointed out in 

the Introduction to this volume, it is the soldier-lawyers of the Army Judge Advocate General’s Corps who 

have, throughout their history, played a major role in defining international rule of law operations for more 

than two hundred years. When Andrew Birtle wrote the U.S. Army Counterinsurgency and Contingency 

Operations Doctrine (1860 - 1941), he defined rule of law as the mission of Army officers to aid countries in 

47 Unfortunately the judge who served as the catalyst for Khost’s first open public trials was killed in a suicide bomb
 

attack in the summer of 2011. 

48 Being able to personally witness these first open public trials is a memory that will last a lifetime and I am truly 

blessed to have been afforded the opportunity to be a spectator.

49 Dr. Ellen Klein is currently employed as a Foreign Affairs Specialist for the Office of the Secretary of Defense, 

Deputy Secretary of Defense for Rule of Law and Detainee Policy. She served in Iraq for the Department of State as a 

Rule of Law Advisor. These are her personal views and do not necessarily reflect the views of the U.S. Government, 

the Department of Defense, or its components. 

50 Admiral James G. Stavridis, “The Comprehensive Approach in Afghanistan” Prism 2, No.2, 03/2011, pp.65-76.
 51 Input is need from commanders on the ground to determine the optimum size of the CA units that would be most 

effective.
 

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developing legal systems similar to those in the United States. Such actions were clearly grounded in the 

“deep faith in America’s political and economic system,” a system the U.S. military “believed the rest of the 

world would do well to emulate.”52 However, current rule of law initiatives go far beyond advising on law 

and legal systems. When reconstruction and stabilization in Iraq and Afghanistan began in earnest, the rule 

of law mission quickly expanded to encompass a myriad of sectors in the public sphere, private enterprise, 

and civil society. Such a mission required that the military coordinate and work in conjunction with the 

range of other U.S. civilian government agencies; in particular, the Department of State (DOS), the U.S. 

Agency for International Development (USAID) and the Department of Justice (DOJ). 

The new paradigm for nation building and Counterinsurgency (COIN) operations includes a rule of law 

piece, the understanding of which has morphed into whatever the commander on the ground needs it to mean 

to achieve security in his area of responsibility. For instance, rule of law may begin with trying to reform the 

justice sector, but in so doing it becomes necessary to assist with the proper administration and budget 

management of the judiciary, which in turn, requires a functioning Ministry of Justice and Ministry of 

Finance, both of which may suffer from endemic nepotism, corruption, and a general lack of competence. 

Corruption and incompetence lead to poor public services, which breeds discontent in the local population. 

Thus, an initiative to establish security in a particular area of operations by ensuring criminals are prosecuted 

in local courts is affected by the need to build sufficient capacity to do so throughout the entire host nation 

government. By 2005 it had become obvious that U.S. rule of law efforts were too hefty for any one 

department, agency or bureau, to manage alone. What started as a purely military mission has, over time, 

become something much broader and inexorably linked to civil society development and democracy 

building. 

The realization that coordination of this swath of activities needed focused leadership led the Bush 

Administration to issue National Security Presidential Directive 44 (NSPD-44) in 2005. The primary 

purpose of NSPD-44 was to improve “coordination, planning, and implementation for reconstruction and 

stabilization assistance for foreign states and regions at risk of, in, or in transition from, conflict or civil 

strife.” NSPD-44 provided an overarching interagency coordinating structure to manage reconstruction and 

stabilization operations, and designated the Secretary of State as the U.S. government lead for all rule of law 

activities.53 In 2009, DOD issued DOD Instruction 3000.05 on Stability Operations (DODI 3000.05), 

recognizing that security operations and long-term rule of law capacity building are both necessary for COIN 

success, and directing DOD components to assist the civilian agencies in “strengthening governance and the 

rule of law.”54 

Conventional wisdom tells us “that Defense is from Mars and State is from Venus,”55 and despite multiple 

attempts to establish an official understanding of exactly what is and what is not a rule of law activity,56 

52 Andrew J. Birtle, U.S. Army Counterinsurgency and Contingency Operations, 1860 - 1941, 2004, p.101. 

53 Absent any new Presidential Directives that suspends the processes established by NSPD-44, this directive continues 

to hold. However, authorities established by the original NSPD-44 have been subsumed by the Reconstruction and 

Stabilization Civilian Management Act of 2008 which was included as Title XVI of the Duncan Hunter National 

Defense Authorization Act for Fiscal Year 2009, signed into law by the President on October 14, 2008, as Pub. L. 110­

417. Title XVI amends the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.) and the State Department Basic 

Authorities Act of 1956 (22 U.S.C. 2651a et seq.), authorizing the Civilian Response Corps, and establishing S/CRS in 

the Department of State. Much has been written about S/CRS. 

54 U.S. Department of Defense Directive 3000.05, Military Support for Stability, Security, Transition, and 

Reconstruction Operations (November 28, 2005) cancelled and reissued as U.S. Department of Defense Instruction 

3000.05, Stability Operations (September 16, 2009). 

55 Major Tonya L. Jankunis, “Military Strategists are From Mars, Rule of Law Theorists are From Venus: Why 

Imposition of the Rule of Law Requires a Goldwater-Nichols Modeled Interagency Reform,” Military Law Review, 197, 

Fall 2008, p. 16-102. 

56 For an in depth discussion of the competing definitions, see, for example, Rachel Kleinfeld Belton, “Competing 

Definitions of the Rule of Law: Implications for Practitioners,” Carneige Papers, January 2005, p.5; and Stephen 

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differing mission requirements of DOD and DOS mean that the two departments continue to pursue different 

objectives. For the military, rule of law operationally translates into those activities needed to generate and 

maintain a secure environment. For DOS and other the civilian agencies, rule of law is viewed as long-term 

reconstruction and capacity building of government and private institutions in the host nation. While there 

are obvious overlaps of these two missions, such as the criminal justice triumvirate of cops, courts, and 

corrections, the lessons coming out of both Iraq and Afghanistan demonstrates that a sharp divide remains 

between the civilian and military approaches to the rule of law concept. 

Ad hoc training by, with, and about, the interagency process, though valuable and productive for military 

personnel,57 is often too ephemeral to ensure that civilian agencies are ready to dovetail effectively with a 

military mission. What is needed is specific policy that enables these civilian agencies to integrate into the 

military planning process from the beginning of kinetic operations sustaining this interaction throughout the 

various stages of the mission as it evolves into stability operations, and eventually the advanced stages of 

COIN. Rule of law operations undertaken by the military, such as those which have been recently 

transitioned in Iraq, are ultimately inherited by civilian agencies when the military redeploys and the host 

nation begins to normalize relations with the United States. These agencies (given the way they have been 

and are currently resourced) cannot be expected to take ownership of, let alone sustain, projects created with 

the manpower and resources that DOD can sometimes dedicate to the mission. Thus, it may be appropriate 

for the military to adjust its mission to engage in more modest, yet more sustainable, projects. Moreover, if 

the civilian agencies are brought into a DOTMLPF58 process for rule of law in stability operations from the 

beginning, any handoff to civilian ownership will be smoother and more effective. 

Although some predict that a top-down Goldwater-Nichols like legislative change is on the cards, as 

recommended by a number of academics, practitioners, and leadership,59 current operations have generated a 

bottom-up need for DOD to continue the process of interagency integration. While Joint Publication 3-08, 

Interagency Coordination During Joint Operations VII, charts interagency “dotted line” access during 

military operations, there are no mechanisms at present to foster the synchronization of all the elements of 

national power “simultaneously at the tactical, operational and strategic levels,”60 to create an integrated 

approach to planning, doctrine development and training. Since DOD components have been instructed to 

assist the civilian agencies with rule of law activities in post-conflict arenas, we need to look for ways to 

better ready the force for this capability now.61 

Golub, “Beyond Rule of Law Orthodoxy: The Legal Empowerment Option,” Carneige Working Papers, October 2003, 

p.1-46, p. 3.

57 The NDAA for 2010 mandated interagency Rule of Law training. The USG contractor, the University of South 

Carolina Rule of Law Collaborative, focuses on training relating to interagency understanding and processes. 

58 Doctrine: the way we fight, e.g., emphasizing maneuver warfare combined air-ground campaigns; Organization: 

how we organize to fight, e.g., divisions, air wings, Marine-Air Ground Task Forces (MAGTFs), etc.; Training: how 

we prepare to fight tactically; Materiel: that which is necessary to equip our forces, e.g., weapons; Leadership and
 

education: how we prepare our leaders to lead the fight from squad leader to 4-star general/admiral; professional
 

development; Personnel: availability of qualified people for peacetime, wartime, and various contingency operations; 

Facilities: real property; installations and industrial facilities (e.g. government owned ammunition production facilities) 

that support our forces. 

59 A number of scholars and practitioners have made recommendations for congressional action to pass legislation to 

foster better interagency efforts, including rule of law activities in theater. See, e.g., Joel Bagnal, “Goldwater-Nichols 

for the Executive Branch: Achieving Unity of Effort,” White House Homeland Defense white paper,; Martin Gorman
 

and Alexander Krongard, “A Goldwater-Nichols Act for the U.S. Government: Institutionalizing the Interagency 

Process,” Joint Forces Quarterly, Issue 39, p.51-58. See also “Beyond Goldwater-Nichols: Defense Reform for a New
 

Strategic Era,” Center for Strategic and International Studies (CSIS), Phase I-IV, (Washington, DC: CSIS, 2004-2008) 

http://csis.org/node/13584/publication. 60 Mathew Bogdanos, “Joint Interagency Cooperation: A First Step,” Joint Forces Quarterly, Issue 37, pp.10-18. 61 See Thomas Szayna, Derek Eaton, James Barnett II, Brooke Stearns Lawson, Terrence Kelly, Zachary Haldeman, 

“Integrating Civilian Agencies in Stability Operations,” RAND, 2009, p. 48. 

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A recommended first step toward aligning the two different spheres of influence is that DOD rethink the 

utilization of military personnel already functionally available for rule of law tasks. While judge advocates 

(JAs) have taken the lead on rule of law deployment and force training to date, missions within that category 

often encompass diverse aspects of national development. As an example we have found that much of what 

has been done in Iraq and Afghanistan does not require legal expertise per se. It is true that “many activities 

conducted in rule of law operations involve the practice of law, and therefore must be performed by a JA or 

other attorneys under JA supervision.”62 However, rule of law practitioners are now frequently involved in 

many development and governance activities, such as building capacity in the host nation civil service, 

building capacity in local government entities, and empowering civil society organizations. These projects 

may be best served by other kinds of subject matter experts with a non-legal focus.63 

The military has a ready force of such experts in its CA personnel. CA personnel has historically been 

involved in security and stabilization activities and continue under the formal mission of closely coordinating 

“between the Rule of Law Section and the Governance Section for synchronization and synergy . . . .”64 In 

addition, CA has one of its stated functional specialties area studies and assessments,65 a necessary ingredient 

in effective rule of law planning, tracking and measuring strategies and tactics.66 As Soldiers, CA personnel 

understand the mission, goals, and planning processes of the military. As varied professionals, especially 

those from Reserve units, they understand the complexities of the functions of government entities and civil 

society. With both these skill sets, CA personnel are ideally positioned to assist with the alignment of the 

military and civilian (agencies) ROL intent as the host nation normalizes throughout the post-conflict 

mission. Additionally, CA personnel can use their current doctrine, and take the initiative in managing 

transition between the military and civilian missions while policy for interagency integration is being 

developed and implemented. 

62 Army Field Manual (FM 3-05.40) on Civil Affairs Operations, chapter 2.21-22. For instance, evaluating and 

assisting in developing transitional decrees, codes, ordinances; or the reformation of host nation laws to ensure 

compliance with international legal standards; providing appropriate assistance to the drafting and review process when 

necessary; and most importantly the advising U.S. military commanders and others on the application of international 

law, U.S. domestic law, and host nation laws as they impact the military mission. (Note that this is not exhaustive, 

pending further analysis and doctrine development in the next iteration of Civil-Military Operations FM 3-57.) 

63 See, for example, Jane Stromseth, David Wippman & Rosa Brooks, Can Might Make Rights?, New York: Cambridge 

University Press, 2006, at 389. “If past rule of law programs have been disappointing, one major reason is that far too 

many past programs have been based on simplistic assumptions about the relationship between formal legal institutions 

and durable cultural change. As we have emphasized throughout this book, policymakers and interveners have tended 

to conflate ‘rule of law’ with the formal legal institutions that support rule of law in complex democracies. As a result, 

far too many rule of law programs have focused mainly on judicial training, law reform, and similar forms of technical 

assistance, failing to understand that these programs alone cannot produce rule of law.” 

64 FM 3-05.40 Civil Affairs Operations (2006), “Rule of law operations include measures to (1) provide for the 

restoration of order in the immediate aftermath of military operations, (2) provide for reestablishing routine police 

functions, such as controlling the population, crime prevention, investigating crimes, and arresting those who commit 

crimes, (3) restore and enhance the operation of the court system, to include vetting and training judges, prosecutors, 

defense counsel, legal advisors and administrators, and restoring and equipping court and administrative facilities, (4) 

restore and reform the HN [host nation] civil and criminal legal system, to include reviewing and revising statutes, 

codes, decrees, and other laws to ensure compliance with international legal standards, as well as adopting transitional 

measures for the immediate administration of justice, and (5) provide for an effective corrections system that complies 

with international standards, to include selecting, vetting, and training corrections officials, and constructing or 

renovating appropriate facilities. 

65 FM 3-05.40 Civil Affairs Operations (2006), 2-24. 66 According to a number of sources, assessments have not kept up with need. See, for example Gordon Adams and 

Rebecca Williams, “A New Way Forward,” Stimson Report, March 2011, p.10, “Security assistance programs have 

never had, but badly need, systematic performance evaluation. Under State Department leadership, the executive branch 

needs to develop metrics for such evaluation, aligned to purposes and outcomes, rather than current output measures.” 

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However the training of our CAs, many of whom are former JAs (or who are attorneys in their civilian lives), 

needs to be modernized with the lessons learned from the past ten years. Their role in rule of law activities 

in the field has yet to be made a part of doctrine, and therefore their expertise remains underutilized. What is 

needed is a modernization of the CA organizational structure and a revamping of its rule of law capabilities, 

such that units of rule of law trained CA personnel can be quickly mobilized and integrated into existing 

Brigade Command Teams (BCTs) or with Provincial Reconstruction Teams (PRTs) working alongside 

civilian rule of law practitioners. Training for such teams would not include training in their subject matter 

expertise, but would focus on how to manage the myriad challenges of working with the interagency, the 

international community, and the national or tribal requirements of host governance institutions. 

