Chapter 6 Legal Support to Military Operations Other Than War

United States military operations in the Republic of Haiti in 1994 and 1995 represented a comprehensive and stunningly successful application of law to fluid and challenging circumstances. Many Americans will recall the tense beginning, when a large combat force entered Haiti peacefully on terms negotiated in the 11^th hour by duly empowered civilian representatives of the United States. Many Americans also will recall how these operations soon achieved the ouster of a dictator, the return to power of an elected Haitian president, and the removal of a threat to regional peace and security. These aspects of the Haiti deployment not only reaffirmed the rule of law, they also held a symbolic and political importance that aroused great popular interest.
Yet other significant applications of law took place day-to-day, at the individual and unit level. Infantry privates balanced initiative with restraint under the rules of engagement while confronting potentially hostile Haitians. Supply clerks distributed food and other items that had been purchased strictly in accordance with acquisition and appropriations laws. Military policemen treated Haitian detainees pursuant both to internal rules and to standards derived from international treaties. Investigating officers performed their duties thoroughly and fairly in gathering evidence about incidents of alleged misconduct. Soldiers, sailors, airmen, and marines remained undistracted by personal concerns, enjoying a sense of security provided by statutory programs of life insurance and legal assistance. With very few exceptions, these men and women in uniform also scrupulously followed orders given by their chain of command, justifying a disciplinary system acknowledged by Congress and the courts to be essential to mission accomplishment.
	Center for Law and Military Operations Law and Military Operations in Haiti, 1994-1995¹⁸⁵

6.1 INTRODUCTION

The last chapter described legal support to operations in war. This chapter describes legal support to military operations other than war (MOOTW) outside the United States. The next chapter describes military operations within the United States.

MOOTW are "[o]perations that encompass the use of military capabilities across the range of military operations short of war. These military actions can be applied to complement any combination of the other instruments of national power and occur before, during, and after war."¹⁸⁶

Although MOOTW and war may often seem similar in action, MOOTW focus on deterring war and promoting peace while war encompasses large-scale, sustained combat operations to achieve national objectives or to protect national interests. MOOTW are more sensitive to political considerations and often the military may not be the primary player. More restrictive ROE and a hierarchy of national objectives are followed. MOOTW are initiated by the National Command Authorities and are usually, but not always, conducted outside of the United States.¹⁸⁷

There are many types of MOOTW, several having multiple components: arms control, combating terrorism, support to counter-drug operations, enforcement of sanctions and exclusion zones, ensuring freedom of navigation and overflight, humanitarian assistance, nation assistance, noncombatant evacuation operations, peace operations, protection of shipping, recovery operations, show of force operations, strikes and raids, support to insurgency, and operating under armistice conditions.¹⁸⁸

MOOTW present significant legal challenges to judge advocates. First, they must understand and relate the national and international political and legal frameworks affecting the specific operation. These frameworks affect command authority, ROE, and the success of operations more than they do in war. Second, they must frequently advise commanders concerning the relationships between international forces, joint forces, non-governmental agencies, private voluntary organizations, and U.S. governmental agencies. Third, they must forge consensus among joint, international, government, and private organizations on legal issues, thereby promoting unity of effort and mission legitimacy. Fourth, they must identify and resolve technical legal issues in specialized, fluid, and uncertain operational situations.

To assist judge advocates who support MOOTW, this chapter will describe the strategic and theater concepts common to MOOTW, the Army's role in MOOTW, unique considerations for organizing legal support for MOOTW, prominent legal issues affecting command and control, sustainment, and support operations in MOOTW, and legal training and equipment requirements. Judge advocates should also read current joint and army doctrinal publications on MOOTW.¹⁸⁹

6.2 STRATEGIC CONCEPT

United States security strategy calls for U.S. leadership abroad - "we must lead abroad if we are to be secure at home . . ."¹⁹⁰ As a result, the U.S. "must be prepared and willing to use all appropriate instruments of national power to influence the actions of other states and non-state actors."¹⁹¹ This leadership requires engagement with U.S. political, economic, and military power to shape the international environment and to promote democracy.¹⁹²

U.S. engagement will be multinational and multidisciplinary. "Durable relationships with allies and friendly nations are vital to our security. A central thrust of our strategy is to strengthen and adapt the security relationships we have with key nations around the world and create new relationships and structures when necessary."¹⁹³ The United States will use an integrated approach to address threats, including superior military forces, a strong diplomatic corps, and foreign assistance program.¹⁹⁴ Frequently, military operations will be in a supportive role or will support a lead agency.¹⁹⁵

"[O]ur national military objectives are to Promote Peace and Stability and, when necessary, to Defeat Adversaries."¹⁹⁶ The first of these requires MOOTW.

