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TitleRule of Law Handbook - A Practitioner's Guide for Judge Advocates
LanguageEnglish
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Total Pages329
Table of Contents
                            COVER PAGE
TITLE PAGE
Preface
Foreword
Table of Contents
CHAPTER I. - Introduction
CHAPTER II. - Defining the Rule of Law Problem
	A. Describing the Rule of Law
		1. Definitions of the Rule of Law
		2. A Definition of the Rule of Law for Deployed Judge Advocates
		3. Formalist vs. Substantive Conceptions of the Rule of Law
	B. Rule of Law Operations
		1. Rule of Law Operations Within the Context of Full Spectrum Operations
		2. Operational Impact
		3. The Importance of Focusing on Effects
CHAPTER III. - Key Players in Rule of Law
	A. US Policy and Players – Interagency Coordination
	B. Post-Conflict Interagency Structure
		1. US National Security Presidential Directive 1 (NSPD-1)
		2. US National Security Presidential Directive 44 (NSPD-44) and the Reconstruction and Stabilization Civilian Management Act of 2008
		3. Department of Defense Directive 3000.5
		4. US Agencies Influencing Post-Conflict Operations
	C. US Governmental Agencies Involved in Rule of Law
		1. Department of State
		2. United States Agency for International Development (USAID)
		3. Department of Justice (DOJ)
		4. Department of Defense (DOD)
	D. US Embassy and its Country Team
	E. United States Institute of Peace (USIP)
	F. International Actors
		1. United Nations
		2. International Monetary Fund (IMF)
		3. World Bank
		4. The North Atlantic Treaty Organization (NATO)
	G. Non-Governmental Organizations (NGOs)
	H. Coalition Partners
		1. Coalition Restrictions
CHAPTER IV. - The International Legal Framework for Rule of Law Operations
	A. Identifying a Rule of Law Legal Framework
		1. United Nation (UN) Mandates
		2. Mandates Pursuant to Bilateral and Multi-lateral Agreements
		3. Mandates Pursuant to National Legislation
	B. The Rule of Law Legal Framework
		1. The Law of War
		2. Occupation Law
		3. Human Rights Law
	C. Conclusion
CHAPTER V. - The Institutional and Social Context for the Rule of Law
	A. Legal Institutions
		1. Legislatures
		2. Courts
		3. Police
		4. Detention and Corrections
		5. Military Justice
	B. Civil Law Systems
		1. The Civil Law Ideal of Separation of Powers
		2. Specific Aspects of Civil Law
		3. Recommended Readings
	C. Religious Legal Systems and Sharia Law
	D. Combined Systems
	E. Recognized Alternatives to the Court System
		1. Mediation
		2. Arbitration
		3. Other Traditional Remedies
		4. Truth and Reconciliation Commissions
		5. Property Claims Commissions
	F. The Implications of Gender for Rule of Law Programs
	G. Civil Society
		1. Operational Objectives for Engaging, Leveraging, and Supporting Civil Society
		2. How to Engage with Civil Society in Rule of Law
		3. Conducting a Baseline Assessment in this Sector
		4. Common Challenges and Lessons Learned to Guide Implementation
	H. Non-State Security Providers
		1. Assessing the Role of Non-State Security Providers
		2. Ten Lessons Learned
CHAPTER VI. - Planning for Rule of Law Operations
	A. The Military Planning Process
		1. Why Planning is Important
		2. What is Planning?
		3. The Military Decision Making Process
		4. Conclusion
	B. Practical Planning Considerations Specific to Rule of Law Operations
		1. Pre-deployment Planning (-180 to -30 D day)
		2. Initial Deployment Planning (-30 to +90 D day)
		3. Sustained Deployment Planning (+91 to indefinite)
	C. Practical Approaches for Conducting Assessments within Rule of Law Operations
		1. Assessments During the Pre-deployment Phase (-180 to -30 D day)
		2. Assessments During Initial Deployment (-30 to +90 D day)
		3. Assessments During Sustained Deployment (+90 D day to indefinite)
	D. Practical Approaches for Measuring Progress within Rule of Law Operations
		1. Pre-deployment Metrics
		2. Initial Deployment Metrics (-30 D day to +90)
		3. Metrics During Sustained Deployment (91+ D day to indefinite)
	E. Interagency Reconstruction and Stabilization Planning Framework
		1. Introduction
		2. The State Department’s Five-Sector Framework for Reconstruction and Stabilization
		3. The Army Primary Stability Tasks
		4. Conclusion
	F. Conclusion
CHAPTER VII. - Fiscal Considerations in Rule of Law Operations
	A. Purpose
		1. Introduction
		2. General Prohibition on Retaining Miscellaneous Receipts and Augmenting Appropriations
	B. Funding US Military Operations (FUSMO) and Rule of Law Activities
		1. Foreign Assistance Generally
		2. Department of State Appropriations for Rule of Law Activities
		3. Department of State Economic Support Fund
		4. Bureau of International Narcotics and Law Enforcement Affairs Funding
	C. Department of Defense Appropriations for Rule of Law Operations
		1. Iraq Security Forces Fund (ISFF) / Afghanistan Security Forces Fund (ASFF)
		2. Commander’s Emergency Response Program (CERP)
		3. Iraqi Funded Commander’s Emergency Response Program (I-CERP)
	D. Funding Rule of Law Operations Through Provincial Reconstruction Teams
		1. Provincial Reconstruction Teams and Embedded Provincial Reconstruction Teams
		2. Funding Rule of Law Operations via PRTs, ePRTs and other CMOs
CHAPTER VIII. - Challenges to the Rule of Law
	A. Security
	B. Military Bias for Lethal Operations and Competing Priorities
	C. Interagency Friction and Coordination
	D. Forces that Oppose Rule of Law
	E. A Legacy of Suffering and Destruction
	F. Corruption
	G. Language and Notional Barriers
	H. Cultural Blindness or a “West is Best” Mentality
	I. Sustainability and Resources
	J. Tyranny of Distance
	K. Legal Obligations
	L. Unrealistic Expectations
CHAPTER IX. - Theater-Specific Information on Rule of Law - Afghanistan and Iraq
	A. Afghanistan
		1. Overview
		2. The Plan for Rule of Law
		3. The International Framework
		4. US Government Efforts
		5. Provincial Reconstruction Teams
		6. The Legal System of Afghanistan
		7. Successful Rule of Law Practices in Afghanistan
		8. References and Further Reading
	B. Iraq
		1. International Framework
		2. Provincial Reconstruction Teams
		3. Iraqi Criminal Law and Criminal Procedure
		4. Security Agreement
		5. Engaging Iraqi Judges
		6. References and Further Reading
CHAPTER X. - Rule of Law Narratives
	A. A Continued Case Study: Rule of Law in Afghanistan Counter-Insurgency Operations
		1. Introduction
		2. Receiving the Rule of Law Baton
		3. Racing Afghan Rule of Law Programs Forward
		4. Passing the Rule of Law Baton
	B. Reconciling Security and Rule of Law While Coordinating US Military and Civilian Efforts
		1. Rule of Law, Security, and Stability
		2. The Civil/Military Tension in Rule of Law Capacity Building: Establishment of the IROCC
		3. State Department Leadership in Reconstruction and Stabilization
		4. Conclusion
	C. Rule of Law in Afghanistan: A View from the Top
		1. Differing Institutional Cultures in USG Agencies and the Role of the Rule of Law Coordinator
		2. The State of Development Efforts in Afghanistan
		3. The View of the International Development Effort From the Ground in Kabul
		4. The US Rule of Law Effort in Afghanistan
		5. Coordinating US Efforts
		6. The Way Ahead
CHAPTER XI. - Rule of Law Project Descriptions
	A. Prosecution Task Forces and Warrant Applications in Multinational Division-Center
	B. Linking Up Investigative Judges with Investigators
	C. Scenario Based Criminal Investigator Training for Iraqi Police in Northern Iraq
	D. Mudhouse is Born in Wasit Province
	E. Finding an Iraqi Solution to Overcrowded Prisons in Basrah
	F. Bringing Rule of Law to a Developing National Operations Center
	G. Integrating Rule of Law with Foreign Internal Defense
                        