There is consensus that there is better coordination amongst USG stakeholders than any time in our history.67 

However, to ensure these gains are not lost, DOD and its civilian counterpart agencies should develop policy 

that capitalizes on lessons learned and facilitates doctrine for civil-military coordination and transition of rule 

of law activities. To execute this policy on the ground, the military should consider using CA personnel as 

the mission-constant to shape and implement the transition of the rule of law mission from military to 

civilian control. These efforts will provide for a more efficient use of resources and more effective rule of 

law initiatives. Finally, CA personnel should be trained and deployed as the first bottom-up step toward 

future policy development toward sustainable interagency integration. Fighting terrorism through the 

medium of global stability demands that the hard-won rule of law successes from Iraq and Afghanistan are 

recognized by DOD and DOS alike for the utility that they have delivered. Will that recognition allow the 

planets to align to deliver the true unity of effort that the rule of law universe craves? 

V. The Rule of Law at Dawn: A Judge Advocate’s Perspective on Rule of Law 

Operations in Operation Iraqi Freedom from 2008 to 201068 

Editor’s Note: In a year that has seen the transfer of US led Iraqi rule of law initiatives from the military to 

the civilian component, it is timely that the Handbook features a narrative that reflects upon the military’s 

(recent) involvement in this line of operations, and the challenges that lie ahead. This article, written over 

the course of two deployments, does just that. 

Abstract 

Through the observations of a judge advocate assigned to the Rule of Law mission within Iraq between 2008 

and 2010, the critical aspects of successful Rule of Law operations are: Unity of Effort; Interagency and Host 

Nation Relationships; synchronization of efforts with the host nation Internal Defense and Development 

(IDAD) Strategy; Prioritization of effort based on need and resource availability; and thorough but fluid 

planning. Each of these must be considered during the planning, execution and assessment of Rule of Law 

operations to ensure the success of those operations. Unity of Effort within a Rule of Law mission refers to 

the need to synchronize information and efforts of Rule of Law actors in order to effectively marshal 

resources towards achieving the desired Rule of Law objectives and end states. Deployed Rule of Law 

67 The rule of law lessons learned first in Iraq, and then refitted for the even more challenging environment of 

Afghanistan, must not be lost. While much interagency success is due to the personalities on the ground, sustainability 

can be achieved through careful doctrine and policy initiatives including the capacity building of the rule of law 

practitioners throughout the U.S. government. The Rule of Law Field Force in Afghanistan (ROLFF-A), initially 

commanded by a judge advocate general officer, and now dual-hatted with the NATO Rule of Law Support Mission 

(NROLSM) has set a new standard for the success of interagency and international cooperation. 68 This article, written by Captain Geoff Guska, is reprinted, with permission, from Small Wars Journal per the SWJ 

Creative Commons license. The SWJ article is available at http://smallwarsjournal.com/blog/journal/docs-temp/674­

guska.pdf. 

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operations are, by their nature, a joint interagency effort that relies on effective and constructive relationships 

to connect those agencies with the appropriate host nation partners in order to accomplish their assigned 

tasks. This synchronization and relationships building is done with the primary focus of working “by, with 

and through” host nation partners in the furtherance of the Rule of Law components of the host nation IDAD 

strategy. Once the Rule of Law components of the host nation IDAD strategy is identified, the Rule of Law 

practitioner needs to prioritize the available resources against the host nation IDAD objectives in order to 

ensure effective application of limited resources towards achieving those objectives. The above process is 

made possible through a continuous planning cycle that considers the host nation IDAD strategy in light of 

available resources, the tactical situation and the ground commander’s desired end states. The consideration 

of these factors will assist the Rule of Law practitioner in developing and implementing Rule of Law projects 

to assist the Host Nation in the advancement of its IDAD strategy. 

Introduction 

The end of Operation Iraqi Freedom and the subsequent rise of Operation New Dawn offers a unique 

opportunity to reflect on Coalition and U.S. efforts to stabilize and grow the Rule of Law69 in Iraq. In the 

course of Operation New Dawn, distinct new challenges will face Rule of Law practitioners in their 

continued efforts to enhance the Rule of Law in Iraq. These challenges will be the result of changing 

authorities, reduced resources and limited access to host nation Rule of Law institutions and actors. In order 

to assist Judge Advocates and Rule of Law practitioners in developing a workable and effective way forward 

on Rule of Law operations, this article highlights effective Rule of Law Tactics, Techniques and Procedures 

(TTPs) observed between 2008 and 2010.70 These observations are primarily from the foxhole of one judge 

advocate during that time period; however, when effective TTPs are coupled with applicable doctrine,71 such 

observations may prove useful to Rule of Law practitioners in planning future Rule of Law operations. From 

those observations and experiences, the TTPs that are essential components of a successful Rule of Law 

effort are: Unity of Effort; Relationships; working By, With, and Through host nation partners; Change We 

Can Accomplish; and effective Planning. 

69 Rule of Law is an expansive concept for which no singular definition exists. The “Rule of Law” is a wide ranging 

aspirational goal for what a “just” society should look like. As such, much ink could be spilt over what is the proper 

definition of “Rule of Law.” However, in the counter-insurgency or stability operations environment, the definition of 

“Rule of Law” must be driven by the host nation and it’s Internal Defense And Development (IDAD) strategy. As a 

result, the Rule of Law practitioner must be able to understand and articulate the legal theories, and practical 

components, of the “Rule of Law.” Thereby allowing the Rule of Law practitioner to outline, to their Commanders, the 

necessary components and steps required to achieve appreciable gains in the “Rule of Law.” From there, Commanders 

can develop an operationalized “Rule of Law” objective or end-state that is properly nested within the host nation 

IDAD. From that operational definition, the Rule of Law practitioner can focus their efforts towards the Commander’s 

“Rule of Law” end-state. 

70 The author served with the 25th Infantry Division during its deployment to the Iraqi Joint Area of Operations (IJOA) 

as Multi-National Division North (MND-N) between 2008 and 2009. During that the deployment, the author was 

assigned as the MND-N Command Post - South (CP-S) Judge Advocate where he dealt with Operational Law and Rule 

of Law matters covering the full spectrum of Rule of Law operations, including; judicial development, police training, 

warrant based targeting and attempts at criminal prosecution through the Iraqi criminal justice process. In 2010, the 

author again deployed to the IJOA as the Special Operations Task Force – Central (SOTF-C) Judge Advocate where he 

assisted with Rule of Law matters in the context of warrant based operations. 

71 See generally JOINT CHIEFS OF STAFF, JOINT PUB. 3-22, FOREIGN INTERNAL DEFENSE (FID) (JUL. 2010) [hereinafter 

JOINT PUB. 3-22]; U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS (Oct. 2008) [hereinafter FM 3­

07]; U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY (Dec. 2006) [hereinafter FM 3-24]; U.S DEP’T 

OF ARMY, FIELD MANUAL 1-04 LEGAL SUPPORT TO THE OPERATIONAL ARMY (Apr. 2009) [hereinafter FM 1-04]; THE 

JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, RULE OF LAW HANDBOOK: A PRACTITIONER’S GUIDE FOR 

JUDGE ADVOCATES (2008). 

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Unity of Effort 

“Come together, right now, over me” – The Beatles 

The most critical aspect of successful Rule of Law efforts is unity of effort.72 It is essential to effectively 

marshal the wide range of organizations, entities, expertise, information and resources required to achieve 

success in Rule of Law operations.73 

During pre-mission training, for a deployment with the 25th Infantry Division to Iraq, the author had several 

opportunities to glimpse the wide array of organizations and entities working Rule of Law efforts.74 To the 

uninitiated, the alphabet soup of organizational abbreviations is formidable, but the true challenge facing the 

Rule of Law practitioner is synchronizing the information flow and operations of those organizations in order 

to effectively utilize available resources to achieve the desired Rule of Law objectives.75 

Unity of effort through synchronization of information and action is essential for Rule of Law operations to 

achieve their desired end state.76 Synchronization is critical because the interconnected nature of the 

criminal justice process means that a slight twitch at one point within the process can easily be amplified in 

its downstream second and third order effects. Without a comprehensive and inclusive approach that 

coordinates the actions and inputs of the organizations and agencies impacting Rule of Law operations, 

individual organizations may be duplicating efforts, or worse, taking actions that create counter-productive, 

contradictory or undesired outcomes later in the system.77 Furthermore, Rule of Law operations themselves 

do not occur in a vacuum. The majority, if not all, will be conducted within the context of counterinsurgency or stability operations. As a result, the Rule of Law practitioner must also ensure that Rule of 

Law operations are properly nested within the overall counter-insurgency strategy, thereby ensuring a greater 

unity of effort towards the common objective.78 Therefore, properly coordinating and synchronizing the 

72 See FM 3-24 para 2-13; FM 3-07 para 1-14 through 1-16. 73 What “success” looks like in terms of a Rule of Law mission or operation depends heavily upon the operationalized 

definition of Rule of Law itself and the Commander’s desired Rule of Law end-state. While there may be many 

different ways to grow and build a host nation’s Rule of Law capacity, if such efforts are not properly nested in the 

commander’s desired end-states and objectives, which in turn must be driven by the host nation IDAD strategy, the 

Rule of Law efforts are liable to hinder other efforts aimed at achieving the host nation’s IDAD goals.

74 These opportunities came through a variety of sources that included: the review of U.S. Army JAG Corps 

publications and with After Action Reviews from deployed judge advocates; attendance at TJAGLCS short course on 

Rule of Law operations; attendance at a conference on Rule of Law and Business Development sponsored by the 

Business Transformation Agency; along with conversations with judge advocates in theater who the 25th Infantry 

Division was to replace. 

75 See generally FM 3-07 para 1-14; FM 3-24 ch. 2 (Discusses integration of Civilian and Military efforts in the context 

of COIN operations).

76 This requirement is specifically articulated in JOINT PUB. 3-22, wherein it notes that Foreign Internal Defense (FID) 

missions are, “a multinational and interagency effort, requiring integration and synchronization of all instruments of 

national power.” It continues by stating that “U.S. military support also requires joint planning and execution to ensure 

that the efforts of all participating combatant commands, subordinate joint force commands, and/or Service or 

functional components are mutually supportive and focused.” Id at ch. I, para.(5)(e). Consequently, Rule of Law 

operations, being a subcomponent of the larger FID mission, must be properly synchronized and nested for them to be 

successful. 

77 See FM 3-24 para 1-121. 78 The broad nature of the “Rule of Law” allows for varying approaches to how the Rule of Law can be built or 

enhanced. Without proper synchronization with the host nation IDAD strategy, efforts to build host nation capacity can 

result in projects that do not advance the host nation IDAD goals and objectives. An example of this was seen in 

Kirkuk with a Civil Affairs effort to enhance the capabilities of the Iraqi Inspector General’s office. While such efforts, 

undoubtedly, would promote the Rule of Law within Iraq, they were not attached to any other aspect of the Rule of Law 

goals within the overall counter-insurgency and stability operations strategy. As a result, while the project may have 

had positive results for the Rule of Law in a specific area, those advances did little to assist in achieving the host 

nation’s or senior mission commander’s specific Rule of Law end state goals. 

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efforts of all, or at least the major rule of law players, will ensure that limited resources are effectively 

employed towards achieving Rule of Law objectives as outlined by the commander’s objectives as informed 

by the host nation’s Internal Defense and Development (IDAD) strategy.79 

When the 25th Infantry Division assumed the role of Multi-National Division North (MND-N) in Operation 

Iraqi Freedom phase 09-11, the task organization of entities involved in Rule of Law operations in Iraq was 

driven by the partnership and assistance mission.80 This task organization for Rule of Law operations 

resulted in numerous entities that interacted with the host nation criminal justice system. However, none of 

these organizations had responsibility for the entirety of that system.81 As a result, multiple organizations 

provided assistance across a wide spectrum of subject areas, ranging from training and capacity growth of the 

Iraqi Police82 to mentorship and assistance for the Judiciary83 and all aspects in between. The wide range of 

organizations involved requires the Rule of Law practitioner to understand the mission, nuanced capabilities 

and limitations of each particular organization, along with the ground truth of what the organization really 

does. Once those capabilities and missions are understood collectively, the critical component for success is 

the synchronization of those efforts to achieve the desired end-state as articulated by the senior mission 

commander. 

While conceptually this synchronization appears simple, its application in Diyala province was far from. 

Within days of arriving at the MND-N Command Post in Diyala, it became clear that understanding the 

micro (i.e. within the province) and macro (i.e MND-N and beyond) nesting of Rule of Law actors and 

missions was critical to accomplishing the Rule of Law mission. Gaining an understanding of the expanse 

and capabilities of Rule of Law actors at all levels required a two step analysis. 

First, it was necessary to identify the principal actors working within the Rule of Law sphere of influence in 

the province and uncover what they actually did.84 The initial assessment identified a minimum of eleven 

separate USF/Coalition organizations or actors within the province that touched “Rule of Law” in some 

way.85 Additionally, numerous other organizations existed at higher echelons that also impacted Rule of 

Law operations.86 This analysis provided the overview of what capabilities existed within the province, 

79 See FM 3-07, para 2-21. 80 Force, Corps and Division Operations Orders (OPORDs) and Fragmentary Orders (FRAGOs) defined the roles of 

military and enabler organizational responsibilities and inputs to Rule of Law operations. Additionally, U.S. 

Government civilian Agencies (Department of State (DoS) and Department of Justice (DoJ)) provided guidance to their 

respective organizations as to their duties and responsibilities within Rule of Law operations. 

81 The difficulty posed by this lack of a singular entity responsible for providing direction for Rule of Law efforts was 

two-fold. First, and most obvious was the lack of a singular entity to articulate the host nation IDAD strategy and 

provide direction for subordinate actors to implement that strategy. Second, was that without a singular connection with 

the host nation, the ability to offer potential refinements or shifts in the host nation IDAD strategy was not readily 

available, potentially degrading the ability to implement effective programs to grow the Rule of Law. See JOINT PUB. 3­

22 ch. II, para. (1).

82 Most notably were the Police Transition Teams (PTTs), International Police Advisors (IPAs), Law Enforcement 

Professionals (LEPs) in addition to other U.S. private and governmental assistance teams along with other international 

initiatives. 

83 This was primarily done through the DoJ Office of Overseas Prosecutorial Development and Training (OPDAT), 

Provincial Reconstruction Team (PRT) Rule of Law Advisors (RLAs), USF judge advocates along with international 

judicial assistance programs. 

84 It was quickly discovered that there were several organizations that briefed well on paper, but it was unclear as to 

what value they actually brought to the warfighter on the ground. Rule of Law practitioners need to be keenly aware of 

the “it briefed well” organizations by having a solid understanding what that organization is actually doing.