Components of these objectives include peacetime engagement and deterrence,¹⁹⁷ and may involve any of a variety of military activities. Military activities such as international exercises, Partnership for Peace, foreign military sales, and military-to-military contacts promote stability, build coalitions, enhance interoperability, and promote democracy.¹⁹⁸ Counterdrug and counterterrorism operations protect Americans and other nationals, and fight drug and terrorist organizations through international cooperation, intelligence and technical support, and nation assistance.¹⁹⁹ Peacekeeping operations support peace agreements and facilitate long term settlements through deployment of military units to monitor and perform other assigned tasks.²⁰⁰ Arms control prevents conflict and reduces threat through treaty verification, weapons security, and weapons seizure, dismantling, or destruction.²⁰¹ Noncombatant evacuation operations protect American citizens abroad and other selected persons by extracting them from a dangerous location to a safe haven.²⁰² Sanctions enforcement of U.S. policy decisions and UN Security Council resolutions includes military operations to interdict movement, prohibit activities in a specific area, or ensure freedom of navigation.²⁰³ Peace Enforcement operations apply military force to maintain or restore international peace and security.²⁰⁴ Military activities also support diplomatic activities such as peacemaking, peace building, and preventive diplomacy.²⁰⁵

6.3 THEATER CONCEPT

There are several unique aspects of the MOOTW theater: the primacy of political objectives, legal complexity, mission complexity, command and control, and interagency coordination.

6.3.1 Political Objectives

"Political objectives drive MOOTW at every level from strategic to tactical."²⁰⁶ Political directives will authorize and prescribe military operations.²⁰⁷ Political organizations frequently take the lead role.²⁰⁸ Political considerations affect how the military conducts operations.²⁰⁹ Political implications may affect the success of the military operation, or require changes in the operation.²¹⁰ "Having an understanding of the political objective helps avoid actions which may have adverse political effects. It is not uncommon in some MOOTW, for example peacekeeping, for junior leaders to make decisions which have significant political implications."²¹¹

6.3.2 Legal Complexity

MOOTW theaters are legally complex for three reasons. First, units conducting MOOTW cannot rely solely on traditional law of war rules regarding the use of force, but must develop ROE that accomplish the mission and protect the force consistent with international law and political directives.²¹² Second, MOOTW frequently involve national, multinational, and international legal authority.²¹³ Reconciling the legal concerns of each nation, or concerns between the U.S. and an international organization, is a challenging task.²¹⁴ Third, the legal issues arising during MOOTW may be specialized and widely varied. Commanders will require legal advice in international law, host nation law, fiscal law, security assistance, command authority, and other issues.²¹⁵

6.3.3 Mission Complexity

MOOTW missions occur simultaneously and sequentially, and involve extensive contact with civilians. "Noncombat MOOTW may be conducted simultaneously with combat MOOTW, such as HA [humanitarian assistance] in conjunction with PEO [peace enforcement operations]. It is also possible for part of a theater to be in a wartime state while MOOTW is being conducted elsewhere within the same theater."²¹⁶ Commanders must plan to transition from war to MOOTW, or from MOOTW to combat.²¹⁷ The mission in Haiti transitioned from sanctions enforcement to peacekeeping, and included plans for simultaneous noncombatant evacuation and either forced or semi-permissive entry into Haiti.²¹⁸

MOOTW missions are complex also because of their impact on civilians. Commanders must be prepared to collect human intelligence concerning political, cultural, and economic factors affecting the operation,²¹⁹ to conduct public affairs, civil affairs, and psychological operations,²²⁰ to provide humanitarian assistance,²²¹ to develop ROE that protect the force without causing civilian casualties,²²² to process civilian detainees,²²³ to process requests for temporary refuge or asylum,²²⁴ and to perform other tasks as the mission requires.