Document Text Contents
Page 1

THE JUDGE ADVOCATE GENERAL'S
LEGAL CENTER lit SCHOOL, US. ARMY

(ENTIR FOR LAW AND MILITARY OPERATIONS

'...

Page 2

RULE OF LAW HANDBOOK �
A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES �

2009

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

Center for Law and Military Operations �

Charlottesville, Virginia 22903 �

[email protected]
[email protected]

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Rule of Law Handbook

Example: Rule of Law Mission Analysis

Your division commander has received the mission to improve the rule of law in
his AO. Intelligence resources and your communication with the host nation and
interagency rule of law partners in the region all indicate that the popular
perception is that the justice system and police are sectarian in their
administration of justice. This popular perception is fueled by insurgent leaders
and insurgent propaganda. The current state is that most of the population does
not trust the criminal justice system, views the judges and police as controlled by
sectarian influences, and seeks protection and justice through local militias of
their own sect.

The center of gravity that must be defeated is the popular perception that the
judges are police are corrupt because they are motivated by sectarian influences
instead of following the law. A CCIR will be developed to determine whether
there is a factual basis for the popular perception. If there is no factual basis for
the popular perception, then the commander and rule of law practitioner are faced
with a public information challenge. If there is a factual basis for the popular
perception, then the problem is more challenging.