85 The identified organizations were: the Provincial – Police Transition Team (P-PTT); PTTs; Corrections Assistance 

Training Teams (CATTs); IPAs; LEPs; PRT RLAs; judge advocates; the Provost Marshall/Military Police; Civilian 

Affairs teams; individual units; and Special Forces Operational Detachments. 86 For the most part these organizations requested and received information, and coordinated resources on larger Rule of 

Law projects. 

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where those capabilities were partnered, and what shortfalls or gaps in Rule of Law partnership or expertise 

existed. That understanding proved to be critical in planning and executing of Rule of Law operations and 

initiatives within the province. 

Second, was the analysis of how the organizations engaged in Rule of Law operations within the province 

synchronized their efforts. It was quickly determined that there was no significant provincial level 

coordination for Rule of Law efforts and operations. Due to meeting overload, the bi-weekly Provincial Rule 

of Law meeting attendance steadily declined until it was cancelled due to the lack of participation.87 

Additionally, the parallel commands88 within the province led to additional challenges in synchronizing not 

only efforts, but also information flow.89 While information on Rule of Law efforts and events did flow to 

higher echelons through separate reporting channels, many times that information did not filter back down to 

the front-line Rule of Law practitioners in a timely or predictable manner.90, 91 The failure to create a unity 

of effort amongst differing commands severely degraded the effectiveness of Rule of Law operations, which 

was visible in the warrant based targeting process92 and in unsuccessful training efforts.93 

87 This cancellation was significant as it removed the only forum through which efforts and information of all Rule of 

Law actors could be cross-leveled at the provincial level. The importance of such forums cannot be understated. While 

Situation Reports (SITREPs) are useful, actually being able to sit down and discuss events and issues enhances the 

overall understanding of the Rule of Law situation and allows greater opportunities to develop effective and workable 

solutions to those issues. 

88 Within the province was found a Brigade Combat Team (BCT), the PRT, Transition Teams (MiTTs/P-PTTs/PTTs) 

and Special Forces Operational Detachments, all of whom had separate reporting channels that did not necessarily 

converge at the provincial level. 

89 A salient example of this was seen during an iteration of the Traveling Judge program in Diyala. A civilian 

augmentee member of the 5th Iraqi Army Military Transition Team would report information about the Iraq Army 

Detention facility at FOB Khamees directly to the Multi-National Corps – Iraq Provost Marshall’s Office for Detainee 

Operations. As a result of this, information would flow directly from the tactical level to the Corps level command and 

vice-versa without any input or cross-leveling from the Division or Brigade commands. In this particular instance, a 

MNC-I PMO official saw Iraqi judges getting on a helicopter and reported, incorrectly, to his 5IA MiTT augmentee that 

judges were moving to FOB Khamees in Diyala. The MNC-I PMO officer was unaware that, due to other operational 

needs, these judges had been tasked to Mosul. From there, the augmentee proceeded to pass information on these 

judges to the Brigade. This informational short circuit resulted in a six hour SPINEX as the Brigade, Division and 

Corps headquarters attempted to uncover which judges were moving to Diyala. While comical, this situation was sadly 

repeated due to the informational gaps created by separate, non-unified, reporting channels. 

90 MND-N made several attempts at centralizing rule of law informational inputs to the Division headquarters, however, 

due to the large number of organizations participating in Rule of Law operations it was unclear by the end of the 

Division’s deployment whether all information relating to Rule of Law operations was flowing into a single Rule of 

Law node. 

91 One example of this was the reporting requirements imposed by Multi-National Corps – Iraq (MNC-I) for Judicial 

KLEs. The applicable FRAGO required the Rule of Law practitioner, when conducting a courthouse KLE, to obtain a 

wide scope of information about the courthouse that would then be sent up to MNC-I. However, information regarding 

trends and other observations and analysis from these visits would rarely, if ever, flow back down through reporting 

channels to the Rule of Law practitioner on the ground which could have been used to better guide Rule of Law 

practitioners in conducting KLEs and developing projects. As a result, the Rule of Law practitioner should continually 

assess reporting requirements to ensure that meaningful analysis of requests for information (RFIs) reported up the 

chain, filters back down so as to assist in refining operations to achieve the desired Rule of Law objectives found within 

the host nation IDAD strategy. 

92 Successful execution of warrant based operations requires significant coordination with both the US and host nation 

organizations. Unfortunately, much of the coordination needed to build successful warrants was not seen within the 

province. Efforts to obtain warrants were stove-piped within a particular staff section, which invariably failed to 

capture information, know-how, and host nation contacts possessed by other Rule of Law practitioners, that was 

required to work within the Iraqi criminal justice process. This fundamental misunderstanding of the criminal justice 

process coupled with the lack of contacts within the system led to many abortive efforts to obtain warrants. 

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Contrasted to this was the Rule of Law effort one province over in Salah ad Din province. There, the 

effectiveness of unity of effort was seen through that Brigade Combat Team’s (BCT) warrant-based targeting 

process which prosecuted targeted individuals with a notable degree of success. This success stemmed from 

a unified process which brought together capabilities and experience, from different staff sections and 

outside organizations to work on a common problem. Specifically, information regarding the targeted 

individual was properly declassified94 and then passed to the BCT Judge Advocate who consolidated the 

declassified information with witness statements and other evidence in order to build a criminal complaint. 

The complaint was then filed by the BCT Judge Advocate in the appropriate courthouse or police station, 

thereby injecting the case in to the host nation criminal justice system. The benefit of this system was that it 

turned the USF criminal complaint into a “test case” which allowed the various Rule of Law participants to 

help their host nation partner’s process improve, and develop their own skills as the case worked its way 

through the criminal justice process. Two distinct successes are exhibited in this unified system. First, it 

allowed the BCT and other USF actors to provide assistance and mentor the host nation criminal justice 

system actors. Second, and more importantly, it legitimized the criminal justice process it sought to help by 

working within the host nation system, thereby achieving one of the cornerstone goals of stability and 

counter insurgency operations.95 Neither of which would have been achieved without a unified approach on 

the part of the BCT. 

An additional benefit of unity of effort in Rule of Law operations is its ability to act as a force multiplier. 

Inclusion of other Rule of Law practitioners and organizations within an effort ensures that the varied 

knowledge, experience, and information networks of those individuals or organizations are available for the 

particular Rule of Law project or initiative. An example of this force multiplier effect of unity of effort is 

seen through the warrant based targeting method utilized by subordinate units of Special Operations Task 

Force Central (SOTF-C) in Iraq. There, a partnered force had executed a warrant, but lacked the institutional 

knowledge of how to get the detained individual in front of the specific investigative judge that issued the 

warrant for an initial hearing. Through a unified flow of information, the Task Force Judge Advocate was 

notified and was then able to work both with the subordinate unit, SOTF-C’s higher headquarters and 

laterally with the Law and Order Task Force (LAOTF) to gather additional information necessary to 

coordinate for the Iraqi investigative judge that issued the warrant to hear the case. Through leveraging 

assets available to them, specifically the Task Force Judge Advocate, the SOTF-C subordinate unit was able 

to assist their partner force in securing a detention order on their detainee. These host-nation to host-nation 

connections are the end state of a successful Rule of Law operation because it is precisely those connections 

that will sustain and build host nation capacity and legitimacy after the Rule of Law practitioner has 

redeployed to home station. 

These examples highlight the effectiveness of a unified approach to Rule of Law efforts. The 

synchronization of information and efforts is essential in all military missions, but it is acutely important 

93 The impact of the lack of unity of effort was exemplified through a training event sponsored by an Explosive 

Ordnance Disposal (EOD) company. The EOD element had scheduled a training event on finger print evidence on a 

US Forward Operating Base (FOB). An invitation to the provincial judiciary had been passed through the BCT Judge 

Advocate to the Provincial Deputy Chief Judge. Unfortunately, but not surprisingly, no one from the Iraqi judiciary or 

the local Iraqi Police attended the training. While this effort worked through the military chain of command, it failed to 

integrate the PRT Department of Justice Rule of Law Advisor (RLA). Including the RLA, who had weekly meetings 

with the Provincial Chief Judge, would have revealed that the Chief Judge had explicitly stated that none of his judges 

would attend events on a U.S. military base due to concerns for their safety. If they had properly synchronized their 

efforts with other Rule of Law actors, the EOD Company could have better directed their efforts to achieve the desired 

end state, such as bringing the training to the Judges at the provincial courthouse or at another designated location. 

Therefore, it is essential to cross level Rule of Law plans with the relevant actors and organizations to ensure vital 

information is obtained in order to maximize the expenditure of resources in achieving the desired outcome. 

94 Proper declassification occurred through the authorized Foreign Disclosure Officer, which was coordinated through 

intelligence channels. 

95 FM 3-24, para. 1-119. 

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when working with multiple inter-agency and intra-agency organizations involved in Rule of Law 

operations.96 It allows for critical information and experience to be cross-leveled and considered in the 

planning and execution phases of Rule of Law operations, thereby ensuring that second and third order 

effects of those operations are understood and that the operations themselves are successful. Unity of effort 

is critical to the success of Rule of Law operations, and Rule of Law practitioners should take concerted 

efforts to unify both information and operations. 

Relationships 

“I get by with a little help from my friends” – The Beatles 

The ability to build, use and leverage professional relationships is another one of the critical skills for 

working effectively as a Rule of Law practitioner. Deployed Rule of Law operations, by nature, are a joint 

interagency endeavor that intersects with host nation actors in order to influence and shape perceptions and 

attitudes in order to guide outcomes is critical to mission success.97 As a result, the importance of effective 

“people skills” in the pursuit of these goals cannot be understated. Positive professional and interagency 

relationships developed by the Rule of Law practitioner are an undeniable facilitator of the unified effort 

required to conduct successful and effective Rule of Law operations. 

Any effective attorney will readily admit that the practice of law is built around relationships and reputations. 

That understanding, coupled with an appreciation of the importance of productive work relationships proved 

to be extremely helpful for the author in forging relationships with other Rule of Law practitioners and actors 

at the tactical level and at higher echelons. These positive relationships proved useful in facilitating Rule of 

Law initiatives and projects. Specifically, a positive relationship with the Provincial Reconstruction Team 

(PRT) Rule of Law Advisor (RLA) allowed wide access to judicial Key Leader Engagements (KLEs) and 

information on Rule of Law efforts, access to the PRT’s interpreters and linguists along with Department of 

Justice (DoJ) and Department of State (DoS) resources. More importantly, the positive relationships built 

with the PRT allowed for synchronization and nesting of operations, unifying PRT efforts with the overall 

Division Rule of Law goals and objectives. Likewise, positive relationships built with the Provincial MiTTs 

opened opportunities for additional KLEs and movement related support without having to go through the 

cumbersome tasking process. 

However, the relationships built with host nation partners were the most important ones for facilitating Rule 

of Law operations. Counter insurgency and Stability Operations can only be successfully performed by 

working “by, with and through” host nation actors and organizations.98 As such, building relationships with 

key host nation actors is a critical task. Careful thought and research is needed to understand the cultural 

nuances and substantive informational aspects99 required to build a productive relationship. In Diyala, these 

relationships were built over tea and discussions about both Iraqi and U.S. law, which provided critical 

information and insights into developing and implementing effective Rule of Law operations there. While 

time is limited in those KLEs and meetings, it is crucial to spend time building relationships that can then be 

96 The “who” and “how” of how this synchronization will occur are the pieces that the Rule of Law practitioner must 

determine in light of the organizations on the ground. The operational environment facing Rule of Law practitioners 

will vary based on the organizations involved and their command authorities and relationships, making it impossible to 

articulate a “one size fits all” approach to command and control for Rule of Law operations. However, the importance 

of ensuring unified efforts requires the Rule of Law practitioner to identify this need to commanders prior to 

deployment or early on within Rule of Law operations to ensure lines of communication and command are clearly 

articulated in order to facility unity of effort. 

97 FM 3-24, para. 1-119 

98 See FM 3-07, para. 2-32; See generally FM 3-24 Chapter 2; FM 3-07 ch. 2. 99 Understanding and being able to converse intelligently about the host nation law is extremely important in building 

credibility with the host nation partner and in identifying and avoiding possible friction points. Rule of Law 

practitioners must have a solid grasp of the substantive material that is going to be discussed with their host nation 

partners to ensure the maximum benefit is achieved from those meetings. 

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leveraged for operational and informational purposes later. KLEs that only seek to extract information from 

the host nation partner without cultivating the underlying relationship will limit or reduce the long term 

effectiveness of that partner by failing to build the trust and rapport needed to gain critical information or 

assistance with projects and initiatives. 

Understanding the nuances and complexities of interagency operations and host nation interactions are 

essential components of deployed Rule of Law operations. The interconnected and joint nature of Rule of 

Law operations requires positive relationships to facilitate information flow and operational effectiveness. 

When relationships between the practitioners and players are dysfunctional or broken, the overall 

effectiveness of rule of law mission will be degraded. It is understood that not everyone will get along or 

sing the proverbial “kumbaya” together; however, Rule of Law practitioners must ensure that relationships 

are professional enough to effectively work together towards a common objective and end state. As a result, 

Rule of Law practitioners must be able to build and maintain positive working relationships with other rule 

of law actors, both inter and intra agency, along with host nation rule of actors, in order to effectively 

conduct Rule of Law operations. 

By, With, and Through 

“Legitimacy is the Center of Gravity for Both the Insurgents and the Counterinsurgents” – FM 100-20100 

The most effective Rule of Law operations are those that work within the host nation Rule of Law 

framework and have host nation support. Deployed Rule of Law operations are a subcomponent of FID 

activities, which takes place within counter-insurgency and stability operations aimed at assisting the host 

nation with its IDAD strategy. The end state of those activities is to assist the host nation government in 

freeing and protecting its “society from subversion, lawlessness, insurgency, terrorism, and other threats to 

their security.”101 To achieve this in the context of Rule of Law operations, the Rule of Law mission must be 

properly nested within the host nation IDAD strategy in order to achieve lasting success. This requires Rule 

of Law practitioners to work “by, with and through” their host nation counterparts to ensure that projects and 

initiatives are based on the host nation’s needs and goals as related to its IDAD strategy. This nesting of 

action within the greater IDAD strategy should help to ensure Rule of Law efforts are viewed as legitimate, 

and credible efforts towards building the effectiveness of the host nation Rule of Law processes by both host 

nation Rule of Law actors, and the host nation population.102,103 Furthermore, the limited resources available 

for Rule of Law efforts requires that those resources be applied to projects that are most likely to succeed.104 

Failure to work by, with and through host nation rule of law actors in developing rule of law projects and 

plans threatens the effectiveness and success of those initiatives and could result in wasted resources, or 

worse, a de-legitimization of the host nation Rule of Law processes. 