6.3.4 Command and Control

In MOOTW, Theater C2 must account for multinational forces and myriad other organizations. National Command Authorities (NCA) and Joint Command and Control (C2) over the U.S. military remain generally the same as in war.²²⁵ The President will never "relinquish . . . command authority . . . but . . . may . . . place U.S. forces under the temporary operational control of a competent . . . commander."²²⁶

Multinational forces may employ several C2 options: the lead nation option, in which one nation provides most of the forces and exercises operational control of the multinational force; the parallel option, in which a mandating organization selects a commander, each nation contributes proportionally to the staff, and each nation provides the commander some degree of operational control; and the regional alliance option, in which an existing multinational headquarters exercises C2.²²⁷ The United Nations Mission in Haiti is an example of the parallel option.²²⁸ Operation Joint Endeavor in Bosnia is an example of the regional alliance option.²²⁹

6.3.5 Interagency Coordination

Coordination with U.S. agencies, nongovernmental organizations, and private voluntary organizations is essential to understand the situation and society involved,²³⁰ and to ensure unity of effort.²³¹ "For MOOTW outside the United States, the lead agency will normally be the Department of State (DOS) and the U.S. Ambassador will coordinate U.S. activities through an established Country Team with representation from all U.S. departments and agencies in that country, including DOD."²³² A Civil-Military Operations Center (CMOC) can provide effective coordination with nongovernmental and private voluntary organizations.²³³ Forty nongovernmental and private voluntary organizations were in Haiti;²³⁴ four-hundred were in Bosnia.²³⁵ Because there are so many agencies and organizations, each with its unique authority and capabilities, judge advocates should consult the references in footnote 189 of this chapter for more specific information.

6.4 THE ARMY'S ROLE IN MOOTW

The Army's role in MOOTW outside the United States is to perform specific DoD missions, normally as part of a joint force, normally under the lead of DoS, and in coordination with U.S. government, nongovernmental, and private voluntary organizations.²³⁶ These missions involve myriad legal concerns, the most important of which are addressed later in this chapter.

The doctrine on the types of MOOTW, and the interrelationships between them is developing. This section will describe common Army MOOTW missions outside the United States: arms control, combating terrorism, counter-drug operations, sanctions enforcement, humanitarian assistance, nation assistance, noncombatant evacuation operations, peace operations, recovery operations, show of force, strikes and raids, support to insurgencies, and operations under armistice conditions. Because doctrine is developing, judge advocates should consult the current doctrine when planning or conducting an operation.

6.4.1 Arms Control

Arms control is a plan, based upon international agreement, that governs the numbers, types, or characteristics of weapon systems, or the strength, organization, equipment or employment of armed forces.²³⁷ Potential army missions include verifying treaty provisions, seizing weapons of mass destruction, escorting weapon deliveries, or disposing of weapons.²³⁸ The army may also participate in confidence building measures, including inspections, base visits, and equipment demonstrations.²³⁹

6.4.2 Combating Terrorism

Combating terrorism includes antiterrorism and counterterrorism.²⁴⁰ Antiterrorism involves "defensive measures used to reduce the vulnerability of individual and property to terrorist acts, to include limited response and containment by local military forces."²⁴¹ Antiterrorism programs are comprehensive; they include threat analysis, vulnerability assessments, information security, operations security, personnel security, physical security, crisis management planning, tactical measures to contain or resolve incidents, training, and public affairs.²⁴² "A well-planned, systematic, all-source intelligence and counterintelligence program is essential."²⁴³ Counterterrorism is a special operations mission that involves "offensive measures taken to prevent, deter, and respond to terrorism."²⁴⁴ Response measures "include preemptive, retaliatory, and rescue operations."²⁴⁵

6.4.3 Counter-Drug Operations

While counter-drug operations primarily support U.S. law enforcement agencies,²⁴⁶ they also support the national drug control strategy goal of breaking foreign sources of supply.²⁴⁷ Counter-drug support to foreign nations is provided through security assistance programs and civil-military operations.²⁴⁸ Security assistance programs provide equipment needed to meet the drug threat, services related to the equipment, and training in drug enforcement when granted exceptions to restrictions on police training.²⁴⁹ Civil-military counter-drug operations in foreign countries include providing information about the host nation drug culture, cooperative programs to reduce drug trafficking, providing collateral intelligence to host nation authorities, and assisting host nation information programs.²⁵⁰

6.4.4 Enforcement of Sanctions and Exclusion Zones

Sanctions and exclusion zone enforcement are coercive measures to enforce decisions of competent national or international authorities.²⁵¹ The military objectives are to establish barriers to the flow of goods, or to prohibit certain activities in specific geographic areas.²⁵² Operations SUPPORT DEMOCRACY off Haiti in 1993, SOUTHERN WATCH in Iraq in 1992, and DENY FLIGHT in Bosnia in 1993 are examples of sanctions and exclusion zone enforcement.²⁵³