The staff and commander decide to assess their progress with measures of
performance that will include the number crimes reported to the police by the sect
not in power, and measures of effectiveness including periodic interviews with
community and tribal leaders concerning the legitimacy of the police and courts,
and periodic informal surveys of opinion leaders in the community.

This example shows how the commander and staff sought to understand the
underlying problems concerning the rule of law operational environment,
identified a center of gravity, identified critical information needed for further
decision making, and developed some measures that relate to their progress in
achieving the desired rule law end state. The next step in the process is to develop
various ways to create the desired end state. This next step is known as course of
action development.

c) Step 3: Developing Courses of Action

As the result of the first two steps, the commander and staff will understand the current
operational environment with regard to the rule of law and will understand the desired end state.
The next step in the process is to develop various ways to get from the current condition to the
desired end state, known as course of action (COA) development.

Based on the commander’s guidance and the results of step 1, the staff generates options
for COAs. A good COA will create the desired effects and end state. Brainstorming is the
preferred technique for generating options. It requires time, imagination, and creativity, but it
produces the widest range of choices. The staff should remain unbiased and open-minded in
evaluating proposed options. Staff members quickly identify COAs that are not feasible due to
factors in their functional areas. They also quickly decide if a COA can be modified to
accomplish the requirement or should be eliminated immediately. (FM 5-0, para 3-124)

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Rule of Law Handbook

In developing COAs, staff members determine the doctrinal requirements for each type
of operation being considered, including doctrinal tasks for subordinate units. (FM 5-0, para. 3­
125) The rule of law practitioner will be invaluable in this process. Unlike kinetic operations,
there is no well established doctrine that informs rule of law operations. The rule of law
practitioner must be both well-read in stability operations doctrine, COIN doctrine, and past rule
of law programs and must be creative in devising new programs to accomplish the desired
effects in the operational environment.

Creative thinking is critical. Creative or innovative thinking is the kind of thinking that
leads to new insights, novel approaches, fresh perspectives, and whole new ways of
understanding and conceiving things. (FM 5-0, para. 2-14) Creative thinking is not a mysterious
gift, nor does it have to be outlandish. Innovation and creative thinking are required as the
commander and staff operating in the rule of law arena may be operating in an arena in which
they have little training or experience. But working outside of the comfort zone encompassed by
subject matter one has been thoroughly trained in is a requirement for all military officers, and it
will be nothing new to your fellow staff officers. Collaboration with host nation resources and
interagency partners is essential in brainstorming possible courses of action.

Armed with the comprehensive situational understanding and sound grasp of the desired
end state derived from the mission analysis, the innovative rule of law practitioner can help the
staff in developing alternative ways to accomplish the desired effects.

Staffs developing COAs ensure each one meets these screening criteria:

Feasible. The unit must be able to accomplish the mission within the available time,
space, and resources.

Acceptable. The tactical or operational advantage gained by executing the COA must
justify the cost in resources, especially casualties. This assessment is largely
subjective.

Suitable. A COA must accomplish the mission and comply with the commander’s
planning guidance. The rule of law practitioner should ensure that the staff does not
lose sight of the desired end state – a legal system that is perceived by the population
to be legitimate. Therefore, it is important not to overlook public education and
information operations components of any course of action.

Distinguishable. Each COA must differ significantly from the others. This criterion is
also largely subjective.

Complete. A COA must show how:

The decisive operation accomplishes the mission.

Shaping operations create and preserve conditions for success of the decisive
operation.

Sustaining operations enable shaping and decisive operations. (FM 5-0, para. 3­
113)

After developing COAs, the staff briefs them to the commander. A collaborative session
may facilitate subordinate planning. The COA briefing includes:

An updated IPB.

Chapter VI - Planning 146

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Rule of Law Handbook

ISOF counter-intelligence team and backstopped by OCE reporting through their source
networks.

In order to set the conditions for success in this process of requesting traveling judges,
CJSOTF-AP took a “white paper” drafted by a Baghdad OCE and published it across CJSOTF-
AP as guidance to the teams in how to prepare local national witnesses for testifying before an
Investigative Judge. It also contained smaller points such as requirements of lodging, Iraqi food,
and a general template on how to set up a room for the Investigative Judge – all of these small
points focused towards building rapport and mutual respect between CJSOTF-AP and the
Investigative Judges.