Successful counter-insurgency operations are driven by host nation needs and objectives.105 Within the Rule 

of Law context, this means successful operations will be the result of understanding and then responding to 

the local population needs in formulating projects and assistance plans for the host nation Rule of Law 

process. Enabling the host nation to stabilize, improve and refine its Rule of Law processes and procedures 

helps not only build effectiveness but also foster legitimacy, one of the key end states of stability and counter 

100 See U.S. DEP’TS OF ARMY AND AIR FORCE, FIELD MANUAL 100-20 / AIR FORCE PAMPHLET 3-20, MILITARY 

OPERATIONS IN LOW INTENSITY CONFLICT (Dec. 1990)(Inactive) Chapter 2. 101 JOINT PUB. 3-22, Ch. 1, para. 1.a. 102 “Commanders and staffs must continually diagnose what they understand legitimacy to mean to the [host nation] 

population. The population’s expectations will influence all ensuing operations.” FM 3-24, ch. 1-118. 103 “But the most important attitude remains that of the [Host Nation] population. In the end, its members determine the 

ultimate victor.” Id. 104 Limitations exist as to time, manpower and funding on both the Coalition side and host nation side. 105 See generally JOINT PUB. 3-22, ch. 2. 

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insurgency operations.106 To effectively accomplish this, information relating to the host nation’s Rule of 

Law specific IDAD goals, along with identified deficiencies and needs, must be communicated through 

reporting channels so that appropriate planning and allocation of resources can occur. Projects and 

assistance plans must take into account the disparities found within the host nation’s processes and systems, 

in that what is needed in one area was not necessarily required in another.107 For example, during 2008 

through 2009, the observed capabilities of Iraqi courts varied widely throughout the country. Provincial 

courts in the South worked on electronic case file management systems, whereas courts in the North were 

content when a week went by without a direct threat on a judge. Therefore, a “one size fits all” approach to 

Rule of Law projects is unlikely to be successful if it does not address the local population’s Rule of Law 

needs and desires. 

Additionally, working “by, with, and through” host nation partners provides the Rule of Law practitioner 

with relevancy and legitimacy in the eyes of their host nation counterparts. Not all counter-insurgency and 

stability operations are conducted in permissive environments. As such, the Rule of Law practitioner must 

be able to communicate to their host nation counterparts the reasons to work with the Rule of Law 

practitioner. Supporting the host nation IDAD strategy is one method to do so. Such support leverages the 

Rule of Law practitioner’s available resources to support projects desired by the host nation, thereby 

advancing the desired host nation’s Rule of Law end states and objectives. Failure to convey how the Rule 

of Law practitioner can be relevant to a host nation counterpart, in a non-permissive environment, may result 

in the loss of that counterpart’s willingness to work with the counter-insurgent Rule of Law practitioner. As 

such, the Rule of Law practitioner must conduct periodic assessments to ensure that the collective “we” 

working together on projects includes both their host nation counterparts and their desires and projects.108 

Two compelling examples of effective Rule of Law initiatives that were conducted “by, with, and through” 

host nation counterparts are the Rule of Law conferences facilitated by MND-N and one of its subordinate 

BCTs. The first example is seen through the BCT working within Salah ad Din province that facilitated a 

Judicial Conference that had been sought by the Provincial chief judge. This conference brought together all 

of the Judges in Salah ad Din province to discuss issues facing the provincial judiciary. The plan was 

warmly accepted by the Salah ad Din judicial leadership along with the rank and file judges and prosecutors. 

This acceptance, and desire to build internal bridges, led to a successful conference that established positive 

momentum needed to achieve other Rule of Law improvements and objectives.109 Based on the success of 

this provincial level conference, an MND-N wide conference was planned and implemented which brought 

together judges from the provinces of northern Iraq to discuss issues facing them. The significance of this 

conference was that the Iraqi judges were provided an entire day to discuss issues that they wanted to discuss 

without any coalition input or questions, thereby allowing the Iraqis to take lead and drive the conversation 

in directions that they desired it to go. As a result of this MND-N wide conference, the judges who attended 

developed a prioritized list of issues facing the judiciary in Northern Iraq to address with the Higher Juridical 

Council,110 along with a desire to hold future conferences. The success of this conference was the direct 

result of host-nation participant “buy-in” to the initiative along with the willingness of MND-N facilitators to 

allow their host nation counterparts to use the conference to meet host nation needs. 

106 FM 3-24, para 1-131, Id at 1-132.
 107 FM 3-24, para. 1-155.
 108 Rule of Law practitioners need to be cognizant of the host nation IDAD strategy and host nation Rule of Law 

structure to ensure that efforts and initiatives are enhancing or improving host nation systems and goals, rather than
 

creating new systems or procedures that are foreign to the host nation and unsustainable absent outside assistance or
 

support. 

109 It was discovered that judges within the province did not know each other and were excited at the prospect of
 

meeting their fellow judges to discuss issues facing the judiciary. These conferences facilitated a stated desire on the
 

part of host nation counterparts. 

110 The Higher Juridical Council is the body that it provides oversight and management for all courts in Iraq. 

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Contrasting these successful efforts was the failure of the Provincial Justice Committee (PJC) initiative in 

Diyala Province, an initiative that failed to garner host-nation support. The PJC construct sought to bring 

together key actors in the criminal justice process to discuss issues facing the criminal justice process in 

Diyala. These forums were initiated and facilitated by U.S. Rule of Law practitioners in an attempt to 

overcome the lack of communication between host nation actors in the criminal justice process.111 It was 

hoped that improved communication between senior leaders in the Police, Judiciary and Corrections agencies 

within the province would assist with reducing detainee overcrowding and speed criminal case processing. 

The first PJC meeting was well attended by all but the Iraqi Security Forces (ISF). The lack of key 

individuals from the ISF, specifically the Provincial Chief of Police, along with any representative from the 

Iraqi Army, raised concerns on the part of the Diyala judiciary as to the effectiveness and relevance of the 

meetings. This first PJC, while productive, ended with the Provincial Chief Judge noting that future 

meetings “must” include the Provincial Chief of Police and Iraqi Army leadership in order for the PJC to be a 

meaningful forum. A second PJC was attempted two months later after the Provincial Chief of Police and 

Iraqi Army had been invited to the forum through their U.S. advisors. Again, neither appeared, leading the 

Provincial Chief Judge to state that he would not attend another meeting unless the Chief of Police and heads 

of the security forces in Diyala attended. A third attempt at the PJC was made by the land owning BCT, 

however only members of the Diyala Judiciary arrived at the PJC. This proved to be the last PJC meeting 

held in Diyala during the author’s deployment. While several factors led to the failure of this effort, the 

primary factor was the lack of “buy in” by the required host nation participants, specifically the Iraqi Police. 

This lack of host nation support for the initiative led to its collapse. In other provinces, where there was 

appropriate host nation support, PJCs became a successful tool for improving the criminal justice process 

through increased communication between key players in the criminal justice process. 

The examples above highlight that the effectiveness of Rule of Law projects and initiatives depends heavily 

upon how well they are nested within the host nation’s Rule of Law objectives and goals. Supporting host 

nation initiatives and goals is critical to both legitimizing the effort itself, and enhancing the host nation’s 

Rule of Law capacity. Furthermore, working within the host nation’s identified IDAD strategy needs for 

Rule of Law initiatives ensures that limited resources are effectively used. As a result, Rule of Law 

practitioners must work “by, with and through” their host nation counterparts by understanding and 

considering the host nation’s Rule of Law needs and desires in determining which projects or initiatives 

would effectively further the desired Rule of Law objectives and end states. 

Change We Can Accomplish 

“Small is Beautiful” – FM 3-24 

In addition to working “by, with, and through” host nation Rule of Law counterparts, an effective Rule of 

Law practitioner must understand the importance of undertaking projects that can be accomplished given 

limited time and resource availability. The nature of most military deployments places defined limits on both 

the duration of Rule of Law efforts along with the resources available for such efforts. The impact of these 

limitations must be considered when developing rule of law projects. Rule of Law practitioners must 

counter-balance time and resource restraints against working “by, with, and through”; even though there may 

be a host nation desire for a particular product, the Rule of Law practitioner must be able to assess whether 

he or she can provide the resources to assist in that project. This requires the practitioner to prioritize 

operations based on the current mission set and available resources. An effective TTP for prioritizing Rule 

of Law efforts based on internal limitations was the use of a two part assessment. 

111 Significant distrust existed between the police and courts within Diyala and neither was willing to extend an olive 

branch to the other. As a result, it was hoped the PJC would offer both parties neutral ground to come together to 

discuss their differences and develop solutions to problems facing the criminal justice process. 

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First, an honest assessment needs to be made of potential Rule of Law projects to understand how they fit 

within the host nation IDAD programs and objectives. This assessment must look at the threats and 

instability facing the host nation in light of the existing legal, organizational and cultural frameworks of the 

host nation along with the host nation’s IDAD programs and initiatives. From there, the Rule of Law 

practitioner can understand whether the proposed project is designed to improve the host nation processes 

and procedures, or whether it seeks to bring about a fundamental shift in how the host nation conducts 

business. This allows a better understanding of whether the assistance to the host nation going to be accepted 

and used and if the project will help legitimize to their existing processes. Understanding the scope of the 

project and how the project will impact the current system allows the Rule of Law practitioner to gauge the 

value of proposed project in light of its impact on the host nation Rule of Law objectives and goals. 

Second, the practitioner must examine the availability of resources to complete the Rule of Law project. 

This examination is a function of the nature of military deployments, which currently cover a finite period of 

time. Practitioners must consider what types of projects and initiatives can be implemented within that time 

frame. If the project appears to be a long-term project that exceeds the duration of the assignment, then the 

Rule of Law practitioner must address the question of who will be responsible for oversight when the 

initiating unit or organization departs theater and what resources will remain. Armed with these assessments, 

the Rule of Law practitioner will be able to understand what resources can be brought to the fight, and 

determine what Rule of Law projects may be successfully undertaken. 

These assessments are critical to understanding how best to apply limited resources towards improving host 

nation Rule of Law capabilities. Understanding potential pitfalls and resource limitations prior to starting a 

project will allow the Rule of Law practitioner to effectively plan and implement Rule of Law projects that 

will achieve the desired end state. In order to be effective, a Rule of Law project must not only fit within the 

host nation rule of law structures and organizations, it must also be sufficiently resourced to ensure the 

project is successfully completed. 

Planning 

“Plans are Nothing, Planning is Everything.” – Dwight D. Eisenhower 

Limited time and resources available to the Rule of Law practitioner requires thorough planning, both prior 

to deployment and in theater, in order to maximize outcomes. Many of the requirements of effectively 

planning a Rule of Law mission have been noted above and are laid out in the applicable field manuals.112 

However, the concept of planning, in and of itself, cannot be overlooked by the Rule of Law practitioner. 

The Military Decision Making Process113 should be familiar to the military Rule of Law practitioner; 

however, practitioners should keep in mind that not all of the players in Rule of Law operations are members 

of the military community. The joint nature of counter-insurgency and stability operations ensures that 

many, if not all, Rule of Law operations will be inter-agency missions that bring together military and 

civilian personnel. As a result, Rule of Law practitioners must ensure that adequate planning is occurring at 

all stages of Rule of Law missions and operations. 

While it may be a case of stating the obvious, a Rule of Law practitioner must “plan to plan” in order to 

ensure successful missions and operations. This requirement ranges from pre-deployment training and 

planning to the systematic planning at the tactical level, that which is required for successful KLEs,114 to the 

broad, strategic-level planning needed to assist with developing Rule of Law campaign plans. The 

112 FM 3-07, ch. 4; FM 3-24, app. A.
 113 DEP’T OF ARMY, FIELD MANUAL 5-0, THE OPERATIONS PROCESS (Mar. 2010) [hereinafter FM 5-0]. 114 Specifically, it should be understood what the agenda of the KLE will be, who will be in attendance, what questions 

will be asked, who is doing the talking and what point needs to be conveyed. Additionally, ensuring that an interpreter
 

with understanding of the subject matter of the conversation is present is also key as the Rule of Law practitioner is only
 

as effective as their translator when dealing with host nation partners who do not speak English. 

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considerations noted in the paragraphs and sections above are the means and methods to develop accurate 

information and assess inputs to the planning process that are critical to building successful operations. 

Further, proper planning helps ensure that limited resources available to the Rule of Law practitioner are 

targeted to effectively match resources against identified needs that will advance host nation Rule of Law 

capacity and legitimacy. Incorporating the correct data points and assessments into the planning process will 

ensure that the Rule of Law practitioner is able to effectively develop, implement and execute missions and 

operations in the joint environment that defines current counter-insurgency and stability operations. 

Conclusion 

Successful Rule of Law operations require the choreography of a major Broadway production to ensure that 

ideas, resources, and willpower are marshaled to achieve concrete end-states and objectives. As with any 

complex task, significant planning and analysis must occur prior to embarking on the road to task 

completion. When this is applied to deployed Rule of Law operations, the Rule of Law practitioner must 

ensure that operations and initiatives are properly nested within desired end-states of both their commanders 

and their host nation partners. Simply stated, the joint intra, and inter-agency along with host nation 

coordination needed to accomplish this task is daunting if the practitioner has not considered the essential 

components of successful Rule of Law efforts identified above: Unity of Effort; Relationships; working By, 

With and Through host nation partners; Change We Can Accomplish; and effective Planning. With these 

factors in mind, the Rule of Law practitioner should be well-armed to face and tackle the complexities of 

Rule of Law operations within counter-insurgency and stability operations in the coming New Dawn 

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APPENDIX A 

THE RULE OF LAW AND JUDGE ADVOCATES: A SHORT 

HISTORY1
 

Americans have long believed that a major reason for the longevity and vitality of the United States as a 

nation-state—and its success as a stable and prosperous democracy—is its foundation on the rule of law. 

This has meant that lawyers serving as Army Judge Advocates (JAs) with expeditionary U.S. forces, sharing 

this deep belief in the importance of the rule of law in American society, have looked for ways to enhance 

the rule of law elsewhere. Starting in the Philippines at the end of the 19th century, JAs began promoting the 

rule of law as a valuable component in a larger strategy to defeat an enemy and strengthen a friendly 

government. These rule of law efforts continued in Germany and Japan in the aftermath of World War II and 

in Vietnam in the 1960s and 1970s. Today, Army lawyers deployed in Afghanistan and Iraq are helping to 

run robust rule of law operations as part of overall counterinsurgency operations. 