6.4.5 Humanitarian Assistance

Humanitarian Assistance operations "relieve or reduce the results of natural or manmade disasters or other endemic conditions such as human pain, disease, hunger, or privation in countries or regions outside the United States."²⁵⁴ Military support is intended to supplement other agencies, and may include command and control, operational planning, intelligence, logistics, or security.²⁵⁵

6.4.6 Nation Assistance

"Nation assistance is civil or military assistance (other than HA [humanitarian assistance]) rendered to a nation by U.S. forces within that nation's territory during peacetime, crises or emergencies, or war, based on agreements mutually concluded between the United States and that nation."²⁵⁶ Nation assistance includes security assistance, foreign internal defense, and humanitarian and civic assistance programs provided under Title 10 U.S. Code Section 401.²⁵⁷ Security assistance provides defense articles, training, and services under the Foreign Military Sales Program, Foreign Military Financing Program, International Military Education and Training Program, Economic Support Fund, and Arms Export Control Act sales.²⁵⁸ Foreign Internal Defense is a Special Operations mission that enables foreign nations to fight subversion and insurgency.²⁵⁹ These missions include support to security assistance, joint and combined exercises, exchange programs, civil-military operations, sharing intelligence and logistical support, and combat operations when approved by National Command Authorities.²⁶⁰ Humanitarian and civic assistance programs are "provided in conjunction with military operations and exercises, and must fulfill unit training requirements that incidentally create humanitarian benefit to the local populace."²⁶¹ This assistance may take the form of medical, dental, and veterinary care, and rudimentary construction.²⁶²

6.4.7 Noncombatant Evacuation Operations

Noncombatant evacuation operations evacuate U.S. citizens and selected non-U.S. persons from a foreign country.²⁶³ These operations normally include "swift insertions of a force, temporary occupation of an objective, and a planned withdrawal upon completion of the mission."²⁶⁴ Depending upon the specific mission and situation, these operations may require medical and dental support, combat search and rescue, mortuary affairs, public affairs, psychological operations, and command and control warfare.²⁶⁵ Evacuee processing may occur in country or in a safe haven,²⁶⁶ and may involve searching and segregating personnel, inspecting for restricted items, providing logistical, medical, and chaplain support, and requests for asylum or temporary refuge.²⁶⁷

6.4.8 Peace Operations

Peace operations "support diplomatic efforts to reach a long-term political settlement and [are] categorized as peacekeeping operations . . . and peace enforcement operations."²⁶⁸ Military operations such as preventive deployment, military-to-military contacts, or other MOOTW may also support preventive diplomacy, peacemaking, or peace building.²⁶⁹

Peacekeeping Operations (PKO) are "military operations undertaken with the consent of all major parties to a dispute, designed to monitor and facilitate implementation of an agreement . . . and support diplomatic efforts to reach a long-term solution."²⁷⁰ PKO tasks are specific to the mission and may include observing and monitoring compliance, investigating alleged violations, negotiating and mediating with the parties, supervising cease-fires or other aspects of the agreement, and assisting civil authorities.²⁷¹ PKO planning considerations include, but are not limited to, compliance with the international mandate, terms of reference (TOR), and Status of Forces Agreement (SOFA); coordination with nongovernmental organizations and private voluntary organizations; coordinating the sources and funding responsibilities for logistical support; methods for collecting information; developing rules of engagement restrictive enough to comply with the mandate and robust enough to protect the force; procedures for addressing foreign claims; and procedures for handling dislocated civilians.²⁷²

Peace Enforcement Operations (PEO) "are the application of military force or the threat of its use, normally pursuant to international authorization, to compel compliance with resolutions or sanctions designed to maintain or restore peace and order."²⁷³ PEO tasks are also mission specific and may include "enforcement of sanctions and exclusion zones, protection of HA, operations to restore order, and forcible separation of . . . parties" and conducting internment or resettlement operations.²⁷⁴ PEO planning considerations are similar to PKO, but also include more emphasis on intelligence collection, fire support, mobility and survivability; and ROE that enable the use of force to compel compliance while minimizing collateral damage.²⁷⁵

6.4.9 Recovery Operations

"Recovery operations are conducted to search for, locate, identify, rescue, and return personnel or human remains, sensitive equipment, or items critical to national security."²⁷⁶ They may occur in either friendly or denied areas.²⁷⁷