Near the middle of May 2009, the Law and Order Task Force (LAOTF) that had worked
with a set of Investigative Judges, the Joint Investigative Committee (JIC) out of CCCI-Rusafa,
extended its operations to Central Criminal Court of Iraq – Khark (CCCI-K). Through
coordination with Multi-National Force-Iraq SJA and Rule of Law Coordinator, CJSOTF-AP
began discussions with LAOTF to employ the CCCI-K JIC Investigative Judge for CJSOTF-AP
“Rocket Docket.” After vetting of this JIC Investigative Judge through ISOF counterintelligence
and the CJSOTF-AP J2, a proof-of-principle (PoP) CONOP was developed between CJSOTF-
AP and LAOTF to bring this JIC Investigative Judge to Mosul and Baqubah to support the ISF
units at these locations that were partnered with CJSOTF-AP assets. Bringing an Investigative
Judge from Baghdad was essential because local Iraqi witnesses were willing to testify before an
Investigative Judge from Baghdad, but not before a local Investigative Judge. It was also
impractical to use the other existing mechanism, rotating circuit judges, because of
inconsistencies in the standards applied by new judges when they arrived in Mosul. Having a
single Investigative Judge from Baghdad provided both the legitimacy and consistency
necessary.

Upon arrival at Mosul, the JIC Investigative Judge and his criminal investigators were
greeted and by the Mosul ISOF RCB reconnaissance commander, who also provided lodging and
food. After breakfast the morning after their arrival, the IJ and the criminal investigators sat
down with the Mosul ISOF RCB reconnaissance commander and discussed the general situation
in Mosul, what types of targets they were focusing on, and the general details for the source
network that the witnesses would be coming from to testify before the IJ.

After this professional discussion, the witnesses were brought in one by one, first to the
criminal investigators for their preliminary testimony and then to the IJ. Over two days 15 local
national witnesses testified against various terrorist and insurgent networks. Based on the
testimony of the 13 local Iraqi witnesses who testified,4 the IJ issued of 86 arrest warrants. Near
the end of the second day, another professional discussion was held so that the JIC Investigative
Judge could provide both positive feedback on the hearings as well as suggestions for
improvement, a degree of professional and cooperation we found quite impressive.

After Mosul, the mobile judicial team travelled to Baqubah, where the Baqubah R-ERU
followed a similar procedure, providing the criminal investigators and the IJ with testimony from
six local Iraqi witnesses who testified on various terrorist and insurgent networks operating in the

4 Two of the 15 witnesses failed to bring their required four forms of identification and were consequently
not heard by the IJ.

309 Chapter XI - Project Descriptions

Page 329

Baqubah area. Based on the testimony of these six local national witnesses, 38 arrest warrants
were issued by the IJ. A similar professional development session was conducted between the
JIC Investigative Judge and the Baqubah R-ERU deputy commander.

After about a week following the CJSOTF-AP and LAOTF liaison officers’ return to
base (RTB), the Baqubah R-ERU captured nine of the criminal detainees based on the recently
issued Arrest Warrants. Based on the initiatives of the team leader in Baqubah, he requested the
authorization to have the Baqubah R-ERU convoy the nine criminal detainees to Victory Base
Complex (VBC) for transfer into the CJSOTF-AP Temporary Holding Facility (THF). The team
leader believed that this would give the local population an understanding of the professionalism
of the Baqubah R-ERU and also allow the Baqubah R-ERU “pride in ownership” of this
operation from start to finish, both top-priority goals of CJSOTF-AP’s FID LOO. The transport
to Baghdad was successfully completed, and the detainees, with their Gensia cards and physical
evidence from the site exploitation were transported to the CJSOTF-AP THF for inprocessing
without incident. Once inprocessed into the CJSOTF-AP THF, the LAOTF liaison officer was
informed and began coordinating the docketing of the Investigative Hearings for the nine
criminal detainees before the JIC Investigative Judge. Because, under Iraqi Criminal Procedures,
criminal investigators are not allowed in Iraqi Courts, we had to provide separate facilities for the
criminal investigators and the IJ to conduct their separate interviews of the detainees. CJSOTF-
AP THF assets lead by a CJSOTF-AP liaison officer escorted the criminal detainees to their
preliminary interviews with the criminal investigators and later escorted the criminal detainees to
their Investigative Hearings at CCCI-K before the JIC Investigative Judge in order to gain a
Detention Order / Referral to Trial. The results of the Investigative Hearings were then related
through the SOTF to the Baqubah team leader to be shared with the Baqubah R-ERU
commander and then disseminated among the local population in order to foster a sense of
professionalism and legitimacy in the eyes of the local population for the Baqubah R-ERU.

By undertaking a functional approach to the targeting problem, we were able to put in
place a sustainable process that took the targeting methodology used by our partnered ISF forces,
nested it within the Iraqi Criminal Procedures Law, and made it responsive to the mission of
disrupting terrorist and insurgent activity.

Chapter XI - Project Descriptions 310

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