This history essay begins by examining what is meant by the term “rule of law,” why it is the foundation of 

the United States, and why Army JAs have been receptive to it. It next looks at how Army lawyers serving 

in the Philippine Islands in the aftermath of the Spanish-American War of 1898 first attempted to implement 

American legal principles, including the rule of law, in the Philippines as part of pacification efforts. This 

essay then discusses how Army JAs serving forty-five years later in occupied Germany and Japan used the 

law to reform both German and Japanese society, and how they intentionally worked to graft the rule of law 

permanently onto German and Japanese institutions. Twenty years later, as this essay will show, Army 

lawyers in South Vietnam used the rule of law to enhance mission success in the larger fight against 

communist Viet Cong guerillas and their North Vietnamese allies. Finally, this essay looks at rule of law 

projects in Afghanistan and Iraq, which are part of an overall strategy to demonstrate to Afghan and Iraqi 

leaders that their societies will be better (politically, socially and economically) if they embrace the rule of 

law, since citizens who believe that their leaders adhere to the law will be loyal to them. At the same time, 

these rule of law projects seek to prove to the average Afghan and Iraqi citizen that the rule of law will 

safeguard their rights and property—while collaborating with insurgent forces will not. 

A final introductory note: While Army JAs have been involved in rule of law programs for over one hundred 

years, this is not to say that there has been an official, codified, written rule of law program in The Judge 

Advocate General’s Corps for this entire period. On the contrary, institutional recognition that the rule of 

law is part and parcel of JA doctrine is very recent and was not a part of the Army’s operational doctrine 

until December 2006, when it first appeared in Field Manual (FM) 3-24, Counterinsurgency. Nevertheless, 

America’s JAs have long been involved in designing, implementing, and participating in programs that seek 

to graft the rule of law onto the social organizations of other nations, and this is almost certain to continue. 

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

What is the “rule of law”? While there are many definitions, including those identified in this Handbook, the 

U.S. Government (USG) defines the idea in the following manner: Everyone must follow the law, leaders 

must obey the law; the Government must obey the law; and no one is above the law.2 Regardless of how the 

three-word phrase is defined, however, there is no question that the rule of law is the foundation of the 

1 Written by Mr. Fred L. Borch, the Regimental Historian & Archivist of The Judge Advocate General’s Corps. 2

 U.S. Citizenship and Immigration Serv., Civics (History and Government) Questions for the Naturalization Test, 

available at 

http://www.uscis.gov/USCIS/Office%20of%20Citizenship/Citizenship%20Resource%20Center%20Site/Publications/1 

00q.pdf (last visited July 12, 2011). 

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United States. A quick look at why this is true provides a context for explaining why JAs have conducted 

rule of law operations for more than a century. 

As the American Revolution got underway, lawyers in the colonies were among the most radical thinkers. 

Believing that the tyranny of the Parliament in London was just as bad as the tyranny of George III, “many 

American colonists put their faith in fundamental law enshrined in a constitution—as John Adams famously 

put it, ‘a government of laws and not men.’”3

 But Thomas Paine’s statement about the law in his pamphlet 

Common Sense best captures why the rule of law is the foundation of the United States. Wrote Paine: “[I]n 

America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law 

ought to be King.”4 

It follows that at the time of the Founding—and the drafting of the Constitution that resulted in the creation 

of the United States in 1787—Americans had a special relationship with the law. This relationship has 

continued, underscoring Alexander Hamilton’s observation more than 200 years ago that Americans had a 

“sacred respect for constitutional law,” which is just as true today, as U.S. citizens consistently look to 

courts—and the rule of law—as the best way to safeguard their rights and freedoms.5 

Whether the law is a “civil religion”6

 in secular America is an open question. But there is no doubt that 

Army officers serving in the late 19th century shared the view of their fellow Americans that the rule of law 

was at the root of America’s democratic tradition. This explains why historian Andrew Birtle writes in his 

authoritative U.S. Army Counterinsurgency and Contingency Operations Doctrine 1860-1941, that Army 

officers “had a deep faith in America’s political and economic system, a system that they generally believed 

the rest of the world would do well to emulate.”7

 When one remembers that Army officers of this period 

also believed in “respect for authority” and had “a fondness for efficiency and order, and a high regard for 

such public virtues as honesty, honor and self-sacrifice,”8

 this explains why the Army serving overseas—and 

its Judge Advocates—wanted to export American rule of law ideas and attitudes. 

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

The first JA involvement in establishing the rule of law occurred at the end of the 19th century, when the 

United States successfully invaded—and then occupied—Cuba, Puerto Rico, and the Philippine Islands 

during the Spanish-American War. After Spain sold the Philippines to the United States for $20 million, 

relinquished control of Cuba and Puerto Rico, and also ceded Guam to the United States, the American 

government suddenly discovered that it was responsible for governing more than ten million Cubans, Puerto 

Ricans, Filipinos, and Guamanians.9 

The Army initially established military governments in all of these former Spanish colonies, although it was 

expected that Congress and the President would replace Army governors with civilian officials as soon as 

3

 James Grant, Juristocracy, WILSON Q. (Spring 2010), at 16, 18.
 4

 Thomas Paine, COMMON SENSE (1776), 50. 5

 Grant, supra note 3, at 19. 6

 Civil religion “is essentially about those public rituals and myths that express for most Americans the nexus of the 

political order to the divine reality.” Derek H. Davis, “Competing Notions of Law in American Civil Religion,” 5 LAW,
 

TEXT, CULTURE 265 (2000). 7

 ANDREW J. BIRTLE, U.S. ARMY COUNTERINSURGENCY AND CONTINGENCY OPERATIONS DOCTRINE 1860-1941, at 101 

(1998). 

8 Id.
 9 Id. at 99. From the outset, lawyers, scholars, and politicians argued about the legal principles by which the United
 

States would rule these new territories. Ultimately, the “doctrine of incorporation” became the politico-legal framework 

for America’s new colonial empire. Id. This meant the Philippines, Puerto Rico, and Cuba would be “unincorporated
 

territories” that were “under the sovereignty of the United States but outside its body politic.” Id. But until the Congress 

passed legislation reflecting this doctrine of incorporation, these new territories were under Army rule. PAUL A.
 

KRAMER, THE BLOOD OF GOVERNMENT: RACE, EMPIRE, THE UNITED STATES AND THE PHILIPPINES 163 (2006). 

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possible. In Puerto Rico, Soldiers served as administrators until 1900, and Army officers governed the 

Philippine Islands until 1902. Military government remained in place in Cuba until 1902 but, even after that 

time, Army officers were involved in establishing—and running—new government institutions in Cuba for 

many years. 

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

Philippines,10 and Judge Advocates were no exception. From the beginning, these uniformed lawyers were 

convinced that these ex-colonial possessions would best be served if their existing Spanish-based legal 

systems were jettisoned in favor of American-style government. These views were hardly unique. On the 

contrary, they reflected the prevailing opinion, as expressed by President William McKinley, that the United 

States was obligated not only to liberate the former Spanish colonials, but also must guide them toward a 

prosperous, self-governing, democratic society. 

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

best be served if they had an American form of government that included an Anglo-American judicial 

framework. This explains why, from the outset, Judge Advocates were heavily involved in efforts to 

establish new legal institutions. In the Philippines, for example, the American occupation forces were 

convinced that the existing Spanish colonial legal system was corrupt. There “was a well-founded belief that 

lawsuits were won through influence or bribery” and this “wretched system” needed to be reformed.11 

One of the first projects in the reform of the existing legal system was the “reestablishment” of a Philippine 

Supreme Court. While some of the members of the court (including the chief justice) were Filipino jurists, 

military governor Major General (MG) Elwell S. Otis also appointed an Army lawyer, then Lieutenant 

Colonel (LTC) Enoch H. Crowder to the new court. On 29 May 1899, Crowder (who would later serve as 

The Judge Advocate General (TJAG) for the Army from 1911 to 1921) was made an “associate justice” and 

appointed to the civil division of the Philippine Supreme Court. Crowder’s appointment made sense, as he 

had drafted the document that reestablished the court. While serving as an associate justice, Crowder used 

his skills as an Army lawyer to overhaul the Philippine criminal justice system. He “made an exhaustive 

study of Spanish criminal laws recently in force in the Philippines” and then drafted a new Code of Criminal 

Procedure. This new Code was promulgated by MG Otis as General Orders No. 58 and took effect on 15 

May 1900.12 

But the Army also looked for ways to impress upon Filipinos that Americans believed in the rule of law. In 

this regard, MG Otis, by virtue of his authority as military governor, created a Board of Claims to hear civil 

complaints against the United States. Crowder, who was the president of the board, heard evidence in suits 

filed by Filipino citizens for money damages arising out of the loss of horse, livestock and other supplies, 

and the destruction of homes and other buildings. Crowder and three other Army officers heard suits without 

a jury and then made findings and recommendations to MG Otis. While the United States refused to pay for 

damages incurred incident to combat, it did pay a large number of claims—illustrating that the Americans 

believed in the rule of law and were committed to fair and equitable treatment. 

According to James H. Blount, who served first as an Army officer and later as a district judge in the 

Philippines, Crowder “was the brains of the Otis government”13 and Crowder continued his good works in 

Cuba, where Judge Advocates also busied themselves in establishing new legal institutions. Then Colonel 

(COL) Crowder, fresh from his experiences in Manila, was the chief legal advisor to the American-sponsored 

Provisional Government of Cuba. Although Cuba was granted formal independence in 1902, Army lawyers 

continued to be involved in its legal affairs. Crowder, for example, was Supervisor of its State and Justice 

10 BIRTLE, supra note 6, at 100.
 11 DAVID A. LOCKMILLER, ENOCH H. CROWDER: SOLDIER, LAWYER AND STATESMAN 77 (1955). 12 Id. at 76. 13 Id. at 75. 

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Departments from 1906 to 1909. At the same time, Crowder headed the Cuban Advisory Law Commission 

and Central Election Board.14 

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

1902), bloody resistance to American rule in the Philippines meant that the U.S. Army—and Judge 

Advocates—had an active role in reshaping Philippine institutions for a longer period. It was not until 1913 

that President Woodrow Wilson began the process that would gradually lead to independence. 

Consequently, the grafting of American jurisprudence onto Filipino society continued for many years, as did 

JA involvement. 

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

The next Army JA involvement in rule of law efforts came in the aftermath of World War II, when American 

policy makers decided that Germany and Japan must be re-made if future conflict with them was to be 

avoided. 

In Japan, a team of lawyers on General of the Army Douglas MacArthur’s staff participated in drafting a new 

constitution for Japan—one that “established the principle of popular sovereignty for the first time, 

guaranteed a more extensive range of human rights than even the U.S. Constitution, and set antimilitarist 

ideals at the very center of the national charter.”15 More than anything else, however, the new Japanese 

constitution enshrined American ideas about the rule of law as the basis for a democratic form of 

government. 

While no judge advocates worked on the committee that drafted this unique legal document, the presence of 

MG Myron C. Cramer, the recently retired Army Judge Advocate General, as the lone American judge on 

the International Military Tribunal of the Far East proves that Army lawyers were critical to the grafting of 

rule of law principles onto Japanese society. After all, a chief purpose of the Tokyo War Crimes Trial (as the 

tribunal was also called) was to “uphold democratic ideals and humanitarian principles as the foundation of 

international law.”16 

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

courts. Shortly after General of the Army Dwight D. Eisenhower arrived in Germany, he ordered the 

publication of Proclamation No. 1. This document provided that all German courts in occupied territories 

were suspended.17 Ordinance No. 2, promulgated at the same time as Proclamation No. 1, established 

Military Government courts “for the trial of offenses against the interests of the Allied Forces.” These courts 

had jurisdiction over all offenses committed in the United States Zone against the legislation enacted by the 

Allies or existing German law. By 1946, these courts had tried more than 220,000 cases ranging from 

murder, theft, possession of a deadly weapon to false statements, curfew violations, and failure to have a 

valid identification card.18 

These occupation courts existed to do justice, but judge advocates recognized at the time that these courts 

furthered the development of the rule of law in Germany. In 1949, Eli E. Nobleman, an Army Reserve Judge 

Advocate who served as Chief of the German Courts Branch of the Office of Military Government for 

Bavaria, wrote that over 350,000 cases had been tried by U.S. Military Government Courts in Germany. 

Nobleman noted that, while the Military Government Courts had delivered justice, they also had “... gone a 

14 JUDGE ADVOCATE GENERAL’S CORPS, U.S. ARMY. THE ARMY LAWYER 1775-1975, at 105 (1975). 15 JOHN W. DOWER, EMBRACING DEFEAT: JAPAN IN THE WAKE OF WORLD WAR II, at 244 (1999).
 16 YUMA TOTANI, THE TOKYO WAR CRIMES TRIALS: THE PURSUIT OF JUSTICE IN THE WAKE OF WORLD WAR II, at 259 

(2008). For more on Crowder, see Fred L. Borch, Sitting in Judgment, PROLOGUE (Summer 2009), 34-41.
 17 Military Government—Germany, Supreme Commander’s Area of Control, Proclamation No. 1, Military Government
 

Regulation 23-200 (1945).

18 Eli E. Nobleman, Military Government Courts: Law and Justice in the American Zone of Germany, 33 A. B. A. 777,
 

778 (1947).
 

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long way to toward teaching the democracy and the democratic system to the German people. All of the 

democratic safeguards mean absolutely nothing in the absence of impartial courts to protect fundamental 

rights. It has been correctly stated that the true administration of justice is the firmest foundation of good 

government.”19 

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

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

George S. Prugh was the Staff Judge Advocate for Military Assistance Command, Vietnam (MACV). 