6.4.10 Show of Force Operations

Show of force operations demonstrate U.S. resolve through increased visibility of military forces to influence respect for U.S. interests or defuse a situation.²⁷⁸ These operations may include formation of a joint task force, repositioning of forces, patrolling, or conducting exercises.²⁷⁹

6.4.11 Strikes and Raids

"Strikes are offensive operations conducted to inflict damage on, seize, or destroy an objective for political purposes. . . . An example of a strike is Operation URGENT FURY, conducted on the island of Grenada in 1983."²⁸⁰ "A raid is usually a small-scale operation involving swift penetration of hostile territory to secure information, confuse the enemy, or destroy installations. . . . An example of a raid is Operation EL DORADO CANYON conducted against Libya in 1986, in response to the terrorist bombing of U.S. Service members in Berlin."²⁸¹

6.4.12 Support to Insurgencies

Support to Insurgencies includes U.S. logistic and training support, but normally not combat operations, for an organized movement to overthrow a constituted government.²⁸² An example was U.S. support to the Mujahadin resistance in Afghanistan during the Soviet invasion.²⁸³

6.4.13 Operations Under Armistice Conditions

An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.²⁸⁴ For example, the Korean Armistice Agreement signed on 27 July 1953, shapes the conduct of military operations on the Korean peninsula and there are specific Armistice Rules of Engagement for the Korean theater. Consequently, judge advocates stationed in the Republic of Korea must be familiar with the Korean Armistice Agreement and other sources of international law dealing with armistice agreements.

6.5 ORGANIZATION OF LEGAL SUPPORT

The legal support organization for MOOTW is generally as described in Chapter 2. Nevertheless, because each MOOTW is unique, SJAs must tailor legal support, and must coordinate technical legal supervision, technical support, and augmentation requirements for the specific situation and mission. When tailoring legal support for MOOTW, SJAs should consider mission-specific requirements for legal duties and skills. MOOTW require judge advocates to perform additional mission-specific duties.²⁸⁵ During operations in Haiti, for example, legal personnel supported refugee operations in Panama and Cuba, the Joint Interrogation Facility, the Joint Logistics Support Command, and the United Nations Mission in Haiti headquarters.²⁸⁶ In Bosnia, judge advocates supported each Battalion Task Force, a level of command lower than normal, and served as advisors to Joint Military Commissions.²⁸⁷ During both operations, split-based operations generated requirements for additional legal resources.²⁸⁸

6.6 LEGAL ASPECTS OF C2, SUSTAINMENT, AND SUPPORT OPERATIONS

While SJAs must always provide support in OPLAW and the core legal disciplines described in Chapter 3, SJAs should pay special attention to the following prominent legal concerns arising in MOOTW outside the United States. Although this section outlines only the principal concerns, the potential MOOTW missions, situations, and corresponding legal issues are myriad. Therefore, legal personnel should consult the Operational Law Handbook²⁸⁹ and other legal sources for detailed information about the legal aspects of various types of MOOTW.

6.6.1 Legal Basis for the Operation

The legal basis for an operation derives from international and domestic law, and the decisions of competent authority.²⁹⁰ It may be expressed in U.N. Security Council Resolutions, regional security organization resolutions, international agreements, U.S. National Command Authorities decisions, orders, mandates, terms of reference, or other forms. While U.S. National Command Authorities consider international and domestic legal authority when ordering military operations, judge advocates advising military commanders must know the legal basis for the operation for two important reasons.

First, a clear understanding of the legal basis promotes the legitimacy of the operation. "A clear, well-conceived, effective, and timely articulation of the legal basis for a particular mission will be essential to sustaining support at home and gaining acceptance abroad."²⁹¹ Therefore, OPLAW JAs must understand the legal basis and brief commanders, enabling them "to better plan their missions, structure public statements, and conform their conduct to national policy."²⁹² Commanders' statements and conduct contribute to legitimacy by demonstrating adherence to law and authority.²⁹³ Commanders and judge advocates must also educate the soldiers about the operation's purpose and legal basis. Informing the soldiers will help their morale and improve their ability to communicate and cooperate with local civilians, other nations' forces, and nongovernmental organizations.

Second, the legal basis of the operation guides the commander in many ways. It may affect the operation's purpose,²⁹⁴ scope,²⁹⁵ timing,²⁹⁶ and ROE;²⁹⁷ the status of personnel;²⁹⁸ the command's relationships with military and non-military organizations;²⁹⁹ and the applicable funding authorities.³⁰⁰ Therefore, OPLAW JAs must obtain and study all relevant international organization resolutions and international agreements, the mandate, the terms of reference, and higher command orders. Furthermore, OPLAW JAs must be diligent throughout the planning and conduct of the operation to incorporate legal guidance from these documents into the relevant portions of all operations plans and orders.