Shortly after arriving in Saigon, Prugh wrote a report in which he stressed that, as “there cannot be a 

successful counterinsurgency program until there is established a respect for law and order,”20 Judge 

Advocates must look for ways to use the law to enhance mission success. As Prugh observed, 

[The] law could have a special role in Vietnam because of the unusual circumstances of the war, which 

was a combination of internal and external war, of insurgency and nation-building, and of development 

of indigenous legal institutions and rapid disintegration of the remnants of the colonial French legal 

establishment.21 

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

the value of law in society—all of which were continued by those Judge Advocates who followed him at 

MACV. First, Prugh organized a Law Society that sponsored lectures and talks on different aspects of U.S. 

jurisprudence. These were attended by Vietnamese lawyers and government officials, and provided a forum 

for discussing the role of law in a democratic society. This was an important initiative, as the South 

Vietnamese were “building their own rule of law, creating a bench and bar, and establishing a civil service 

where none had existed before.”22 

Second, Prugh formally established an “advisory” program and tasked the Army, Navy, Air Force, and 

Marine Corps Judge Advocates assigned to MACV to advise their South Vietnamese Army (ARVN) lawyer 

counterparts. The focus of these American lawyers was on creating, strengthening and re-organizing military 

and military-related governmental institutions. For example, judge advocates helped to reorganize the 

Vietnamese military prison system. They also gave advice to their Vietnamese counterparts on prisoners of 

war and war crimes. Finally, convinced that Vietnamese military institutions would be improved if they 

were injected with American ideas and attitudes on law and justice, Judge Advocates presented papers, held 

seminars, and taught courses at Saigon University. Vietnamese military lawyers also attended the Judge 

Advocate Officer Basic and Graduate Courses at The Judge Advocate General’s School (TJAGSA).23 

Starting in 1967, TJAGSA also held a one-week long “Law in Vietnam” course. Most of the instruction was 

given “by guest speakers recently returned from South Vietnam with firsthand knowledge of the country and 

the problems involved.”24 

In the end, MACV Judge Advocates not only cultivated valuable friendships, but also assisted ARVN judge 

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

activities of the Viet Cong. Perhaps most importantly, the rule of law efforts spearheaded by Prugh (who 

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

19 Eli E. Nobleman, Civilian Military Government Courts in Germany, JUDGE ADVOCATE J. (June 1949), 37. 20 GEORGE S. PRUGH, LAW AT WAR 13 (1975). 21 Id. at v.
 22 JUDGE ADVOCATE GEN’S CORPS, supra note 13, at 222. 23 Id. For example, Second Lieutenant Nguyen Dinh Hung and First Lieutenant Lt. Nguyen Tri Tu attended the 60th
 

Basic Course in 1971. THE JUDGE ADVOCATE GENERAL’S CORPS, U.S. DEP’T OF ARMY, ANNUAL REPORT, TJAGSA
 

app. VIII, at 83 (1970-1971). 

24 THE JUDGE ADVOCATE GENERAL’S CORPS, U.S. DEP’T OF ARMY, COMMANDANT’S ANNUAL REPORT, TJAGSA 20 

(1967-68). 

289 Appendix A 

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Rule of Law Handbook - 2011 

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

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

While the withdrawal of U.S. forces in 1973 and the collapse of the South Vietnamese government in 1975 

means that nothing remains of these JA rule of law efforts, there is no doubt that uniformed lawyers 

considered their work in the area to be part of defeating the Viet Cong and their North Vietnamese allies. 

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

After the deployment of U.S. military personnel to Afghanistan in 2001 and Iraq in 2003, Army Judge 

Advocates began looking for ways to use the law to enhance mission success in both geographic locations. 

Rule of law projects became increasingly important after stability operations were underway and an 

insurgency had emerged in both Afghanistan and Iraq. 

The central weakness of any insurgency is not its military capabilities but its reliance on the local populace 

for legitimacy, recruits, financing, sanctuary, intelligence and other material support.25 Consequently, Judge 

Advocates understood that rule of law projects demonstrating that the central government followed the law 

and was fair and just in its dealings with all citizens would promote loyalty to that central government— 

thereby weakening the guerrillas. 

At first, such efforts were very much ad hoc—largely dependent on the interest of the individual Army 

lawyers and legal offices in reaching out to their Afghan and Iraqi counterparts. These early rule of law 

missions “followed no set format or guidelines ... these pioneering Judge Advocates literally made it up as 

they went forward.”26 In April 2003, for example, then LTC Craig Trebilcock was in southern Iraq and 

serving as the International Law Officer in the 358th Civil Affairs Brigade. As U.S. forces transitioned from 

combat operations to occupation and reconstruction, Trebilcock convinced his commander that the rule of 

law was “an integral component of reestablishing security in an occupied territory.”27 Projects subsequently 

undertaken included: obtaining money for court-house reconstruction; replacing legal books and other 

library resources that had been stolen by looters or destroyed by vandals; obtaining general funding for the 

operation of courthouses; and devising methods to remove and replace Baathist party judges and select new 

judges.28 

The experiences of COL Bruce Pagel, an Army Reservist serving in north central Iraq, were similar. Pagel, 

who had extensive criminal experience as an Assistant U.S. Attorney, served as the rule of law officer in the 

1st Infantry Division from May 2004 to February 2005. Pagel and his fellow JAs built on rule of law efforts 

started by the 4th Infantry Division, which had previously operated in their geographic area. Their principal 

goal “was to clearly identify the most persistent obstacles to restoring rule of law and improving judicial 

output.”29 In furtherance of this goal, JAs visited Iraqi courthouses, identified needs (e.g., security, 

equipment) and worked to establish both credibility and a working relationship with the local Iraqi legal 

community, including judges and police officers. 

While the experiences of Trebilcock and Pagel were the norm from 2003 through 2006, that changed with 

the emergence of a new Army counterinsurgency (COIN) doctrine, announced with the publication of FM 3­

24 Counterinsurgency in December 2006. For the first time, Army COIN doctrine formally embraced rule of 

law projects. As Appendix D, “Legal Considerations,” puts it, “establishing rule of law is a key goal and end 

state in COIN.”30 While recognizing that achieving this end state “is usually the province of H[ost] N[ation] 

25 Bart Schuurman, Clausewitz and the “New Wars” Scholars, PARAMETERS (Spring 2010), at 98. 26 CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CTR. & SCH., U.S. ARMY,
 

RULE OF LAW HANDBOOK 163 (2007) [hereinafter ROL HANDBOOK]. 27 Id. at 164. 28 Id. at 171, n. 24. 

29 Id. at 189. 30 U.S. DEP’T OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY, at D-8 (15 Dec. 2006). 

Appendix A 290 

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Rule of Law Handbook - 2011 

authorities, international and intergovernmental organizations, the Department of State (DOS), and other 

U.S. Government agencies,” Appendix D also stresses that “support from U.S. forces in some cases” also is 

required.31 

Even before the appearance of FM 3-24 in December 2006, JAs serving at the Center for Law and Military 

Operations (CLAMO) recognized that these ad hoc rule of law projects—regardless of their success—must 

be replaced with a more formal and uniform program. They began authoring a “practitioner’s guide” in late 

2006, with much of the writing being done by Coast Guard Lieutenant Vasilios Tasikas and Army Reserve 

Captain Thomas Nachbar. Their guide, published in July 2007 as the Rule of Law Handbook, recognized 

that Judge Advocates deployed as part of Operations Enduring and Iraqi Freedom would continue to use their 

legal skills and talents “to bring stability and rule of law support to the embryonic and fragile democratic 

governments in both Afghanistan and Iraq.”32 It follows that the intent of the Handbook was to provide 

Army lawyers conducting rule of law activities as part of stability operations with an “educational resource” 

that would provide practical tips and guidance in the area. The Handbook has been updated and republished 

since. 

Since the initial publication of the Handbook in 2007, rule of law projects have continued in Afghanistan and 

Iraq. At the strategic level, senior Army JAs have been appointed as Rule of Law Coordinators at the U.S. 

Embassies in both countries.33 Additionally, while ad hoc Rule of Law missions continue at the Brigade 

Combat Team (BCT) level, there have also been separate major commands established to oversee Rule of 

Law missions, generally in the area of establishing security forces and prison operations. 

In Iraq, for example, the Multi-National Security Transition Command-Iraq (MNSTC-I) was created to 

oversee the establishment and training of Iraqi Security Forces, including both Army and police forces.34 A 

similar organization was established in Afghanistan, the Combined Security Transition CommandAfghanistan (CSTC-A). Each organization has a commander and a senior Army Judge Advocate serving as 

the SJA for the command. 

The commitment of commanders to on-going Rule of Law operations is best illustrated by the activities of 

the Law and Order Task Force (LAOTF) created to work with Iraqi judges at the Central Criminal Court Iraq 

located in the Rusafa district on the east side of Baghdad (CCCI-Rusafa).35 While LAOTF had been 

established in 2006, a major innovation in its operations occurred in November 2008, when Army and Air 

Force JAs at LAOTF and the Iraqi judges at CCCI-Rusafa created the Joint Investigative Committee (JIC). 

The intent of the JIC was to work through the issues that both U.S. and Iraqi lawyers realized would result 

from the implementation of the U.S-Iraq Security Agreement (effective 1 January 2009). Since this 

agreement, in recognition of Iraqi sovereignty, prohibited coalition forces from detaining anyone without a 

warrant issued from an Iraqi judge, it was critical to put in place procedure that would comply with this new 

legal regime. Now in its third year of operation, the JIC consists of American JAs, Iraqi investigators and 

Iraqi investigative judges. All work in concert to obtain warrants for coalition targets, issue detention orders, 

and move the cases through the Iraqi criminal justice process. The JIC has been a major Rule of Law success 

because it focuses on strengthening the Iraqi criminal justice process by, with, and through Iraqi personnel.36 

Another good example of the commitment of commanders to Rule of Law operations is the Rule of Law 

Field Force-Afghanistan (ROLFF-A), which was established in 2010 and is commanded by a Judge 

31 Id. 32 ROL HANDBOOK, supra note 26, at i.
 33 In Afghanistan, for example, LTC Dean Vlahopoulos served as the Rule of Law Coordinator from 2008-2009; COL 

Fred Taylor from 2009-2010; LTC Paula Schasberger is the current coordinator.

34 MNSTC-I is now closed and its functions fall under USF-I. 

35 CCCI-R was different from CCCI-Karkh, which was located on the west side of the Tigris River in the Green Zone. 

Judges at CCCI-Karkh tried cases of detainees housed in the coalition operated Cropper detention facility. 36 The first Officer in Charge (OIC) for the JIC was LTC Jeff Bovarnick (2008-2009). He was followed by MAJ Sean
 

Mangan (2009-2010) and MAJ Philip Staten (2010-2011). 

291 Appendix A 

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Rule of Law Handbook - 2011 

Advocate brigadier general. The ROLFF-A focuses exclusively on establishing, securing, and assisting the 

Afghans in implementing their own criminal justice system. The ROLFF-A, which is referred to in more 

detail in Chapter 7, is a combined, joint, interagency task force that has established Justice Centers around 

Afghanistan. It also oversees Rule of Law efforts being conducted by subordinate commands, such as at 

Combined Joint Task Force (CJTF) 82.37 

At CJTF-82, four JAs at the Office of the Staff Judge Advocate work with their Afghan counterparts in the 

prosecution of “security criminals.” The “Rule of Law objective was ... to develop a system for successfully 

prosecuting insurgents, removing them from the battlefield.” This objective was based on the premise that 

an incarcerated insurgent cannot manufacture improvised explosive devices, bribe public officials, or 

undermine the legitimacy of the government. Working as an “Afghan Prosecutions Team,” these Army 

lawyers train others “to focus on evidence collection and development, local and provincial prosecution and 

case tracking, and strategic level corruption.”38 Judge advocates also “partner” with National Directorate of 

Security personnel (Afghanistan’s Federal Bureau of Investigation equivalent) to better “detect, investigate 

and prosecute insurgents on multiple fronts simultaneously.”39 These efforts—and similar rule of law 

projects in Iraq—continue today. 

With this history as background, it is clear that JA involvement in rule of law operations is nothing new. If 

anything, the only new development is a formal, institutional recognition that rule of law operations are an 

integral part of JA doctrine in military operations—and that written guidance on how to establish and 

implement a rule of law program is a necessary aspect of what has been part of the JA mission for over a 

century. 

37 BG Mark S. Martins, the ROLFF-A commander, had previously been the Deputy Commander of Joint Force (JTF)
 

435 (later Combined Joint Interagency Task Force (CJIATF 435). This unit, created by Secretary of Defense Robert 

Gates in September 2009, had the mission, in part, “to ensure [that] U.S. detainee operations in Afghanistan [were]
 

aligned effectively with Afghan criminal justice efforts to support the overall strategy of defeating the Taliban
 

insurgents.” Given BG Martins work with CJIATF 435, it was logical for him to take command of ROLFF-A when it 

was created in 2010. Jeff A. Bovarnick, “Detainee Review Boards in Afghanistan: From Strategic Liability to
 

Legitimacy,” ARMY LAWYER (June 2010), 9, 25-26.
 38 Combined Joint Task Force-82 [hereinafter CJTF-82], Information Paper, From the Battlefield to the Courtroom: 

Prosecuting Insurgents in Afghanistan, at 1, n.d. (June 2010). 

39 Id. at 8.
 

Appendix A 292 

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293 Appendix B 

 Rule of Law Training 

APPENDIX B 

RULE OF LAW TRAINING 

This appendix provides information about Rule of Law (ROL) training courses and programs. Table 1 contains a list of short courses for ROL practitioners, including military personnel or civilians who practice in the area of ROL. Table 2 contains a list of ROL outreach programs that provide training for legal 

personnel and foreign officials from host nations within which ROL operations are being delivered. It is not a comprehensive list of all the training opportunities and programs available, but is intended to provide insight into the diversity of educational opportunities and training providers that exist. These program providers are not sponsored or endorsed by the Editor or Authors of this Handbook, nor is every program offered by these institutions listed. For further information about any program, follow the URL to obtain detailed information including program availability and cost. 

Table 1: Courses suitable for USG [and coalition] ROL Practitioners 

Agency/Organization Course Title URL for More Information Course Location Frequency/Length 

U.S. Army, TJAGLCS Rule of Law https://www.jagcnet.army.mil/8525736A005BC8 

F9/0/84843E08984787C18525735500653845?op endocument&noly=1 

Charlottesville, VA Annual/4.5 days 

Dep’t of State Foreign Service Institute 

Interagency Integrated Civilian-Military Training Exercise for Afghanistan 

http://www.ccoportal.org/course/interagencyintegrated-civilian-military-training-exerciseafghanistan Butlerville, IN Several times a year/6 days 

Dep’t of State Foreign Service Institute 

Various http://fsitraining.state.gov Washington, DC Depends on 

course/varies from 1 day to 2 weeks 

Univ. of South Carolina Walker Institute of International and Area Studies 

Rule of Law Collaborative Interagency Training 

http://www.cas.sc.edu/lis/ROLC/ROLCHome1.ht ml 

Washington, D.C. or Columbia, S.C. 

Periodically/various 

United Nations Dep’t for Peacekeeping Operations (UNDPKO) 

Rule of Law Training Programme for Judicial Affairs Officers 

http://unrol.org/article.aspx?article_id=135 Various locations around 

world 

2x a year/6 days 

United States Institute of Peace1 Academy for 

Rule of Law Practitioners Course 

http://www.usip.org/educationtraining/courses/rule-law-practioners-course Washington, DC Several times a year/5 days 

1 For more information on USIP, see ch. 2, sec. II, subsec. E supra. 
 

 

Rule of Law Handbook - 2011 

Agency/Organization Course Title URL for More Information Course Location Frequency/Length International Conflict Management and Peacebuilding 

(for a list of other USIP courses in relevant areas of law: http://www.usip.org/educationtraining/courses-simulations) 

Center for Security Sector Management at Cranfield Univ. 

Managing Public Security and the Rule of Law 

http://www.cranfield.ac.uk/cds/shortcourses/man agingpublicsecurityandtheruleoflaw.html 

Shrivenham, Swindon, UK Annual/ 4 days 

International Law Institute 

Various http://www.ili.org/training.html Washington, DC Depends on 

course/varies from 4 to 18 days 

Center for International Peace Operations (ZIF) 

Rule of Law in Peace Operations 

http://www.zif-berlin.org/en/training/trainingcourses/specialisation-courses/rule-of-law.htm Sando, Sweden or Berlin, Germany Annual/13 days 

Folke Bernadotte Academy 

Rule of Law Course http://www.folkebernadotteacademy.se/en/Traini 

ng/Courses1/Rule-of-Law-Course 

Berlin, Germany Annual/12 days 

International Human Rights Network 

Justice Sector Reform: Applying Human Rights Approaches 

http://www.ihrnetwork.org/justice-sectorreform_202.htm Maynooth, Ireland Annual/5 days 

NATO School Various 

(note: NATO School does not have any RoLspecific classes but offers a number of legal and planning courses that may be relevant) 

https://www.natoschool.nato.int/academics.asp Oberammergau, Germany Depends on course/4-7 

days 

George C. Marshall European Center for Security Studies 

Program for Security, Stability, Transition and Reconstruction (SSTaR) 

www.marshallcenter.org/mcpublicweb/en/navcollege/nav-academics-resident-courses/nav-colsstar.html Garmisch-Partenkirchen, Germany 2x a year/3 weeks 

Univ. of Birmingham HMG Security and 

Justice Training Course 

http://www.idd.bham.ac.uk/events/securityjustice.shtml Birmingham, UK 4x a year/3.5 days 

294 Appendix B 

 Rule of Law Training 
 

 

Rule of Law Handbook - 2011 

Table 2: Outreach programs providing Training and Development opportunities for Host Nations 

295 AppendixB 

 Rule of Law Training 

Agency Program Title URL for more information Overview 

Defense Institute of International Legal Studies2 

Rule of Law and Disciplined Military Operations Course 

http://www.diils.org/rule-of-law-anddisciplined-military-operations-courseoffered-at-various-u-s-military-schools A one-week course available at various U.S. Military Schools. DIILS provides legal education, training, and rule of law programs for international military and related civilians. 

Dep’t of State (INL) 

Afghanistan Justice Sector Support Program3 

http://www.jssp-afghanistan.com Through capacity building, technical advice, and direct assistance, JSSP 

helps justice institutions and justice professionals perform their roles in delivering fair and effective justice services to the citizens of 

Afghanistan. 

Dep’t of State (INL) 

Iraq Justice Development Program 

http://www.state.gov/p/inl/rls/fs/150854.htm In partnership with other USG agencies including U.S. Marshals service 

and the DOJ, INL funds and oversees a wide range of ROL programs within seven functional areas: judicial security, justice integration, judicial professional development, public integrity/anti-corruption, judicial capacity development, legislative assistance and judicial 

outreach. 

Dep’t of Justice Overseas 

Prosecutorial Development Assistance and Training4 

http://www.justice.gov/criminal/opdat/ Mission is to help prosecutors and judicial personnel in other countries 

develop and sustain effective criminal justice institutions. 

United Nations5 Global Programme 

on Strengthening the Rule of Law in Conflict and PostConflict Situations 

http://www.undp.org/cpr/documents/UNDP %20Rule%20of%20Law_web_FINAL_PRI NT.pdf 

Offers comprehensive operational, technical and financial support to host countries to build capacities to implement comprehensive rule of law, justice and security programs. 

European Union/United 

Iraq – Support to the Rule of Law and 

http://www.unrol.org/article.aspx?article_id =155 

A program in collaboration with the Iraqi government to improve the efficiency of the Iraqi justice system and strengthen the capacity of 

2 For more information on DIILS, see supra Chapter 2, Section II, Subsection D, Part 4. 3 See supra Chapter 2, Section II, Subsection A, Part 1 for a discussion on the programs and operations of INL. 4 For more information on DOJ OPDAT, see Chapter 2, Section II, Subsection C, Part 3. 5 The UN has over 40 entities engaged in ROL activities all around the world. The programs listed on this table are merely examples of the many UN ROL 

programs. For more information on UN ROL activities, visit the website: http://www.unrol.org/ (last visited July 27, 2011). In addition, see Second Annual Report on strengthening and coordinating United Nations rule of law activities: Report of the Secretary-General, A/65/318, at 

http://www.unrol.org/doc.aspx?d=2994 (last visited July 27, 2011). 
 

 

Rule of Law Handbook - 2011 

296 Appendix B 

 Rule of Law Training 

Agency Program Title URL for more information Overview 

Nations Development Programme 

Justice government ROL institutions. 

United Nations Programme on 

Governance in the Arab Region 

http://www.undppogar.org/governance/ruleoflaw.aspx Assists governments in achieving a sufficient level of human development through good governance and protection of human rights. 

United Nations Office for Project Services 

Justice and Security Sector Reform 

http://www.unops.org/english/whatwedo/foc us-areas/public-order-security/Pages/publicorder-security.aspx 

Provides support services in administration and project management in post-conflict areas to reduce risk and improve speed, quality or costeffectiveness to allow partners to focus on their policy objectives. 

USAID Rule of Law 

Stabilization – Formal Program6 

http://afghanistan.usaid.gov/en/USAID/Acti vity/182/Rule_of_Law_Stabilization_Progra m_Formal_Component 

This program develops the human and institutional capacity of the justice sector, increases access to justice (particularly for women), and increases public demand for ROL. 

USAID Rule of Law 

Stabilization Program – Informal Component 

http://afghanistan.usaid.gov/en/USAID/Acti vity/163/Rule_of_Law_Stabilization_Progra m_Informal_Component 

This program helps re-establish traditional dispute-resolution councils (shuras) in areas recently stabilized while familiarizing them with Afghan national law. 

Univ. of South Carolina Walker Institute of International and Area Studies 

Rule of Law Collaborative 

http://www.cas.sc.edu/Iis/ROLC/ROLCHo me1.html 

Provides programs, research and training to develop Rule of Law as a discipline, intended especially for Foreign Area Officers (but can provide for anyone working in a ROL related field). Short courses, conferences, and lectures are offered periodically, typically within the U.S. 

American Bar Association 

Rule of Law Initiative / Legal Profession Reform 

http://apps.americanbar.org/rol/programs/leg al-profession.html 

By providing technical assistance with trial advocacy skills, law practice management and substantive areas of law, ABA ROLI enhances the professionalism and expertise of lawyers in host countries. 

The World Justice Project 

Opportunity Fund http://www.worldjusticeproject.org/opportun 

ity-fund 

This program provides seed grants to establish further multidisciplinary ROL initiatives around the world. 

The World Bank7 

State and PeaceBuilding Fund http://web.worldbank.org/WBSITE/EXTER NAL/STRATEGIES/EXTLICUS/0,,content Establishes programs that address the needs of state and local governance in fragile, conflict-prone and conflict-affected situations, 

6 USAID is heavily involved in many programs in addition to ROL in many countries. Listed here are just two ROL-specific programs in Afghanistan. For an 

in-depth discussion of USAID and its global mission, see supra ch. 2, sec. II, subsec. B. 7 For more information on World Bank involvement, see supra Chapter 2, Section III, Subsection C.
 

 

Rule of Law Handbook - 2011 

Agency Program Title URL for more information Overview 

MDK:21836102~pagePK:6417531~piPK:64 171507~theSitePK:511778,00.html 

including ROL programs. 

The Arab Center for the Development of the Rule of Law and Integrity 

Various ongoing projects 

http://www.arabruleoflaw.org As a non-governmental, non-profit organization with headquarters 

located in Beirut, ACRLI works with other regional and international organizations to develop and reinforce ROL, integrity and good governance in the Arab countries. 

297 Appendix B 

 Rule of Law Training 

Rule of Law Handbook - 2011

APPENDIX C 

ACRONYMS 

AAA Afghan Attorney Advisor 

AAR After Action Report 

ACC U.S. Army Capstone Concept 

ACO North Atlantic Treaty Organization, Allied Command Operations 

ADA Antideficiency Act 

ADCC Afghan Detention and Corrections Cell 

ADR Alternative Dispute Resolution 

AFOSI Air Force Office of Special Investigations 

AFR Africa 

AGA Agricultural Advisor (U.S. Embassy) 

A&T Advising and Training 

ANA Afghan National Army 

ANDF Afghan National Detention Facility 

ANDS Afghan National Development Strategy 

ANE Asia and the Near East 

ANP Afghan National Police 

ANSF Afghan National Security Forces 

AO Area of Operations 

AOB Advanced Operating Base 

ARTF Afghanistan Reconstruction Trust Fund 

ASD SO/LIC Assistant Secretary for Defense for Special Operations and Low Intensity Conflicts 

ASFF Afghan Security Forces Fund 

ASOP Afghanistan Social Outreach Program 

ATF U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives 

AUP Afghan Uniformed Police 

AWG Asymmetric Warfare Group, U.S. Army 

BBA Bilingual Bicultural Adviser 

BCT Brigade Combat Team 

BIAP Baghdad International Airport 

BJA Brigade Judge Advocate 

BTIF Bagram Theater Internment Facility 

CA Civil Affairs 

CAAT Counterinsurgency Advisory and Assistance Team 

CAST	 The Fund for Peace Conflict Assessment System Tool 

CAOCL	 U.S. Marine Corps, Center for Irregular Warfare / Center for Advanced Operational 

Culture Learning 

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment or Civil Affairs Team 

Central Criminal Court of Iraq 

CCCI-K Central Criminal Court of Iraq-Karkh 

CCIR Commander’s Critical Information Requirements 

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women 

299 Appendix C 

Acronyms 

CCCI 
Rule of Law Handbook - 2011 

CENTCOM	 U.S. Central Command 

CERD Convention on the Elimination of All Forms of Racial Discrimination 

CEXC Combined Explosives Exploitation Cell 

CJCS	 Chairman of the Joint Chiefs of Staff 

CICA Competition in Contracting Act 

CID Criminal Investigation Division (U.S. Army) and/or Criminal Investigative 

Directorate (Iraq) 

CIDA Canadian International Development Agency 

CIL Customary international law 

CIV-MIL civilian-military 

CIVPOL	 UN Civilian Police 

CIZA	 Competent Iraqi Authority (IZ is an acronym used to indicate “Iraq”) 

CJ Chief Judge (Iraq) 

CJIATF	 Combined Joint Interagency Task Force 

CJSOTF-AP	 Combined Joint Special Operations Task Force – Arabian Peninsula 

CJTF Criminal Justice Task Force (Afghanistan) and/or Counter-Narcotics Justice Task 

Force (Afghanistan) 

CLAMO Center for Law and Military Operations, The Judge Advocate General’s Legal 

Center and School 

CMO Civil-Military Operations 

CMOC Civil-Military Operations Center 

CNJC Counter Narcotics Justice Center (Afghanistan) 

CNP-A Counternarcotics Police - Afghanistan 

CNT Central Narcotics Tribunal (Afghanistan) 

COIN Counterinsurgency 

CoK Charge of the Knights (Iraq) 

COTR	 Contracting Officer’s Technical Representative 

CPA Coalition Provisional Authority (Iraq) 

CPATT	 U.S. Central Command, Civilian Police Assistance Training Teams (Iraq) 

CRC U.S. Department of State, Office of the Coordinator for Reconstruction and 

Stabilization, Civilian Response Corps 

CRPD Convention on the Rights of Persons with Disabilities 

CSDP European Union, Common Security and Defense Policy 

CSTs Crime Scene Technicians 

CSOs Civil society organizations / U.S. Department of State Bureau for Conflict and 

Stabilization Operations 

CSTC-A	 Combined Security Transition Command - Afghanistan 

DATT	 U.S. Embassy, Defense Attaché 

DCHA	 U.S. Agency for International Development, Bureau for Democracy, Conflict and 

Humanitarian Affairs 

DCM U.S. Embassy, Deputy Chief of Mission 

DDR Disarmament Demobilization and Reintegration 

DEA U.S. Department of Justice, Drug Enforcement Administration 

DETs Detachments 

DFID U.K. Departement for International Development 

DFIP Detention Facility in Parwan 

DG	 Democracy and Governance 

DHS	 U.S. Department of Homeland Security 

DIILS Defense Institute of International Legal Studies 

Appendix C 300 

Acronyms 
 

 

Rule of Law Handbook - 2011

DLI Iraq, Defense Language Institute 

DO	 Development Officer (USAID representative at U.S. Embassy) and/or Detention 

Order (Iraq) 

DOD	 U.S. Department of Defense 

DODAA U.S. Department of Defense Appropriations Act 

DODD	 U.S. Department of Defense Directive 

DODI	 U.S. Department of Defense Instruction 

DOJ	 U.S. Department of Justice 

DOMEX Document Media Exploitation 

DOS1	 U.S. Department of State 

DPG World Bank, Development Policy Grant 

DRB Detainee Review Board 

DRL U.S. Department of State, Bureau of Democracy, Human Rights and Labor 

DSCA Defense Security Cooperation Agency 

DSSI Iraq, Defense and Strategic Studies Institute 

DTL Deputy Team Leader 

E U.S. Department of State, Under Secretary for Economic, Business Energy and 

Agricultural Affairs 

ECA U.S. Department of State, Bureau of Education and Cultural Affairs 

ECF International Monetary Fund, Extended Credit Facility 

ECP Entry Control Point 

ECHR European Convention on Human Rights 

ECtHr European Court of Human Rights 

E&E Europe and Eurasia 

EEB U.S. Department of State, Bureau of Economic, Energy and business Business 

Affairs 

EGAT U.S. Agency for International Development, Bureau for Economic Growth, 

Agriculture and Trade 

ENG Engineer 

EOD Explosive Ordnance Disposal 

ePRT embedded Provincial Reconstruction Team 

ESF Economic Support Fund 

ETDF East Timorese Defense Force 

EU European Union 

EUJUST LEX European Union Integrated Rule of Law Mission for Iraq 

EUPOL Afghanistan European Union Police Mission - Afghanistan 

F U.S. Department of State, Office of the Director of U.S. Foreign Assistance 

FAA	 The Foreign Assistance Act of 1961 

FACT U.S. Department of State, Office of the Coordinator for Reconstruction and 

Stabilization, Field Advance Civilian Teams 

FAST Drug Enforcement Administration, Foreign-deployed Advisory Support Team 

FBI U.S. Department of Justice, Federal Bureau of Investigation 

FCD Future Concepts Directorate, The Judge Advocate General’s Legal Center and 

School 

FDS Field Detention Site 

1 But see supra ch. 2 note 26 

301 Appendix C 

Acronyms 
Rule of Law Handbook - 2011 

FDD Focused District Development 

FID Foreign Internal Defense 

FM Field Manual 

FOB Forward Operating Base 

FOAA Foreign Operations Appropriations Act 

FSN Foreign Service Nationals 

FSO Foreign Service Officer 

FTF Focused Targeting Force 

FUSMO Funding U.S. Military Operations 

FY financial year 

G U.S. Department of State, Under Secretary for Democracy and Global Affairs 

GAO U.S. Government Accountability Office 

GH U.S. Agency for International Development, Bureau for Global Health 

GIRoA Government of the Islamic Republic of Afghanistan 

G/S/GWI U.S. Department of State, Bureau of Office of Global Women’s Issues 

G/TIP U.S. Department of State, Office to Monitor and Combat Trafficking in Persons 