6.6.2 Status of Forces

The status of forces is of critical concern to commanders during MOOTW overseas.³⁰¹ Because the jurisdictional default to the Law of the Flag does not normally apply in MOOTW, numerous legal issues affecting the success of the operation must be resolved, including host nation criminal and civil jurisdiction, authority to conduct law enforcement activities including trials by courts-martial, claims against the U.S. or U.S. personnel, authority for U.S. forces to carry arms and use force, force protection, entry and exit requirements, customs and tax liability, contracting authority, authority to provide health care without a local medical license, vehicle registration and licensing, communications support, facilities for U.S. forces, hiring of local personnel, authority to detain or arrest, and provisions for transferring custody.³⁰² These issues can become significant issues for the SJA and the entire command.³⁰³

SJAs and OPLAW JAs must identify and resolve status of forces issues beginning early in the planning process and continuing throughout the operation. There are several strategies available to resolve status concerns. First, look to existing agreements, which should be available at the Unified Command, Component Command, or International and Operational Law Division, OTJAG.³⁰⁴ Second, consider the need for additional agreements and inform the proper authority under Army Regulation 550-51 of any requirements.³⁰⁵ Agreements can be negotiated during or after operations.³⁰⁶ Third, consider whether conventions on the status of United Nations personnel apply and are adequate.³⁰⁷ Fourth, consider whether an agreement is unnecessary because the Law of the Flag applies or there is a jurisdictional vacuum.³⁰⁸ Finally, where compliance with host nation law is required, inform the command of these requirements and consider measures to mitigate the impact on the operation.

6.6.3 International & Interagency Relationships

Information describing the basic relationships existing between military organizations, and with non-military agencies and organizations is provided earlier in this chapter, and in references cited in footnote 5. Commanders will encounter three general concerns involving international and interagency relationships that require judge advocate support: questions concerning command authority,³⁰⁹ requirements for legal liaison and coordination,³¹⁰ and conflicting legal concerns.³¹¹

SJAs and OPLAW JAs must perform several important tasks relating to these concerns. They must advise commanders about their legal authority in relation to other commands, agencies, and organizations.³¹² They must coordinate legal advice and actions with all relevant commands, agencies, and organizations. They must perform liaison as directed by the commander, which may include liaison with the International Committee of the Red Cross and legal officers in other troop contributing nations, participating in the Civil-Military Operations Center, and giving briefings for the Joint Military Commission.³¹³ Finally, they must take the initiative to find innovative solutions to conflicting legal concerns.³¹⁴

6.6.4 Use of Force & Rules of Engagement (ROE)

The general principles and judge advocate tasks relating to the interpretation, drafting, dissemination, and training of ROE discussed in Chapter 8 and the Operational Law Handbook apply in MOOTW.³¹⁵ The general purposes of ROE-to accomplish the mission and protect the force-also remain valid.³¹⁶ U.S. forces will always retain the inherent right of self-defense.³¹⁷ The Chairman of the Joint Chiefs of Staff (CJCS) Standing ROE (SROE) will generally, but not always, apply in MOOTW.³¹⁸

Nevertheless, there are several unique ROE concerns in MOOTW. "ROE in MOOTW are generally more restrictive, detailed, and sensitive to political concerns than in war . . ."³¹⁹ Restrained, judicious use of force is necessary; excessive force undermines the legitimacy of the operation and jeopardizes political objectives.³²⁰ MOOTW ROE considerations may include balancing force protection and harm to innocent civilians or non-military areas,³²¹ balancing mission accomplishment with political considerations,³²² protecting evacuees "while not having the authority to preempt hostile actions by proactive military measures,"³²³ enabling soldiers to properly balance initiative and restraint,³²⁴ determining the extent to which soldiers may protect host nation or third nation civilians,³²⁵ and the use of riot control agents.³²⁶ In multinational operations, developing ROE acceptable to all troop contributing nations is important.³²⁷ Being responsive to changing ROE requirements is also important.³²⁸

SJAs and OPLAW JAs will be much more involved in ROE interpretation, drafting, dissemination, and training during MOOTW.³²⁹ Interpretation must consider not only the SROE or other applicable higher headquarters ROE, but also the legal authority for the operation, mandate, and specific political objectives.³³⁰ Drafting must address considerations such as those discussed in the previous paragraph, and account for the specific concerns of each troop contributing nation.³³¹ Dissemination must be prompt and responsive throughout all levels of command, from the appropriate political authority to the individual soldier.³³² Training should include vignettes, in which soldiers role-play expected situations and train to respond in accordance with the ROE.³³³

6.6.5 Treatment of Civilians

SJAs and OPLAW JAs face significant challenges regarding the commander's legal obligations toward civilians: determining an individual's status, identifying the specific legal rules that apply, and applying legal rules in a wide variety of operational situations. Generally, while the law of war will not normally govern MOOTW, DoD Dir. 5100.77 and Chairman of the Joint Chiefs of Staff Instruction 5810.01 require U.S. forces always to apply the principles of the law of war in MOOTW as a matter of policy.³³⁴ Beyond this, however, the issues become complex.

The legal complexity relates to the three challenges identified above. The status of civilians encountered may include U.S. civilians, host nation civilians, third country civilians, diplomats, media, criminals, host nation civilian officials, armed civilian groups, international organization employees, non-governmental and private voluntary organization personnel, refugees, contractors on the battlefield, and other personnel.³³⁵ The applicable law will always include the principles of the Law of War, and may also include the customary international law of human rights, the Universal Declaration of Human Rights, human rights treaties, provisions of Protocols I & II, or host nation law.³³⁶ The operational situations may include maintaining public order,³³⁷ applying military force,³³⁸ providing humanitarian assistance,³³⁹ processing evacuees,³⁴⁰ media relations,³⁴¹ handling refugees or requests for asylum,³⁴² enforcing civilian compliance with mandates,³⁴³ detentions,³⁴⁴ or other situations.

SJAs and OPLAW JAs must perform several important tasks relating to the treatment of civilians. First, they must begin early in the planning process to identify the situations in which civilians will be encountered and the applicable law.³⁴⁵ Second, as noted in the previous section, they must include guidance relating to the treatment of civilians in the ROE. Third, the SJA must coordinate with Civil Affairs personnel regarding the SJA's role as the sole legal advisor to the commander.³⁴⁶ Fourth, they must be immediately accessible for legal advice as situations occur.³⁴⁷ Fifth, they must ensure that detention of civilians is lawful: that detention is based upon proper authority; that the conditions are adequate; and that procedural safeguards are honored.³⁴⁸

6.6.6 Fiscal Responsibility

U.S. fiscal law applies to U.S. forces even when they are part of a multinational force or support U.N., NATO, or other allied or coalition operations. Congressional controls exist to ensure prudent use of public resources, and to promote foreign policy objectives.³⁴⁹ For an overview of fiscal law issues and funding sources, SJAs and OPLAW JAs should consult the Operational Law Handbook.³⁵⁰

Fiscal law issues will pervade the MOOTW theater.³⁵¹ They will arise in all types of MOOTW.³⁵² They will relate to a wide variety of activities, including training, humanitarian and civic assistance, construction, medical care, transportation, maintenance, LOGCAP, post exchange privileges, morale and welfare programs, and other activities.³⁵³ Requests for support may come from the host nation, U.S. agencies, allies and coalition partners, local civilians, non-government and private voluntary organizations, international military headquarters, the Army itself, and other sources.³⁵⁴ SJAs and OPLAW JAs must be prepared to expend substantial time and effort with fiscal issues.³⁵⁵

SJAs and OPLAW JAs should consider the following procedures and strategies when resolving fiscal issues. First, review all operational plans for compliance with fiscal law.³⁵⁶ Second, as early as possible in the planning process, determine what logistical support agreements exist or are required; many fiscal issues can be resolved through effective use of support agreements.³⁵⁷ Third, analyze fiscal issues using this six-step analysis:³⁵⁸

Determine the commander's intent.

Define the mission and specific task to be performed.

Break down the mission into discrete parts.

Find the funding authority and appropriation, considering both U.S. funding sources and other funding sources.³⁵⁹

Articulate the rationale for the specific expenditures.

Seek approval from higher headquarters when necessary.