HACC Humanitarian Assistance Coordination Center 

HCT Human Intelligence Collection Team 

HIIDE Handheld Interagency Identity Detection Equipment 

HIPC Heavily Indebted Poor Countries 

HJC High Judicial Counsel (Iraq) 

HN Host Nation 

HOC Humanitarian Operations Center 

HQ Headquarters 

HTT Human Terrain Team 

IA Interagency Acquisition 

IAF Iraqi Armed Forces 

IBRD World Bank, International Bank for Reconstruction and Development 

ICAF Interagency Conflict Assessment Framework 

ICCPR International Covenant of Civil and Political Rights 

I-CERP Iraq Commander’s Emergency Response Fund 

ICESCR International Covenant on Economic, Social and Cultural Rights 

ICITAP	 U.S. Department of Justice, Criminal Division, International Criminal Investigative 

Training Assistance Program 

ICRC International Committee of the Red Cross 

ICS Iraqi Corrections System 

IDA World Bank, International Development Association 

IDLG Independent Directorate of Local Governance (Afghanistan) 

IED Improvised Explosive Device 

IGFC Iraqi Ground Forces Command 

IGOs Intergovernmental Organizations 

IH Investigative Hearing 

IHT Iraqi High Tribunal 

IIP U.S. Department of State, Bureau of International Information Programs 

IJ Investigative Judge 

Appendix C 302 

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IJPO Italian Justice Project Office (for Afghanistan) 

ILF-A International Legal Foundation-Afghanistan 

IMAR Iraqi Military Academy, Ar Rustamiyah 

IMF International Monetary Fund 

IMS Interagency Management System 

INCLE	 International Narcotics, Crime Control and Law Enforcement 

INL U.S. Department of State, Bureau for International Narcotics and Law Enforcement 

Affairs 

INL/AAE	 U.S. Department of State, Bureau for International Narcotics and Law Enforcement 

Affairs, Office of Asia, Africa and Europe Programs 

INL/AP	 U.S. Department of State, Bureau for International Narcotics and Law Enforcement 

Affairs, Office of Asia, Africa and Multilateral Programs 

INL/CIV U.S. Department of State, Bureau for International Narcotics and Law Enforcement 

Affairs, Office of Civilian Police and Rule of Law Programs 

INL/I U.S. Department of State, Bureau for International Narcotics and Law 

Enforcement Affairs, Office of Iraq Programs 

INL/LP U.S. Department of State, Bureau for International Narcotics and Law Enforcement 

Affairs, Office of Americas Program 

INLTC Independent National Legal Training Center 

INPROL	 United States Institute of Peace, International Network to Promote the Rule of Law 

INR U.S. Department of State, Bureau of Intelligence and Research 

IO International Organizations 

IOC Initial Operations Capability 

IORF	 International Operational Response Framework 

IP Iraqi Police 

IPA International Police Assistance 

IPAO	 Iraq Provincial Action Officer (U.S. Embassy) 

IPB Intelligence Preparation of the Battlefield 

IPC Interagency Policy Committee / National Security Council Integration Interagency 

Planning Cell / Interagency Management System 

IPOG National Security Council, Deputies Committee, Iraq Policy Operations Group 

IQC Indefinite Quantity Contract 

IR Iraq Reconstruction 

IRoCC Interagency Rule of Law Coordination Center 

ISAF International Security Assistance Force (Afghanistan) 

ISOF Iraqi Special Operations Forces 

ISB Intermediate Staging Base 

ISF Iraqi Security Forces 

ISFF Iraqi Security Forces Fund 

ISN U.S. Department of State, Bureau of International Security and Nonproliferation 

I-SRC Iraqi Supreme Reconstruction Council 

ITDC Iraqi training and Doctrine Command 

IVLP U.S. Department of State, International Visitor Leadership Program 

IZ International Zone or Iraq 

JA Judge Advocate 

JAGC The Judge Advocate General’s Corps, U.S. Army 

JCP Joint Campaign Plan 

JCS U.S. Department of Defense, Joint Chiefs of Staff 

JEFF Joint Expeditionary Forensic Facility 

303 Appendix C 

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L 

Rule of Law Handbook - 2011 

JIIM Joint, Interagency, Intergovernmental and Multi-National 

JOPPs Joint Operation Planning Process
 

JSU Judicial Security Unit (Afghanistan) 

KJU Kirkuk Jurist Union
 

KRG Kurdish Regional Government (Iraq)
 

U.S. Department of State, Office of the Legal Adviser / U.S. Embassy, Legal 

Adviser 

LAC Latin America and the Caribbean 

LAOTF Law and Order Task Force (Iraq) 

LEP law enforcement professional 

LL Lessons Learned 

LNO Liaison Officer 

LOFTA Law and Order Trust Fund for Afghanistan 

LWA Leader with Associate 

M U.S. Department of State, Under Secretary for Management 

MAAWS Money As A Weapon System 

MACV Military Assistance Command, Vietnam 

MAMT NATO Training Mission – Iraq, Mobile Advising and Mentoring Team 

MCPP Marine Corps Planning Process 

MCR Marine Corps Regiments 

MCTF Major Crimes Task Force (Iraq) 

MCWP Marine Corps Warfighting Publication 

MDMP Military Decision Making Process 

MIPR Military Interdepartmental Purchase Request 

MiTT Military Training Team 

MNC-I Multi-National Corps – Iraq 

MND-B Multi-National Division-Baghdad (Iraq) 

MND-C Multi-National Division- Center (Iraq) 

MND-N Multi-National Division-North (Iraq) 

MNF-I Multi-National Force – Iraq 

MoI Ministry of Interior (Iraq) 

MoJ Ministry of Justice (Iraq) 

MoD Ministry of Defense (Iraq) 

MOU Memorandum of understanding 

MP Military Police 

MPICE U.S. Institute of Peace Measuring Progress in Conflict Environments 

NAC North Atlantic Treaty Organization, North Atlantic Council 

NAS Narcotics Affairs Section (INL Office at Embassies) 

NATO North Atlantic Treaty Organization 

NCC Iraq, National Command Center 

NCIS Naval Criminal Investigative Service 

NCO Non-commissioned Officer 

NDAA National Defense Authorization Act 

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NDS National Directorate of Security (Afghanistan) 

NDSPD National Directorate of Security Prosecution Department (Afghanistan) 

NDU Iraq, National Defense University 

NEA/I U.S. Department of State, Bureau of Near Eastern Affairs / Iraq 

NECC U.S. Navy, Naval Expeditionary Combat command 

NGOs Non-governmental Organizations 

NIIA National Information and Investigative Directorate/Agency (Iraq) 

NJP National Justice Program (Afghanistan) 

NJSS National Justice Sector Strategy (Afghanistan) 

NROLFSM-A NATO Rol of Law Field Support Mission-Afghanistan 

NSC National Security Council 

NSPD National Security Presidential Directives 

NTM-A NATO Training Mission – Afghanistan 

NTM-I NATO Training Mission – Iraq 

OAG Office of the Attorney General (Afghanistan) 

ODA Operational Detachment-Alpha 

OE Operating Environment 

OEF Operation Enduring Freedom 

OET Iraq, Officer Education and Training 

OES U.S. Department of State, Bureau of Oceans and International Environmental and 

Scientific Affairs 

OFDA	 U.S. Agency for International Development, Bureau for Democracy, Conflict and 

Humanitarian Affairs, Office of Foreign Disaster Assistance 

OIF Operation Iraqi Freedom 

OLC U.S. Department of Justice, Deputy Attorney General, Office of Legal Counsel 

OLP U.S. Department of Justice, Office of Legal Policy 

O&M Operations and Maintenance Funds 

OMB Executive Office of the President, Office of Management and Budget 

OMLT NATO Training Mission – Afghanistan, Operational Mentor and Liaison Team 

OPA U.S. Embassy, Office of Provincial Affairs 

OPDAT	 U.S. Department of Justice, Office of Overseas Prosecutorial Development, 

Assistance and Training 

OPTEMPO Operational Tempo 

OSCE Organization for Security and Cooperation in Europe 

OTI U.S. Agency for International Development, Bureau for Democracy, Conflict and 

Humanitarian Affairs, Office of Transition Initiatives 

PA Public Affairs 

PAO Public Affairs Officer or Provincial Action Officer 

PCC National Security Council, Policy Coordinating Committee 

PDO Public Diplomacy Officer (U.S. Embassy) 

PDoP Provincial Director of Police 

PDP Pre-Deployment Preparation 

PERMREP U.S. Permanent Representative to the United Nations 

PIOs Public International Organizations 

PJCC Provincial Joint Coordination Center 

PJCM Provincial Justice Coordination Mechanism 

PKSOI U.S. Army, Peacekeeping and Stability Operations Institute 

305 Appendix C 

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Rule of Law Handbook - 2011 

PL Public Law 

PM U.S. Department of State, Bureau of Political-Military Affairs 

PM NOC Iraq, Prime Minister’s National Operations Center 

PMT Police Mentor Teams 

POC Point of Contact 

PoJ Palace of Justice (Iraq) 

POL OFF U.S. Embassy, Political Officer 

POMLT NATO Training Mission – Afghanistan, Police Operational Mentor and Liaison 

Team 

PRM U.S. Department of State, Bureau of Population, Refugees and Migration 

PRT Provincial Reconstruction Team 

PRT/PRDC Provincial Reconstruction Team/Provincial Reconstruction Development Council 

Projects Program 

PRT/QRF Provincial Reconstruction Team/Quick Response Fund 

PSCs Private Security Companies 

PTT Police Transition Teams 

PVOs Private Voluntary Organizations 

R U.S. Department of State, Under Secretary for Political Affairs 

RAC Rusafa Area Command (Iraq) 

RC-E Regional Command-East 

RCLO U.S. Department of Justice, Regime Crimes Liaison Office (Iraq) 

REO Regional Embassy Office 

RFP Request for Proposals 

RHP Office of the Special Coordinator for Rule of Law and International Humanitarian 

Policy 

RIAB Radio in a Box 

RIPC Rule of Law International Policy Committee (Iraq) 

RLA Resident Legal Adviser 

ROI Report of Investigation 

ROL Rule of Law 

RoLC Rule of Law coordinator (U.S. Embassy) 

RoLFF-A Rule of Law Field Force - Afghanistan 

R&S Reconstruction and stabilization 

RSO U.S. Embassy, Regional Security Officer 

SA Security Agreement between the U.S. and Iraq 

SAA South Asian Affairs 

SBA Stand-By Agreements 

SCA/A U.S. Department of State, Bureau of South and Central Asian Affairs / Afghanistan 

S/CRS U.S. Department of State, Office of the Coordinator for Reconstruction and 

Stabilization 

SCROL The Special Committee on the Rule of Law 

S/CT U.S. Department of State, Office forof the Coordinator for Counterterrorism 

SF Special Forces (U.S. Army) 

S/GAC U.S. Department of State, Office of the U.S. Global AIDS Coordinator 

SHAPE North Atlantic Treaty Organization, Supreme Headquarters Allied 

 Powers, Europe 

SJA Staff Judge Advocate 

Appendix C 306 

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SJSR Security and Justice Sector Reform 

SME Subject Matter Expert 

SOs Strategic Objectives 

SOAgs Strategic Objective Agreements 

SOFA Status of Forces Agreement 

SOG U.S. Marshals Service, Special Operations Group 

SOTF Special Operations Task Force 

SOW Scope of Work 

S/P U.S. Department of State, Policy Planning Staff 

SRSG Special Representative to the Secretary General 

SSR Security Sector Reform 

SSTR Stability, Security, Transition, and Reconstruction 

STT NATO Training Mission – Iraq, Specialist Training Team 

SU U.K. Stabilisation Unit 

S/WCI U.S. Department of State, Office of War Crimes Issues 

T U.S. Department of State, Under Secretary for Arms Control and International 

Security Affairs 

TCAPF	 Tactical Conflict Assessment and Planning Framework 

TDP Targeted Development Program 

TESC NATO Training Mission – Iraq, Training and Equipment Synchronization 

THF Temporary Holding Facility 

TJAGLCS The Judge Advocate General’s Legal Center and School 

TL Team Leader 

TO Task Orders 

TRC Truth and Reconciliation Commissions 

TSE Tactical Site Exploitation 

TTPs Tactics, Techniques and Procedures 

TU Task Units 

TWG Technical Working Groups 

UDHR Universal Declaration of Human Rights 

UK United Kingdom 

UN United Nations 

UNAMA United Nations Assistance Mission in Afghanistan 

UNDP United Nations Development Program 

UNDPKO United Nations Department of Peacekeeping Operations 

UNICEF United Nations Children Fund 

UNITA National Union for the Total Independence of Angola 

UNOCHA United Nations Office for the Coordination of Humanitarian Affairs 

UNSCR United Nations Security Council Resolution 

U.S. United States 

USACE GRD U.S. Army Corps of Engineers, Gulf Region Division 

USACIDC U.S. Army Criminal Investigation Command 

USAID U.S. Agency for International Development 

U.S.C. U.S. Code 

USDA U.S. Department of Agriculture 

USDH U.S. Direct Hires 

USD(P) U.S. Under Secretary of Defense for Policy 

307 Appendix C 

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Rule of Law Handbook - 2011 

USF-I U.S. Forces - Iraq 

USG U.S. Government 

USIP United States Institute of Peace 

USMS U.S. Department of Justice, U.S. Marshals Service 

USPSCs U.S. Personal Services Contractors 

USSF United States Special Forces 

VBC Victory Base Complex, Iraq 

VCI U.S. Department of State, Bureau of Verification, Compliance and Implementation 

VTC Video Teleconference 

WG Working Group 

WHT Witness Handling Teams 

Appendix C 308 

Acronyms