Fourth, recommend that the commander establish multidisciplinary logistics and acquisition boards; provide legal advice to these boards.³⁶⁰ Fifth, consider innovative solutions learned from recent experiences.³⁶¹

6.6.7 Intelligence Oversight

MOOTW require "multi-disciplined, all-source, fused intelligence;" human intelligence may be the most useful component.³⁶² Intelligence support is critical to all types of MOOTW.³⁶³ Intelligence collection in MOOTW focuses on "political, cultural, and economic factors that affect the situation" rather than on an enemy's military capability.³⁶⁴ As a result, intelligence collection and counterintelligence operations involve substantial contact with non-government organizations, private voluntary organizations, the local populace, and allied or coalition partners.³⁶⁵ Because of sensitivities that exist when working with non-military organizations or in U.N. operations, it is frequently appropriate to use the term "information gathering" rather than "intelligence collection."³⁶⁶

Many intelligence organizations have organic legal support; nevertheless, SJAs and OPLAW JAs must provide intelligence law advice to their own organizations in the development and oversight of operations.³⁶⁷ Therefore, SJAs and OPLAW JAs must be familiar with the legal rules relating to intelligence operations,³⁶⁸ have the security clearances required to access relevant information,³⁶⁹ and be prepared to resolve sensitive intelligence law issues.³⁷⁰ Technical legal support from SJA, U.S. Army Intelligence and Security Command can assist SJAs and OPLAW JAs with these issues.

6.7 LEGAL TRAINING REQUIREMENTS

The general training principles and procedures in Field Manual 25-100, Field Manual 25-101, and chapter 4 of this manual apply to MOOTW training.³⁷¹ In particular, SJAs must always ensure all legal personnel are proficient in individual skills such as land navigation, handling classified material, first aid, weapons qualification, etc.,³⁷² and that legal organizations are proficient in collective tasks relating to OPLAW and the core legal disciplines. Training for MOOTW, like training for war, requires legal personnel to receive and provide individual and collective training, and to train with the units they support.³⁷³

Nevertheless, MOOTW require mission-specific skills.³⁷⁴ First, judge advocates must have political-military skills. In Bosnia, the legal advisor to the Joint Military Commission advised the commander on the application of the Dayton Accords and drafted correspondence to the military and political factions.³⁷⁵ Other judge advocates coordinated multinational ROE, provided advice concerning persons indicted for war crimes, and communicate with government and non-government organizations.³⁷⁶ Second, deployed legal organizations must have host nation expertise - an understanding of the local law, and the ability to communicate in the local language.³⁷⁷ Third, deployed legal personnel may require specialized expertise. Special Operations units, which conduct many MOOTW missions, require legal advisors who know special operations missions, structure, doctrine, and tactics.³⁷⁸ In Haiti, experts in civilian legal and judicial functions were required to assist the newly restored Aristide government.³⁷⁹

SJAs should emphasize the following aspects of MOOTW individual training: situational training exercises involving ROE, individual readiness training for the specific operation, and interagency and international cooperation.³⁸⁰ Training in interagency and international cooperation should improve cultural awareness, understanding of the roles of various organizations, and consensus-building skills.³⁸¹

SJAs should become heavily involved in MOOTW mission rehearsal exercises (MRE). First, SJAs must become involved early in MRE planning to ensure the legal aspects of the specific mission are integrated into the mission rehearsal exercise scenario. Second, SJAs should ensure the scenario addresses training needs of two audiences: the command and staff at all echelons, and their legal personnel. Third, SJAs should ensure that deploying legal personnel participate in the exercise with their supported units.³⁸² Fourth, SJAs should ensure that experienced and well-trained legal personnel act as observer-controllers. SJAs of superior commands must provide or coordinate the technical support required to ensure the success of the MRE.

6.8 LEGAL EQUIPMENT REQUIREMENTS

The facilities and equipment generally required to provide legal support described in Chapter 2 are sufficient for legal support to MOOTW. Recent experience in MOOTW confirms the requirements for the RDL, Internet access, electronic legal research capabilities, connectivity with tactical command, control, and communication systems, secure communication and storage capabilities, and dedicated vehicles.³⁸³ SJAs and OPLAW JAs must ensure that RDLs are pre-loaded with the software packages and research materials required for the operation, that battle boxes are adequately supplied, and that other military equipment and office supplies are on hand, and ready for use.³⁸⁴

6.9 SUMMARY

MOOTW present significant challenges to judge advocates. They must master the complex political and legal frameworks common to MOOTW, provide competent advice concerning the roles of various organizations involved in an operation, forge consensus among numerous military and non-military organizations, and resolve technical legal issues. Thorough understanding of the strategic and theater concepts, diligent participation in the planning and conduct of MOOTW, and mastery of the prominent legal issues are essential to accomplishment of the military mission and political objectives.

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